SZTAD v Minister for Immigration and Border Protection

JUDGE: BROMBERG J DATE: 21 NOVEMBER 2014 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Circuit Court of Australia published as SZTAD v Minister for Immigration & Border Protection & Anor [2014] FCCA 1812. By that judgment, a judge of the Federal Circuit Court of Australia (primary judge) dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 7 June 2013 affirming the decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Protection (Class XA) Visa (protection visa). 2 The appellant is a citizen of Zimbabwe. She first arrived in Australia on 23 February 2012. She applied for the protection visa on 26 April 2012. The appellant's mother also applied for a protection visa on that date. The mother's visa application was successful. The appellant also has a brother in Australia who was granted a protection visa in 2005. 3 Before the Tribunal, the appellant claimed to fear persecution based on her sexuality and her political beliefs. Those claims were dismissed by the Tribunal. The first eight grounds of review pressed before the primary judge related to the manner in which the Tribunal dealt with those claims. As there is no challenge in this Court to any of those matters, they need not be further considered. 4 There was only one ground of appeal raised in the notice of appeal. That ground relates to the Tribunal's consideration of whether the appellant was entitled to a protection visa as a family member under the criterion specified by s 36(2)(b) of the Migration Act 1958 (Cth) (the Act). 5 Section 36(2) of the Act provides: A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) ...; or (b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa; or ... (emphasis added) 6 In relation to the definition of "member of the same family unit", s 5(1) of the Act contains the following definitions: "member of the family unit" of a person has the meaning given by the regulations made for the purposes of this definition. "member of the same family unit": one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. 7 Reg 1.12 of the Migration Regulations 1994 (Cth) (the Regulations) provides: (1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is: (a) ...; or (b) a dependent child of the family head or of a spouse or de facto partner of the family head; or ... 8 The Regulations relevantly further provide: Reg 1.03 Definitions "dependent" has the meaning given by regulation 1.05A. "dependent child", of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who: (a) has not turned 18; or (b) has turned 18 and: (i) is dependent on that person; or (ii) is incapacitated for work due to the total or partial loss of the child's bodily or mental functions. Reg 1.05A Dependent (1) ... (2) A person (the first person) is dependent on another person for the purposes of an application for: (d) a Protection (Class XA) visa; or… (ea) a Refugee and Humanitarian (Class XB) visa; or (i) a Temporary Safe Haven (Class UJ) visa; if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support. (emphasis added) 9 There are a number of observations made in the reasons of the Tribunal which either refer to, or may relate to, the s 36(2)(b) criterion. Those passages are: [18] Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a 'member of the same family unit' as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that 'member of the family unit' of a person has the meaning given by the Regulations for the purposes of the definition. [21] In her protection visa application the applicant states that she is 29 years of age and was born in Kwekwe, Zimbabwe. … [22] The applicant's brother was granted a protection visa in 2005 but is currently residing in America. The applicant's mother has lodged an application for a protection visa which was determined by this Tribunal. The applicant and her mother are residing together in Australia but were living independently in Zimbabwe. [34] In regards to questions about her activities here in Australia the applicant stated she lived with her mother and worked part time and largely kept to herself. She had not involved herself in the gay community in Sydney. [50] As set out above the applicant has a brother in Australia who was granted a protection visa in 2005 and her mother has also lodged a protection visa application. The applicant does not, however satisfy s 36(2)(b) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. The applicant is independent of both her mother and brother as they are of her. Accordingly, the applicant does not satisfy the criterion in s 36(2). 10 The ground raised on the appeal relates to [75]-[79] of the primary judge's reasons for judgment, where the primary judge said: [75] Ground 9 asserts that the RRT did not properly consider whether the applicant was a dependent child of her mother at the time of decision. Certainly, if the applicant claimed to be dependent on her mother, it was necessary for the RRT to consider whether the applicant was a dependent child as required by s.36(2)(b) of the Act and regs.1.12, 1.03 and 1.05A of the Migration Regulations 1994 (Cth). [76] As stated above, the RRT found that the applicant "is independent of both her mother and brother as they are of her." That finding was made in the context of the RRT noting that the applicant has a brother in Australia who was granted protection in 2005 and a mother who has also lodged a protection visa application. [77] However, a fair reading of the RRT's decision record does not suggest that the applicant ever made a claim, either before the RRT or the Delegate, to have been dependent upon her mother, as contemplated by s.36(2)(b) of the Act. The applicant tendered a transcript of the RRT's decision record and of her interview with the Delegate. The Court was not referred to any part of those transcripts in support of a claim by the applicant that she was dependent on her mother. [78] Indeed, the evidence before the RRT was that the applicant and her mother lived independently in Zimbabwe, although resided together in Australia. I am not persuaded that the bare statement by the applicant that she and her mother reside together in Australia is sufficient to support a contention that such a claim was raised on the evidence or material before the RRT. Without further articulation, I do not accept that the applicant was seeking to raise a claim in support of her application for protection that she was dependent on her mother. The function of the RRT is to respond to the case that the applicant advances (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 405 per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364 at [17] per Selway J; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]- [60] per Black CJ, French and Selway JJ). [79] Accordingly Ground 9 is not made out. 11 By her ground of appeal, the appellant asserted that in considering whether the appellant was entitled to a protection visa under s 36(2)(b) of the Act, the Tribunal was required to consider whether the appellant (in the words of Reg 1.05A) "wholly or substantially relied on [her mother] for financial, psychological or physical support" but had failed to consider or apply that criterion and thus fell into jurisdictional error. The appellant complains that the primary judge should have identified that jurisdictional error but failed to do so because her Honour erred in two relevant respects. First, the appellant contended that the primary judge applied "the NABE Principle", in circumstances where that principle was not applicable. The reason relied upon for that contention was that the Tribunal was aware that the appellant had made a claim as a family member of her mother and dealt with and rejected that claim. Secondly, the appellant contended in the alternative that if it was necessary for the appellant to satisfy the "NABE Principle", she did satisfy that principle and the primary judge erred in finding otherwise. 12 The appellant's reference to the "NABE Principle" is a reference to the observations made by Black CJ, French and Selway JJ in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [58]: The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the "case" articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised "squarely" on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb "squarely" does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. 13 The appellant's contention that NABE was inapplicable was developed by the oral submissions of her Counsel. The Tribunal's function was said to be to determine whether it is satisfied that an applicant is a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees. The exercise of that function, so the appellant contended, was not limited by reference to the actual claim or claims raised by the applicant. 14 NABE was said to have application only where the Tribunal had failed to deal with a claim raised by an applicant. It was contended that NABE identified what the Tribunal was obliged to do (ie determine claims that are raised by an applicant) but did not restrict what the Tribunal was entitled of its own motion to do. In that respect, it was suggested that a distinction existed between the Tribunal's duty and its power. 15 The appellant's contentions are misconceived. The relevant authorities make it abundantly clear that the Tribunal's review function, like that of the Minister's function whose decision it is charged to review, is not at large, but is limited to responding to the case that an applicant for a visa advances. 16 The extent to which the Tribunal may exercise its powers is governed by the scope of the statutory function or jurisdiction conferred on the Tribunal. That the scope of the Tribunal's function is limited to responding to the case that an applicant advances is clear from the following observations made in NABE at [60] and [62]: [60] In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that "[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances". He also referred to the observation by von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 that "[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made" (at [16]) … [62] Whatever the scope of the Tribunal's obligations it is not required to consider criteria for an application never made. The application for protection visas by a mother and her children on the basis that they were refugees was not required to be considered as though it were an application in their capacity as the family of a man who had been granted a temporary protection visa: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [31]-[32]. Gleeson CJ generalised from this, albeit in dissent, in S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1]: Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process. 17 Whether an applicant has made a claim is a question to be objectively determined. Just as the Tribunal cannot curtail its statutory task by failing to appreciate and determine a claim made by an applicant, the Tribunal cannot enlarge its statutory task by identifying and dealing with claims that were never made. 18 The primary judge at [78] correctly identified the Tribunal's function. The appellant's first challenge must be rejected. 19 The appellant's second challenge accepts that the principles set out in NABE are applicable. The appellant contends that the primary judge was wrong to conclude that the appellant did not raise a claim as a dependent family member. The appellant conceded that no such claim was articulated by her, but relying on NABE, the appellant contended that such a claim was "raised by the material or evidence". 20 The appellant relied on the following facts and circumstances before the Tribunal to contend that it was apparent that a claim was being raised that she was entitled to a protection visa as a dependent of her mother: (i) the appellant's mother had made a claim for a protection visa and (by the time the Tribunal determined the appellant's application), her mother had been granted a protection visa; (ii) the appellant was her mother's daughter; (iii) the appellant lived with her mother; (iv) the mother and daughter lived in a one bedroom apartment; (v) by the time of the Tribunal's hearing, the appellant could no longer afford to engage a migration agent; (vi) at the time the appellant applied for a protection visa she was not working; (vii) at the time of the hearing before the Tribunal the appellant was working part-time; and (viii) the appellant only had one friend. 21 The Minister denied that those facts and circumstances made it apparent that the appellant had raised any claim as a dependent. Further, the Minister contended that the appellant's approach was selective and referred to the following facts and circumstances: (i) when the appellant made her application for a visa she was represented by a representative who was both a migration agent and a solicitor. The assistance given to the appellant by her solicitor/migration agent included assisting her with filling in the pro-forma forms by which she made her application for a protection visa; (ii) the appellant made her application on a form headed "Application for an Applicant who wishes to submit their own claims to be a refugee". That application stated that the appellant's mother was in Australia, was a relative of the appellant but was not a member of the same family unit and not included as such in the appellant's application; (iii) written statements provided by the appellant in support of her application made no suggestion that the appellant claimed to be a dependent of her mother; (iv) when the appellant told the Tribunal that she lived with her mother, she said "we rent the place"; (v) when the appellant informed the Tribunal that she could no longer afford a migration agent she said "we weren't able to afford him"; (vi) the appellant's evidence about the extent of her paid work suggested that it was extensive; and (vii) the appellant told the Tribunal that prior to leaving Zimbabwe she had finished college, she had a good job and she could take care of herself. 22 It was not apparent on the face of the material before the Tribunal that the appellant was making a claim as a dependent of her mother on the basis of the s 36(2)(b) criterion. The material before the Tribunal would not have suggested to a reasonably competent Tribunal member that the appellant was attempting to demonstrate that she was a dependent of her mother in a general sense let alone "wholly or substantially reliant on her mother for financial, psychological or physical support". The facts and circumstances upon which the appellant relies do not either individually or collectively suggest that the appellant was attempting to demonstrate dependence on her mother, and the context in which those facts either arose or were communicated are entirely unsupportive of a suggestion that the appellant was pursuing a claim based on that dependence. The fact that despite the benefit of legal assistance, the appellant did not articulate any such claim is also significant. For those reasons, the primary judge did not err in concluding that the appellant did not raise a claim as a dependent of her mother. 23 There is one aspect of the appellant's submission which I should also deal with. The appellant relied upon the following observation made by Allsop J in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]. The observation was set out with approval by Mansfield, Gilmour and Foster JJ in Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287 at [70]. The observation made by Allsop J appears to have been made about the word "apparent" at the end of [58] of NABE. His Honour said: Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy. 24 In the main, the observations here made by Allsop J do not assist the appellant's case. However, the appellant sought to rely on a suggestion in his Honour's observations that an apparent claim includes a claim that was appreciated as such by the Tribunal. I do not accept that Allsop J intended to suggest that a claim not apparent on the material before the Tribunal but misappreciated by the Tribunal as having been made, was to be regarded as apparent. Properly understood, Allsop J was propounding an objective standard by reference to "a reasonable competent tribunal" and was obviously intending the consistent application of that standard. Thus, when a reasonably competent Tribunal either has or should have appreciated the existence of a claim, the claim is to be regarded as apparent. 25 The appellant contended that the Tribunal erred in concluding that she did not satisfy the s 36(2)(b) criterion because the Tribunal failed to consider that criterion and in particular failed to consider whether the appellant "was wholly or substantially reliant on [her mother] for financial, psychological or physical support". 26 The Tribunal was obliged by s 430 of the Act to set out in its reasons its findings on any material questions of fact. The Tribunal's reasons do not do that in relation to the material facts raised by the s 36(2)(b) criterion and in particular those facts material to the question of whether the appellant was "wholly or substantially reliant on [her mother] for financial, psychological or physical support". As I said in Alexander v Australian Community Pharmacy Authority (2010) 265 ALR 424 at [56], there is ample authority for the proposition that a failure by a decision-maker to include a matter in a statement of reasons required by the governing statute may justify an inference that the matter was not taken into account. 27 If the question had arisen, I would have drawn such an inference. I would have therefore rejected the Minister's Notice of Contention and accepted the appellant's submission that the Tribunal did not consider the s 36(2)(b) criterion. 28 However, that question does not arise because the question of whether the appellant satisfied the s 36(2)(b) criterion should not have been dealt with by the Tribunal. As the appellant made no such claim it was unnecessary for the Tribunal to have dealt with it. In doing so, the Tribunal exceeded its jurisdiction. But that error is not relied upon by the appellant and could be of no assistance to her in pursuing the relief she has sought by this appeal. 29 It follows that the appeal must be dismissed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.