Case: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: discussed
line between a claim apparent on the face of the material before the Tribunal and a claim which depends for its exposure on constructive or creative activity by the Tribunal may not always be easy to detect. However, I think it is clear on which side of the line this case falls because the case now put is quite a different one to the case put to the Tribunal. In my respectful opinion, the words of Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at 479 [1] are apposite: "Proceedings before the Tribunal are not adversarial; and 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." In applying the relevant principles to the facts, it is worth repeating the facts as to how the appellant has formulated his claims at various stages. In this application for a protection visa, the appellant claimed that he had a well-founded fear of persecution because he was a male member of his family and he was at risk of being killed by members of an opposing family. A blood feud had arisen as a result of disputes over land ownership. Before the Tribunal, the appellant claimed that he had a well-founded fear of persecution because: (1) he is a member of a particular social group ("male Albanian child") and will suffer persecution because of that membership; or (2) he is a member of a particular social group ("Kulak (landowner) family") and he will suffer persecution because of that membership; or (3) he has an imputed political opinion by reason of his membership of the group referred to in (2) and he will suffer persecution because of that political opinion. Before the Federal Magistrates Court, the appellant maintained the claims he had made before the Tribunal. In essence, the appellant's submission was that the Tribunal erred in not making findings as to whether there were particular social groups properly described as "male Albanian child" and "Kulak (landowner) family". That submission was rejected. On appeal to this Court, the appellant reformulated his claim. As I understood his submission, he accepts that he is now putting his claim on the ground that he has a well-founded fear of persecution for reasons of membership of a particular social group consisting of his family, and that s 91S of the Act must be considered. The appellant also accepts that his well-founded fear of persecution arises because of events surrounding the conduct of Uncle Ded on 25 April 1997. The appellant's argument is put in this way. The relevant family member for the purposes of a consideration of the effect of s 91S is Uncle Ded. However, he has a Convention reason for his fear of persecution because he fears persecution for reasons of his membership of a particular social group, being "Albanian householders who had resisted armed encroachment onto their property". The submission is that there was no reason to disregard Uncle Ded's fear of persecution, and no reason to disregard the appellant's fear of persecution. It followed that the appellant's fear of persecution arose because of his membership of a particular social group, being his family. The Tribunal failed to consider this claim and thereby fell into jurisdictional error. There are a number of reasons why the appellant's argument must be rejected. First, the appellant, with legal assistance and the advantage of the Tribunal's decision in relation to his parents' claims, formulated social groups for the purpose of the Tribunal hearing that were quite different from those formulated in this appeal. Namely, they did not relate to his family and the actions of one particular member of the family. The social groups formulated by the appellant avoided altogether (in terms of the formulation of the social group) an examination of the appellant's family and the actions of one particular member of the family. This point is not decisive, but it is a relevant consideration.