Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: followed
It is clear enough that a failure to address a Convention claim clearly made by a protection visa applicant which gives rise to a well-founded fear of persecution amounts to the Tribunal constructively failing to exercise its jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 18-19, [58] . 40 In NABE [2004] FCAFC 263 ; 144 FCR 1 at 18-21, [58] - [63] , the Full Court (Black CJ, French and Selway JJ) discussed the circumstances in which a claim to persecution for a Convention reason must be addressed by the Tribunal. Their Honours said that the Tribunal may be required to consider a claim not expressed by the visa applicant but open on the facts, provided it is squarely raised, that is provided that it is apparent on the face of the material before the Tribunal. They said at 19, [60], that the Tribunal is not obliged to deal with claims which are not articulated and which do not "clearly arise before from the materials it". In that case, no jurisdictional error was found to exist because the putative social group put forward by the appellant was not in respect of a group which was a "substantial clearly articulated argument relying upon established facts". 41 In the submissions, counsel for the appellant referred to several passages in the material before the Tribunal which were said to have identified the nature of the claim, even if not expressly articulated. 42 They were firstly in the appellant's statutory declaration accompanying the protection visa application. (I put aside the fact that the first proposed ground of appeal is premised upon the basis that the document was not provided to the Tribunal by the appellant, and that the appellant asked the Tribunal to place no or little weight on it). It generally refers to the appellant's father in 1994 being involved with religious activities in their home area, and helping other community members, including helping to organise a religious festival which led to a hostile atmosphere between Buddhists and Muslims in the area. It also refers to the appellant from mid 2000 as a Buddhist monk engaging in community activities, and from May 2001 in religious activities in his family region where he attracted the attention of local fundamentalist Muslims. The concluding parts of that statement complains of discrimination against Buddhists generally in Bangladesh, and as he devoted himself to their interests in his family region of him attracting "fierce enmity" from the leaders of the local society. He then asserts having been persecuted "for my faith in Buddhist religion", including "selective harassment of the person as an individual or a member of a group". (That last reference is one of six descriptions of persecution, the others of which do not apparently focus upon the appellant as distinct from other Buddhists. The statutory declaration accompanied the protection visa application, which identified the fear of persecution as being for his religious belief. 45 In my judgment, the second proposed ground of appeal must also fail. Upon analysis of the appellant's claims as presented to the Tribunal, he did not positively identify a claim based other than upon his religious beliefs as a Buddhist monk. Specifically, he did not either expressly, or by the articulation of the material he relied upon, identify separately a social group comprising socially active or politically active Buddhist welfare workers within the Buddhist community. At one point, his migration agent in a submission to the Tribunal describes him as "a social organiser within his community" but there is no identification of a separate and refined social group of the type now asserted: cf NABE 144 FCR at 21, [68]. The fact is, in my view, that no social group of that character was suggested to the Tribunal: cf STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61 ; (2006) 231 ALR 556 at [39] .