Case: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: referred to
At the hearing, the appellant raised and focussed almost exclusively on the argument that the RRT committed jurisdictional error by failing to consider whether, independent of the appellant's status as a former member of MwM, the appellant was likely to face persecution in Kenya as a political activist. In effect, this claim had three components. First, the appellant suggested that, apart from his membership in MwM, he might face persecution as a former political activist generally. Secondly, he argued that, given his prior political activity, he would be likely to engage in such activity in the future and would suffer persecution as a result. Thirdly, the appellant raised the possibility that, if returned to Kenya, he would abstain from political activity because of the threat of persecution. Referring to the facts and holding of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 (" S395 ") the appellant argued that this would itself be considered a form of persecution. 9 Counsel for the appellant noted that, after the hearing before the RRT, the appellant's advisor filed further submissions with the RRT. These submissions included additional country information. Most relevantly, the advisor submitted a report dated 18 February 2005 from the UN Office for the Coordination of Humanitarian Affairs that detailed continuing human rights abuses in Kenya after the fall of the Moi regime. Counsel argued that, faced with this information, the RRT should have considered whether the appellant would be at risk of persecution as a former political activist and as someone who would be likely to engage in political activity if he were to return to Kenya. Counsel also contended that the RRT had failed to have regard to this country information or any other such information relating to the situation in Kenya after the fall from power of Daniel Arap Moi. 13 Further, the first respondent contended that the appellant's argument was without merit. The respondent accepted that, in some circumstances, the RRT might be required to consider a claim that had not been expressly raised before it, but the respondent submitted that the RRT had not been obliged to do so in the present case. The first respondent noted that the appellant had been legally represented before the RRT and that these representatives had filed submissions on his behalf after the RRT's hearing. The respondent cited the following passage from NABE (at [58]): " 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] FCAFC 120 ; (2003) 199 ALR 265 at 273 [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. " The first respondent argued that the appellant's new claims were not apparent on the face of the material before the RRT. The first respondent submitted that a close review of the material before the RRT showed that the appellant clearly limited his claims to his past involvement in MwM and had not referred to activism generally or his activities if returned to Kenya. The RRT was not required, so the respondent submitted, to be creative and the information before the RRT did not give rise to any such claim as that now made. In the first respondent's submission, the country information could not be said to raise such a new claim as it was not specific to the appellant and said nothing about the appellant's future behaviour. Accordingly, the RRT was not in error not to consider whether the appellant might be persecuted as a political activist generally. Further, there was no basis for the appellant's submission that this case raised considerations analogous to S395 . 19 Secondly, an examination of the material before the RRT makes manifest that the appellant clearly limited his claims to his past involvement in MwM. He did not refer to the position of other activists or liken his position to theirs, and he said nothing about his own activities or their curtailment if returned to Kenya. There is no factual basis in this case that would support an approach analogous to that in S395. Further, this is not a case in which it can be said that the RRT has failed to make a finding on "a substantial, clearly articulated argument relying upon established facts" such that there has been a failure to accord procedural fairness or constructive failure to exercise jurisdiction: see and contrast Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ. This is because there was no such argument. To adapt the language of the Full Court of this Court in NABE , this was not a case that obliged the RRT to consider the claim as it is now formulated by the appellant because the claim did not clearly arise from the material before the RRT: see NABE at [58] and [60]-[62].