Anc17 v Minister for Immigration
[2020] FCCA 707
•30 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANC17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 707 |
| Catchwords: MIGRATION – Protection – temporary protection visa – refusal – review of Immigration Assessment Authority (“IAA”) decision – whether a person’s occupation could be a characteristic fundamental to their identity or conscience for the purposes of s.5J of the Migration Act 1958. MIGRATION – AYY17 v Minister for Immigration & Border Protection [2017] FCCA 2886 disapproved. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 473CA, 473CB, 473BB, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB, 474 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | ANC17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 366 of 2017 |
| Judgment of: | Judge Cameron |
| Hearing date: | 2 March 2020 |
| Date of Last Submission: | 2 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 30 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr O Jones |
| Solicitors for the Applicant: | Unisaj Legal |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 366 of 2017
| ANC17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Iraq who arrived by boat at Christmas Island on 3 April 2013 without a visa permitting him to enter and stay in Australia. On 15 June 2016 he lodged an application for a temporary protection visa (“TPV”) with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Iraq from the Shia militia because of his ethnicity as a Sunni Muslim and because of his previous work as a barber. On 21 November 2016 a delegate of the first respondent (“Minister”) refused the applicant’s application and referred his matter for review to the second respondent (“IAA”). The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
In these judicial review proceedings the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
FAST TRACK REVIEW LEGISLATIVE FRAMEWORK
On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
Definitions
Section 5(1) of the Act relevantly defines a “fast track applicant” as a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii)who has made a valid application for a protection visa in accordance with the determination;
The applicant is a fast track applicant.
Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant was such an applicant.
Fast Track Process and Procedures
Part 7AA of the Act sets out the IAA fast track process and procedures.
Section 473CA is found in pt.7AA and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review. Section 473CB relevantly provides:
473CB Material to be provided to Immigration Assessment Authority
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b)material provided by the referred applicant to the person making the decision before the decision was made;
(c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; …
Division 3 of pt.7AA of the Act sets out the manner in which fast track reviews are conducted. Section 473DA provides that that division and ss.473GA and 473GB are to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews. The relevant sections of div.3 relevantly provide:
473BB Definitions
In this Part
…
new information has the meaning given by subsection 473DC(1).
…
473DB Immigration Assessment Authority to review decisions on the papers
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
…
473DC Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
…
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA
Since 18 April 2015, the Act has prescribed the conditions for the grant of a protection visa relevantly in the following terms:
36 Protection visas—criteria provided for by this Act
…
(2)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 because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …
(2A) A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
…
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)conceal an innate or immutable characteristic of the person; or
(c)without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
…
(b)the persecution must involve serious harm to the person; and
…
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)a threat to the person’s life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
…
BACKGROUND FACTS
Protection visa claims
The applicant’s written claims for protection were made in his TPV application on 15 June 2016. He also gave oral evidence at an entry interview on 29 May 2015 and a departmental interview on 16 September 2016. As summarised by the IAA, the applicant relevantly made the following claims:
The applicant … attended primary school and two years of intermediate school, leaving at that time to become an apprentice at his father's barber shop. He worked as a barber for his father and later on in another salon. When his father retired he and his brother …took over the shop. He attended compulsory military service in the 1990s but was a barber in the army, he did not receive weapons training;
… In 2012 a number of barber shops/hairdressers were targeted and the owners threatened. The applicant considered changing his line of work and applied for positions with the government and an oil company, but without success. [His brother] refused to be put off by the threats and continued to open the shop as usual. [One day in] 2012 he opened up the shop and was … shot and killed;
The applicant was unable to continue working in the shop after [his brother’s] murder. He sold the shop …
The IAA’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. The IAA’s findings were summarised by the Minister in his written submissions in the following terms:
5.The Authority accepted that the applicant was a Sunni Muslim from Basra province in Iraq. For the reason of the consistency in the presentation of the claim, the applicant [sic] was satisfied that the applicant and his brother received a number of threats related to running a barber shop and that demands had been made of them to close the business. The Authority accepted that they did not do so, and as a result the applicant’s brother was shot and killed in June 2012. The Authority accepted the applicant sold the business and came to Australia. The Authority was not satisfied of the applicant’s claims in connection with harm arising from his religion due to an absence of any detail provided.
6.Whilst accepting the applicant had a subjective fear of harm arising from his former work as a barber, the Authority was not satisfied that the fear was objectively well-founded. That was because the applicant had ceased operating a barber shop, as demanded by the militias that had targeted him, and his evidence [sic] was not to recommence that business if returned. The Authority also took into account country information regarding potential risks to those who had formerly engaged in operating a barbershop or hairdressing business.
7.The Authority considered having regard to s.5J(3) of the Act that the applicant could take reasonable steps to avoid persecution by seeking to work in another field than barbering/hairdressing, and that such action would not conflict with a character fundamental to his identity or conscience, would not conceal an innate or immutable characteristic of himself, and would not constitute any other modification contemplated by s.5J(3)(c).
8.The Authority further accepted the applicant had a subjective fear of persecution based on his religion, but noting that he had been able to practise his religion in Iraq, noted he did not alter his behaviour or conceal his religious beliefs. The Authority found the applicant was able to carry out his religious beliefs in Basra without adverse consequences. The Authority also took into account country information, in particular a recent UK Home Office report, concerning the risk of harm to Sunnis in the southern governates of Iraq.
9.The Authority was not satisfied that the applicant had a profile as a Sunni who had previously operated a barber shop that would place him at relevant risk of harm. The Authority was further not satisfied of the applicant’s additional claim that he would be subject to societal prejudice and nepotism in the search for work in the government or petrochemical industries. The Authority was not satisfied that such discrimination he may encounter would amount to serious harm under 5J. The applicant also raised a claim in connection with the 2014 data breach from the Department of Immigration’s website. The Authority found the applicant faced no real chance of being harmed on this basis.
10.The Authority was not satisfied Australia had protection obligations to the applicant under s.36(2)(a). For the same reasons, and noting the ‘real chance’ test and ‘real risk’ test for purposes of considering complementary protection claims, the Authority was not satisfied Australia had protection obligations to the applicant under s.36(2)(aa). [references omitted]
I adopt that summary.
PROCEEDINGS IN THIS COURT
The applicant’s amended application alleged:
1.The Tribunal made a jurisdictional error in relation to
s 5J(3)(a) of the Migration Act 1958 (Cth).
a.The Tribunal found at paragraph 12 of its decision that the Applicant had been a barber all of his life and had already considered changing his career when he and his brother first received threats in 2012;
b.The Tribunal found at paragraph 4 of its decision that the Applicant had considered changing his career when a number of barber shops / hairdressers were targeted and the owners threatened.
c.
The Tribunal found at paragraph 12 of its decision that the Applicant’s work as a barber was not fundamental to his identity within the meaning of
s 5J(3)(a) of the Act;
d.The Authority under the law of legal unreasonableness could not make a finding fact for which there was no evident and intelligible justification (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 [SZVFW] at [10] and [82]) and which was material to the Authority’s decision (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]);
e.Proper, genuine and realistic consideration required the Authority to engage in an active intellectual process directed towards the Applicant’s case (see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [45]; Minister for Home Affairs v Omar [2019] FCAFC 188 at [36]-[43][Omar]);
f.A characteristic is fundamental to a person’s identity within the meaning of s 5J(3)(a) where it is of central importance to the person’s identity. It is not relevant for this purpose whether a person has taken reasonable steps to suppress that characteristic within the meaning; and
g.There was no relevant basis for the Tribunal to conclude that the Applicant’s entire working life as a barber was not of central importance to his identity. The Tribunal did not engage in an active intellectual process with respect to the importance of a chosen and long-standing career to a person’s identity. The Tribunal did not ask whether the Applicant’s career was of central importance to his identity and it was not relevant that, in light of harm on account of the career, the Applicant had taken reasonable steps to avoid practising that career.
2.The Tribunal made a jurisdictional error in finding that the Applicant did not face a real chance of relevant harm in the event he resumed practising as a barber.
a. The Tribunal found at paragraph 11 of its decision that, by reference to the DFAT Country report on Iraq, that the particular employment types who may be targeted seemed to be limited to media professional and journalists;
b.The Tribunal found at paragraph 11 of its decision that, by reference to the Finnish Immigration service, the position of barbers in Baghdad had improved and they had not experienced any harassment related to their occupations;
c.The Tribunal found at paragraph 11 of its decision that the other country information before it, particularly from the United Kingdom, was silent on the issue;
d.Proper, genuine and realistic consideration required the Authority to engage in an active intellectual process directed towards the Applicant's case (see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [45]; Minister for Home Affairs v Omar [2019] FCAFC 188 at [36]-[43]);
e.The “what if I am wrong” test laid down in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 required the Tribunal, in the event that a finding of fact was reached without sufficient certainty, to consider the consequences in the event that the finding was wrong;
f.The Authority did not engage in proper consideration with respect to the information from the Finnish Immigration Service. The Service at p 18 n 180 relied for its assertion as to barbers on the DFAT Country Report on Iraq from 2013. The Authority did not consider the significance of the fact that later DFAT reports made no such claims as to improvement in the position of barbers and the absence of harassment on account of their profession;
g.The Authority's findings otherwise concerned what seemed to be the case due to the absence of information with respect to barbers from other countries; and
h.The Authority's findings were in all of the circumstances tentative and it should have applied the “what if I am wrong” test.
CONSIDERATION
Ground 1
The first ground of the amended application could have been pleaded more clearly. Although it purports to be a single allegation of jurisdictional error, in fact it alleges multiple errors. It alleges that the IAA’s decision is affected by jurisdictional error because the IAA:
a)did not engage in an active intellectual process with respect to the importance to a person’s identity of a long-standing, chosen career;
b)made a finding, that the applicant’s occupation was not central to his identity, which was unreasonable because it lacked an evident and intelligible justification; and
c)took an irrelevant consideration into account, namely, when considering the importance of the applicant’s career to him, whether the applicant had taken “reasonable steps” to avoid pursuing his career so as to avoid risking the harm he claimed to fear.
Simpler and better pleading would have clarified the matters in issue.
The paragraph of the IAA’s reasons which is relevant to all these allegations is para.12 where it was said:
Section 5J of the Act provides in any event that the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification. The applicant is 43 years of age and has been a barber all of his working life. He has been unemployed since June 2012. Nevertheless, I find that to modify his conduct by not working as a barber or hairdresser would not conflict with a characteristic that is fundamental to his identity or conscience; would not conceal an innate or immutable characteristic of himself, or would not constitute any other modification contemplated by s.5J(3)(c). The applicant had already considered changing his career, when he and his brother first received threats in 2012, and had applied for some jobs with the government and in the petrochemical industry. I am not satisfied that being a barber constitutes an innate characteristic of himself that he is unable to alter or that it is one fundamental to his identity or conscience. I am also satisfied that the applicant can take reasonable steps to avoid persecution by seeking work in another field than barbering/hairdressing. In accordance with s5J(3), he does not have a well-founded fear of persecution on this basis.
First allegation
The applicant submitted that “it is surely apparent” that the chosen career of a person is capable of being of central importance to that person and consequently fundamental to their identity. So much can be accepted. However, he went on to argue that the IAA had not grappled with that idea, which I do not accept because para.12 of the IAA’s reasons is directed to that very question and to conduct that indicated that the applicant’s career did not have that level of significance for him.
Second allegation
The IAA observed that the applicant had considered changing his career when threats were received in 2012 and had applied for different jobs. That consideration reflects the applicant’s evidence recorded at para.10 of the IAA’s decision:
In considering whether there would be a real chance that he would be harmed if he returned to work as a barber in Iraq, the applicant has maintained that he would not work again as a barber, due to concerns about this profession being targeted as well as the unhappy memories associated with the work.
The IAA’s statement that:
I am not satisfied that being a barber constitutes an innate characteristic of himself that he is unable to alter or that it is one fundamental to his identity or conscience.
reflects an appreciation of that willingness to find other work. It also reflects a consideration by the IAA of how important it was to the applicant to be a barber. The IAA relied on the applicant’s conduct in seeking other work, which was inconsistent with the idea that being a barber was fundamental to his identity or conscience, to reach its conclusion that being a barber was not central to his identity. In his address in reply the applicant pointed out that his decision to change occupations followed the 2012 threats and the murder of his brother, the implication being that his decision had been taken under duress and said nothing about the significance of his former career to him. However, his evidence rehearsed at para.10 of the IAA’s decision indicates that his reasons were more complex than that and the IAA’s reasons were not expressed to depend on the threats made in 2012.
I am therefore not persuaded that it was unreasonable of the IAA to conclude that being a barber was not fundamental to the applicant’s identity or conscience.
Third allegation
I am similarly unpersuaded by the contention that the IAA should have had no regard to the steps which the applicant took to seek different work in order to avoid risking the harm he claimed to fear. Those were evidentiary matters to which the IAA could assign such weigh as it considered appropriate, not matters which the law said should not have been taken into account.
Generally
In reaching these conclusions I have had regard to the reasons of Judge Vasta in AYY17 v Minister for Immigration & Border Protection [2017] FCCA 2886. His Honour held in that case that s.5J(3)(a) should be read ejusdem generis with s.5J(3)(c), such that the latter governs the construction of the former with the result that because a person’s career is not a matter mentioned in s.5J(3)(c) it cannot be a characteristic that is regarded by the Act as fundamental to a person’s identity or conscience under s.5J(3)(a). With all respect to his Honour, I believe that conclusion to be plainly wrong. Section 5J(3)(c) expressly states that it does not limit the operation of, relevantly, s.5J(3)(a). That has the consequence that the ejusdem generis rule does not have the application which his Honour identified: Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 679 per Mason J.
Ground 2
The second ground of the amended application relied on para.11 of the IAA’s reasons:
The 2015 DFAT Country report on Iraq discusses targeting of specific groups of interest, including particular employment types. Targets on this basis seem to be limited to media professionals and journalists, who may be targeted by security forces as well as militia. Of relevance is information from the Finnish Immigration Service that the position of barbers and hairdressers seems to have improved in Baghdad. They have not experienced any harassment related to their occupations. In the post-civil war years, they were killed and their salons destroyed. In 2013, hairdressers and beauty salon employees organised a festival to celebrate their trade. New beauty salons and fitness centres have been opened in Baghdad. The other country information before me, particularly the reports from the UK home office, are largely silent on this issue, other than to note that on the basis of Daesh's extremist interpretation of shariah [sic], individuals dressing differently would be at a higher risk of violence and discrimination in areas controlled by them. Basra is not controlled by Daesh. I am satisfied that there is not a real chance that the applicant in particular, or barbers in general, would be targeted by security forces, by Shia militia or by Daesh/1S1S in Basra for reason of their occupation.
The IAA went on to find, in para.17 of its reasons, that:
… the applicant's previous profession of barber no longer places the applicant at risk of harm and it would appear that he was not at risk of harm once he had closed his barber shop.
The comments concerning the situation of barbers and hairdressers found in the Finnish Immigration Service’s report cited by the IAA were drawn from a 2013 report of the Australian Department of Foreign Affairs and Trade (“DFAT”): Affidavit of Siddique Panwala filed 19 February 2020.
In this ground, which might usefully have been split up to reflect the fact that it contained more than one allegation, the applicant alleged that:
a)the IAA did not “engage in proper consideration with respect to” information from the Finnish Immigration Service; and
b)the IAA’s findings were tentative so it should have applied the “what if I am wrong” test.
First allegation
In his written submissions, the applicant argued in relation to the first allegation that the IAA had:
... not grappled with the fact that the Finnish Immigration Service simply refers back to the Australian DFAT, in circumstances where the Australian DFAT did not state the same conclusion in its 2015 report … . The Authority ought to have engaged with the question of what significance should be attached to the absence of repetition of the conclusion.
The substance of the first allegation was that the IAA should have “engaged” with a government report’s silence on a particular issue. That is not correct. The IAA’s duty was to deal with the evidence it had, not what it did not have, unless the applicant submitted to it that there was some significance in the report’s silence on the issue. The applicant did not suggest that he had made such a submission to the IAA.
Moreover, it is not apparent that there was any reason why the IAA should have questioned or doubted the information referred to in the report of the Finnish Immigration Service. The 2015 DFAT report did not cast doubt on its 2013 statements cited by the Finnish Immigration Service.
Second allegation
The applicant’s written submission addressed the second allegation in the following way:
… it is apparent that the findings of the Authority were necessarily tentative. It referred to matters which were only seemingly the case. It relied upon omissions as well as positive statements. It relied upon matters which were not necessarily conclusive of the question. Overall, this was a situation where the Authority was required to apply the “what if I am wrong” test in accordance with Rajalingam.
In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 it was said by Sackville J at 240-241, North J agreeing at 253 [129]:
62… When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. …
63Although the “What if I am wrong?” terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a ”well-founded fear of being persecuted” for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.
…
67In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. … Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
In addresses the applicant referred to the second sentence of para.11 of the IAA’s reasons:
It referred to matters which were only seemingly the case.
He argued that that sentence reflected a tentativeness which meant, when regard was also had to the “equivocal” nature of the 2013 festival of hairdressers and beauty centre employees and to the IAA’s observation that:
The other country information before me, particularly the reports from the UK home office, are largely silent on this issue …
that the IAA should have asked itself whether it was wrong to conclude that he did not face a risk of harm because he had been a barber. He argued that:
To refer to what seems to be the case in one piece of country information and the silence of other country information on the issue is enough to mean that the authority hasn’t reached its state of satisfaction with the requisite certainty to mean that there’s no need to proceed to consider what happens if the authority is wrong on this specific point.
However the evidence available to it might be characterised, the IAA’s findings on the relevant issues were not tentative or hesitant. Rather, they were firm and decisive. Findings of that sort do not fall within the class of cases to which Sackville J referred in Rajalingam.
CONCLUSION
Jurisdictional error on the part of the IAA has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 30 March 2020
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