Bov15 v Minister for Immigration and Border Protection
[2018] FCA 648
•15 May 2018
FEDERAL COURT OF AUSTRALIA
BOV15 v Minister for Immigration and Border Protection [2018] FCA 648
Appeal from: BOV15 v Minister for Immigration [2017] FCCA 2724 File number: VID 1322 of 2017 Judge: THAWLEY J Date of judgment: 15 May 2018 Catchwords: MIGRATION – whether Federal Circuit Court erred in not finding jurisdictional error on the part of the Administrative Appeals Tribunal in refusing an application for a protection (Class XA) visa – whether Tribunal failed to consider a submission of substance – where applicant acquitted in trial in Australia on the basis he was a “patsy” – where applicant claimed to fear harm in Country Z from persons implicated by applicant in his trial on the basis he was a “snitch” Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Salahuddin v Minister for Immigration and Border Protection (2013) 229 FCR 290
SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365
Date of hearing: 9 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 44 Counsel for the Appellant: Mr A Aleksov Solicitor for the Appellant: Carina Ford Immigration Lawyers Counsel for the Respondents: Mr T C Smyth Solicitor for the Respondents: Australian Government Solicitor ORDERS
VID 1322 of 2017 BETWEEN: BOV15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
THAWLEY J
DATE OF ORDER:
15 MAY 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THAWLEY J:
This is an appeal from orders of the Federal Circuit Court of Australia made on 15 November 2017 dismissing an application for judicial review of a decision made on 30 June 2015 of what was then the Refugee Review Tribunal (Tribunal). The Tribunal affirmed a decision made on 12 November 2013 by the delegate of the Minister for Immigration and Border Protection (Minister) to refuse to grant to the appellant a protection (Class XA) visa.
BACKGROUND
The appellant, a citizen of another country referred to in these reasons as Country Z, stood trial in Australia charged with attempting to import a large quantity of cocaine. His defence included that he was a “patsy” for a friend or acquaintance, referred to as YT, who was engaged in criminal activity both in Australia and Country Z. The appellant was acquitted. His defence implicated YT, who fled Australia to avoid police interest, leaving his wife and children in Australia.
The appellant claimed protection on the basis of a well-founded fear of being persecuted in Country Z for reasons of his race, religion, nationality, political opinion or membership of a particular social group and that he would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Country Z.
A central aspect of the appellant’s case was that, if he returned to Country Z, YT or his associates would seek to harm the appellant as retribution for being a “snitch”. Evidence was adduced of “threats” made by YT after the appellant’s acquittal and directed to the appellant through others that he would be harmed if YT could get his hands on him. That harm was said to be less likely to occur in Australia, where YT did not operate with the freedom he was said to enjoy in Country Z. It was further contended that State protection was inadequate in Country Z.
A delegate of the Minister was not satisfied that the appellant was a person in respect of whom Australia had protection obligations and refused to grant the visa.
THE TRIBUNAL
The appellant was legally represented and assisted by an interpreter at the hearing before the Tribunal which took place over three days on 24 October 2014, 18 December 2014 and 27 March 2015. A number of written submissions were provided to the Tribunal.
The Tribunal’s reasons for decision were lengthy and thorough. The Tribunal carefully recorded the claims made by the appellant and the evidence provided by him and others. That evidence included evidence from Mr X, who was one of the people through whom “threats” were conveyed or learned about after the appellant’s acquittal. The Tribunal also carefully recorded the various submissions which had been made.
The Tribunal’s reasons included:
17.The applicant provided answers typed in English on the visa application form in response to the questions about why he was seeking protection in Australia so that he did not have to go back to [Country Z]. Those answers can be relevantly summarised as follows: …
b.He fears returning to [Country Z] because of incidents which led to his arrest and the criminal proceedings brought against him. He fears he will be located and harmed by individuals involved in the importation and distribution of drugs in [Country Z], as well as people affected by the testimony he provided to police during the course of his criminal trial.
c.The applicant provided evidence in the course of his criminal trial against [YT]. [YT] was a friend of the applicant who he met in Australia. The applicant was arrested by police when he picked up a package [YT] had asked the applicant to look after for him while [YT] was in [Country Z]. It contained approximately 15 kg of cocaine. The applicant consistently stated to police that he did not know there were drugs in the package and that he was only collecting the package and keeping it for [YT]. The applicant was found not guilty because the jury did not believe the applicant knew there were drugs in the package. The evidence given by the applicant directly implicates [YT] in the importation of a commercial amount of cocaine. The applicant fears [YT] will track down and harm him because of this.
d. The applicant also fears he will be targeted and discriminated against by members of the community affiliated with [YT] and any of his associates who are affected by the applicant’s arrest and the loss of the cocaine shipment. He is aware of three influential families with whom [YT] has connections and who are known to resort to violence and criminal acts. He also fears harm from other friends and associates of [YT].
e. He fears he will face this risk of harm because of his membership of a particular social group being “persons who have provided evidence against known figures in the illegal drug trade”.
f. The applicant was contacted by [YT] and unidentified friends of his during the criminal proceedings. The applicant’s friend and family have been contacted by several unidentified people offering to pay money for the applicant to remain silent in the criminal proceedings and making threats of harm if the applicant did not contact [YT]. [R] and his parents have been directly contacted in person and by telephone.
…
j.There are mafia groups and families involved in the drug trade in [Country Z]. Given [YT]’s involvement in the smuggling of cocaine, the applicant fears [YT] is involved with those groups in [Country Z].
k.The [Country Z] government and authorities are in practice unable to protect people who are targeted by drug groups or the [Country Z] mafia. The [Country Z] police will not seek to protect the applicant because the evidence against [YT] was provided to the Australian police and not the [Country Z] police. The [Country Z] police have no incentive to provide the applicant with any type of protective custody. [Country Z] is a small country and it would be easy for [YT] to track the applicant down. He has approached the applicant’s family and knows where the applicant lives.
…
20.On 7 October 2013, the representative provided a written submission in support of the applicant’s protection claims (D1, folios 120 – 127) …
21. Enclosed with the submission from the representative were the following: …
c.A statutory declaration made by the applicant on 7 October 2013 (DI, folios 96 – 101) which can be relevantly summarised as follows: …
xxii.The applicant is very worried about what may happen to him if he returns to [Country Z] at the hands of [YT] and his associates given the number of people [YT] contacted during the trial and the threats that have been made to the applicant’s parents and friends.
…
xxv.Organised crime families in [Country Z] are very powerful and they can take action against those who have betrayed or affected them in some way. The applicant does not know for sure if [YT] is part of any of those families but given the attempts that have been made by him and on his behalf to contact the applicant’s family and friends, he assumes that [YT] has connections of that sort. The applicant knows that the police are looking for [YT] because the AFP told him this when he was arrested and he has stated this to the court. This was also published in the media in Australia.
…
32.On 27 August 2014, the Tribunal received a written submission from the lawyer (see folios 173 – 200 of the tribunal file, referred to as T1 below). Those submissions reiterated the submissions made to the department and also made further submissions which can be relevantly summarised as follows: …
b.Further events, as set out in a further statutory declaration from the applicant referred to below, have occurred that confirm the risk of the applicant suffering harm if he returns to [Country Z], including that the applicant has been subpoenaed to testify at the trials of [N] and [L], known criminal associates of [YT] in Australia and that the applicant’s home and his parents’ home in [Country Z] have been burgled early 2014.
…
f.If the applicant were to return to [Country Z], there will now be a further incentive for [YT], [N] and [L] and their associates to ensure the applicant is not in a position to provide evidence against them in relation to any current or pending criminal trials in Australia.
…
j.The applicant has heard through third parties that someone associated with [YT] has said the applicant will be in trouble if he returns to [Country Z], that the applicant is known to be a “snitch” and that associates of [YT] are waiting for him back in [Country Z].
…
34.The statutory declaration made by the applicant on 25 August 2014, can be relevantly summarised as follows: …
c.In April 2014, the applicant was approached by an acquaintance recently returned from [Country Z]. He told the applicant he had spoken to [YT] or someone associated with him who had said that the applicant would be in trouble if he returned to [Country Z]. He has also been told by a friend that he has heard from others that [YT] is waiting for the applicant in [Country Z]. His friend said that he was contacted by a man named E from [a city in Country Z] who said that the applicant was a “snitch”. …
The Tribunal summarised the appellant’s claim at [121] in the following way:
The applicant fears harm at the hands of [YT] and his associates, associates of [N] and [L], and members of the drug trafficking community in [Country Z] because he gave evidence against [YT] at trial about the smuggling of cocaine into Australia.
One of the written submissions was dated 27 February 2015. That submission was provided to the Tribunal after the “second hearing” and before the “third hearing”. It included the following (footnotes omitted):
Indirect nature of the threats
26.We submit that regardless of the method of correspondence, the threats that the Applicant has received are still threats and justify his fears of returning to [Country Z] where there is greater potential for the threats to be carried out. The fact that the threats have been passed to the Applicant via others does not detract from the severity of the message and potential for the threats to be executed. In the state of Victoria, a threat to kill or a threat to inflict serious injury is a crime in accordance with sections 20 and 21 of the Crimes Act 1958. Both provisions do not differentiate whether the person to whom the threat was made to personally was the person at whom the threat was directed, stating that the threat made to another person can be to injure or kill “that other person or any other person”.
27.This demonstrates that for Australian legislative purposes, indirect threats to a person via another are nonetheless a threat warranting punishment. There are a number of foreseeable reasons why [YT] and others may not be contacting the Applicant directly to make their threats, including that they would still be persons of interest to the authorities and the fact that they suspect or know that the Applicant has assisted police in their investigations. That the threats were passed to the Applicant via others does not diminish the importance of the threats to the fear that the Applicant has developed nor does it detract from the very real risk that is posed to the Applicant on return to [Country Z].
28. The method of passing on the threats is consistent with the behaviour of criminals and particularly those involved in drug-related matters, as they have such wide networks to utilise in passing messages onward and doing “dirty work” for them. This is exactly how the Applicant became involved in this matter to begin with, as he was used by [YT] to accept a package on his behalf that the Applicant did not realise contained illicit materials. The criminals such as [YT] and his associates rarely suffer the consequences of their actions as they conduct their crimes, including threatening behaviour, through people they can use as scapegoats. This matter was discussed with the Member at the hearing, as [YT] is not a criminal who personally conducts his criminal work. [YT] is not the only person who the Applicant fears, he is part of a wider group of criminals who often pay strong and violent people to take care of matters or use vulnerable people to take the heat for them.
29.The threats that the Applicant has indirectly received have left him extremely afraid for his safety. The threats to the Applicant and his family and friends have been clearly purposive to date, with constant requests for information about his trial and for documents pertaining to the evidence he gave in that trial as well as warnings for the consequences that will ensue should these not be provided. [YT] and his associates clearly suspect or know that the Applicant gave evidence against them now and seek to know what he has said. Prior to the trial, [YT] and his associates were obviously attempting to prevent him from doing so, by offering him that they pay his legal fees and seeking to have a say in the evidence that the Applicant would provide. [YT] and his associates clearly feared the Applicant would incriminate them or others in Australia and their crime ring more widely and sought to prevent him from doing so. Their focus still appears to be finding out what the authorities in Australia know about their operations and part of this is obtaining the evidence that the Applicant gave. The harm that has been inflicted on the Applicant and his family to date has been consistent with this hypothesis, as both the Applicant’s and his family’s houses in Australia and [Country Z] were burgled and computers containing confidential materials were taken while the threats received have been directed to obtain information. The Applicant fears that should he return to [Country Z], [YT] and his associates will be able to force the Applicant to give them the documents that he has been able to avoid giving them to date. They will be able to force the information out of him, through violence and further threats. The Applicant also fears that should [YT] and his associates receive the documents and find out exactly what occurred during the trial, they will then have a reason to harm him.
30.Threats to life or liberty constitute ‘serious harm’ for the purposes of determining whether there is a well-founded fear of persecution evident in a protection visa claim, as defined in the Protection Visa Procedures Advice Manual (“PVPAM”) at 51.5. In Australia, the Applicant has already been receiving actual threats to his life and liberty. Should he return to [Country Z], he fears that these threats will materialise and he will continue to face actual threats and the constant threat of serious harm to himself from the minute he arrives in [Country Z]. On this construction, the variety of threats that the Applicant (through his sister and other contacts) has received from [YT] and his associates constitutes serious harm and together with other factors established in previous submissions demonstrates that he has a well-founded fear of persecution.
The Tribunal summarised the submission and the attachments to it in its reasons beginning at paragraph [92]. This included:
c. A timeline of events provided with the submission (T2, folios 448 – 434 [sic 448 – 454]) show the applicant has received threats on a regular basis through friends and acquaintances, which indicates that [YT] and “his cartel” are extremely concerned about the extent of the knowledge authorities in Australia have about them and their operation.
d. Although the threats have been received indirectly through third parties, they remain evidence of the real chance of harmed the applicant faces in [Country Z]. The method of passing on threats through third parties is consistent with the behaviour of criminals, particular those involved in drug related matters.
The document referred to in paragraph [92c] was a chronology which identified a number of events, including what the appellant described as six “threats” which had been made against the appellant by YT since the appellant’s acquittal. Each of these threats was communicated to, or learned about by, the appellant via an intermediary:
(1)The first one occurred a few months after the not guilty verdict on 25 February 2013 and involved Mr X contacting the appellant “to pass on [a] threat from YT”.
(2)The second (in 2013) involved a person contacting the appellant’s sister to state that the appellant should not go back to Country Z “because YT cannot come back to Australia so that way they will be ‘even’”.
(3)The third (around March or April 2014) involved a person telling the appellant he had been speaking to YT or one of his associates and that “YT/associate told him that [the appellant] would have trouble if he went back to [Country Z]”.
(4)The fourth (in mid-2014) included that “E told N … that [the appellant] was a snitch in court and YT and others would be waiting for [the appellant] when he came back to [Country Z]”. N is said to have received the threat from E in Country Z to pass on to the appellant. The appellant’s friend U is said to have received the message from N.
(5)The fifth (in October or November 2014) was that Mr X received threats from YT and passed them on to the appellant. The threats were described in the following way: “Asking [the appellant] for documents, advised that if he wasn’t going to provide them and they find out he gave evidence against them, [the appellant] should distance himself because he is in grave danger”.
(6)The sixth (in January 2015) involved Mr X receiving threats from YT and passing them on to the appellant. The threats were described as follows: “Telling [Mr X] to tell [the appellant] that he would have to give them the documents when he returns to [Country Z] whether he wants to or not, then that they will sit around the table and [the appellant] will pay for what he has done”.
The Tribunal stated that it accepted that the events (including the six “threats”) described in the chronology occurred – see: reasons at [122]. However, the Tribunal also found at [126] that the appellant had exaggerated what he heard about YT’s attitude towards him and that it did not regard what the appellant had heard through third parties to be threats made to the appellant, either directly or indirectly. The Tribunal stated at [126]:
I also find that the applicant and his witnesses have exaggerated what they have heard about [YT]’s attitude towards the app1icant since he was found not guilty in 2013. I characterise what the applicant claims to have heard through third parties to be rumours and suppositions. I do not regard them to be threats made to the applicant, either directly or indirectly. In particular, I found the evidence provided by Mr X about his contact with associates of [YT] and his contact with the applicant to be vague and generalised. Even taking into account that Mr X may have his own reasons for not wanting to disclose how much he knows about [YT] or about the smuggling of drugs into Australia, I find that I can give little weight to the evidence provided by Mr X about the interest of [YT] or his associates in the applicant. I had similar concerns about the evidence of other witnesses, including [R] and [G], and similarly give it little weight.
The appellant in his statutory declaration sworn 27 February 2015, which was provided to the Tribunal with the written submission dated 27 February 2015, stated that since the criminal case “the threats have almost all come through [Mr X]”. Mr X had also provided a statutory declaration and he had provided oral evidence at the third day of hearing.
Paragraph [92d] indicates that the Tribunal was aware of and took into account the written submission dated 27 February 2015. More specifically, the paragraph indicates that the Tribunal understood the core of the case made in paragraphs [26] to [30] of the written submission that threats might be made and carried out “indirectly” and that this was consistent with what might be expected in the circumstances.
At [88] of its reasons, the Tribunal stated:
The applicant stated that [YT] and his associates have more power in [Country Z] than they do here in Australia. I asked the applicant why, according to him, [YT] and his associates never threatened him directly. He stated that it may have been because they suspected he was [an] informant and so only threatened him indirectly to ensure they would not be caught making threats to him.
The reference to YT never threatening him directly must be understood as a reference to YT not directly threatening the appellant after the acquittal for reasons expanded upon below; in short, the appellant had given evidence of a threat made directly by YT before the acquittal.
The Tribunal stated at [127] to [129]:
127.As I have accepted that [YT] was responsible for the smuggling of drugs into Australia and that the applicant has given evidence against [YT] at trial, and have accepted that [YT] attempted to contact the applicant in order to arrange for the applicant to not give that evidence, I accept that [YT] regards the applicant as someone who has taken action against him and being willing to provide information to the authorities about him.
128.However, I note that neither the applicant nor his witnesses have been able to identify any time when [YT], or his associates, have been responsible for anyone being harmed in the past. I find that if [YT] or his associates were criminals willing to engage in acts of violence the applicant or his witnesses would have some knowledge of this occurring. The country information the applicant has provided of the targetting [sic] of witnesses and informants in [Country Z] do not refer to [YT] or his family. I find what the applicant and his witnesses said about [YT] and his connections with other [Country Z] criminal families to be vague and generalised. I find the applicant’s claims that [YT] may have been connected with individuals who have harmed others in the past to be highly speculative.
129. As a result, I am not satisfied that [YT] or his associates are criminals who have been willing to engage in acts of violence, or had organised for others to engage in acts of violence on their behalf. I find this also to be the case for [N] and [L]. The applicant has referred to comments made by [N] (see [56]) about having connections with a particular [Country Z] crime figure. Again, I consider this comment to be far more likely to have been an idle boast and give it little weight in assessing whether [N] or [L] are criminals who have been willing to engage in acts of violence, or have organised for others to engage in acts of violence on their behalf.
The Tribunal was not satisfied that the appellant would face a real chance of suffering serious harm capable of amounting to persecution and was not satisfied the appellant had a well-founded fear of persecution: at [138] and [139]. It stated it was therefore unnecessary for it to consider whether there was effective state protection or safe relocation available.
FEDERAL CIRCUIT COURT
The application for judicial review made to the Federal Circuit Court relied on one ground:
The Tribunal failed to consider a submission of substance, being that it was improbable that there would be direct communication between the Applicant and “VT” [YT].
The argument centred on one line (emphasised below) in paragraph [135] of the Tribunal’s reasons, which was as follows:
In any event, I have not accepted that [YT], [N] or [L] are prominent or powerful figures in the [Country Z] crime community, or that they have connections with any such figures. I have accepted that [YT] contacted the applicant, his sister and his parents around the time of the trial against the applicant, seeking to arrange for the applicant to avoid giving evidence against [YT]. I have accepted that the applicant refused to do so. However, I have also found that [YT] has not harmed or been responsible for harming any individuals with whom he has dealt … in the course of his activities, criminal or otherwise, in the past. He has also not taken any steps to directly communicate with the applicant or his family in the two years since the applicant was acquitted. Even taking into account that it would be easier for [YT] or his associates to make contact with the applicant in [Country Z] rather than in Australia, I give significant weight to the lack of any attempt to directly contact the applicant by [YT] or his associates during this time. I find that if [YT] held the applicant responsible for [YT]’s separation from his wife and children when they are in Australia, there would have been some greater attempt to contact the applicant or take action against by or on behalf of [YT] than there has been. As a result, I am not satisfied that the applicant is now of any real interest to [YT], or that he will be in the reasonably foreseeable future, and am not satisfied that there is a real chance the applicant will be targeted for harm by [YT] if he returns to [Country Z].
In the Federal Circuit Court (and in this Court), the appellant relied on the decision of Griffiths J in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365 at [75] to [82] (SZSSC) to the effect that, in certain circumstances, a failure by a Tribunal to evaluate a submission of substance which was clearly articulated might amount to jurisdictional error. That conclusion would be appropriate, for example, if the failure amounted to a constructive failure to exercise jurisdiction. The critical questions, before determining whether any such failure amounts to a jurisdictional error, are to identify: (a) whether a submission of substance was clearly articulated; and (b) whether there was a failure by the Tribunal to evaluate that submission.
The Federal Circuit Court referred to paragraphs [88], [92d] and [121] of the Tribunal’s reasons and recorded at [22] of its reasons that the “Tribunal undoubtedly noted and understood the applicant’s claim to include indirect threats of harm”. That conclusion was clearly correct as the appellant properly conceded.
The Federal Circuit Court stated that the appellant’s focus on one particular sentence in paragraph [135] might offend the principles in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) that the reasons for decision should not be construed minutely and finely with an eye keenly attuned to error. The court noted at [24] that a “full and contextual reading” of paragraph [135] showed the following (emphasis in original):
i) However, I have also found that YT has not harmed or been responsible for harming…; (my emphasis)
ii) Even taking into account that it would be easier for YT or his associates to make contact with the applicant in [Country Z] rather than in Australia…; (my emphasis)
iii) … I give significant weight to the lack of any attempt to directly contact the applicant by YT or his associates ... (my emphasis);
iv) … there would be some greater attempt to contact the applicant or take action against by or on behalf of YT than there has been. (my emphasis)
The court concluded at [25]-[26]:
25.The above references clearly, in my view, demonstrate an understanding of and engagement with the applicant’s discrete submission of “indirect threats of harm” with references to the ultimate “responsibility” of YT and the use of intermediaries. This is an intelligible and contextual reference to the applicant’s submission.
26. It follows that the Tribunal has discharged its obligation to consider and evaluate the applicant’s claim and has not fallen into jurisdictional error. The application for review must therefore fail and be dismissed with a consequent order for costs.
THE APPEAL
The appellant has one ground of appeal in this Court:
The Federal Circuit Court erred in not accepting the appellant’s argument that the decision of the Tribunal is affected by jurisdictional error because the Tribunal failed to consider a submission of substance made by the appellant, to the effect that it was unlikely that the appellant would have been the subject to direct threats and had in fact received indirect threats.
The Federal Circuit Court may be taken to have erred if it should have concluded that the Tribunal failed to consider a submission of substance which was clearly articulated, and that the failure was sufficient for a conclusion that the decision was affected by jurisdictional error. As Griffiths J noted in SZSSC, two of the important questions which arise are: (a) whether a submission of substance was clearly articulated; and (b) whether there was a failure by the Tribunal to evaluate that submission.
As to the meaning of “evaluation” in this context, assuming the submission is one of substance, the evaluation of it should be a real evaluation. The decision-maker must engage in an active intellectual process directed at the submission of substance. The requirement to engage in an active intellectual process does not necessarily require the decision-maker to refer in the reasons to every contention made; nevertheless, in appropriate circumstances a failure to refer to a particular contention might give rise to an inference that it was not considered. The contention might be subsumed in other conclusions or diminish in its apparent significance in light of the reasoning process adopted or particular findings of fact made. A conclusion that a decision-maker has not engaged in an active intellectual process in respect of a submission of substance will not lightly be made, the judicial review applicant bearing the onus of proof. That is particularly so where the Tribunal has in fact referred to the submission.
The submission of substance the appellant says was not evaluated is set out in ground one of the appeal: “it was unlikely that the appellant would have been the subject to [sic] direct threats and had in fact received indirect threats”.
In written submissions, it was said that the submission of substance was that “indirect threats were the expected mode of communication by a person such as YT, given that he would likely utilise others to do his ‘dirty work’ so as to immunise himself from the consequences of being caught in doing that dirty work” and that it was “improbable that there would be any direct communication or direct threats in the circumstances”.
At the hearing of the appeal, Counsel for the appellant said that the submission which was not evaluated was the submission found in paragraphs [27] and [28] of the written submission dated 27 February 2015. Counsel submitted that the underlying point of [27] and [28] or the submission of substance which they conveyed was that one would expect:
(1)YT to make threats through others because he was a person of interest to the authorities (or one would expect YT not to make threats directly); and
(2)criminals engaged in drug-related crime (including YT and others) to make threats through the agency of others (that is, indirectly) rather than carrying out their own “dirty work” (irrespective of whether they were of interest to the authorities).
There are two aspects of the ground of appeal as formulated and as explained by the written and oral submissions which should be noted. First, the submissions found in paragraphs [27] and [28] were not made in a vacuum. They must be read with the evidence and claims made. The appellant’s claims before the Tribunal included claims of direct and indirect threats – see, for example [17(f)] of the Tribunal reasons which accurately summarises answers provided in the visa application form and asserted that YT had threatened him directly by telephone during the criminal proceedings. The Tribunal’s reasons at [49] to [52] state:
49.I asked the applicant if he had ever been threatened by [YT] and his associates. He confirmed he had. I asked the applicant when [YT] had threatened him. He stated that it was the time he was handed a telephone and spoke with [YT]. He explained he was in a restaurant and that it was a short while after he was released on bail in mid-2011. He confirmed again that [YT] spoke about the media article reporting the charging of the applicant. I noted that the article provided by the applicant indicated it was published in August 2011. I asked the applicant if this meant the time he spoke with [YT] was after August 2011. The applicant stated that it must have been and that it was definitely after he was released on bail.
50. I asked the applicant how he came to be in a restaurant speaking to [YT] on the telephone. The applicant explained that he knew the husband of [YT]’s wife’s sister. He stated that he knew this man did not have a good relationship with [YT]. He stated that this man contacted the applicant and asked him to come to meeting at the restaurant he owned. The applicant stated he thought they would probably be talking about the criminal proceedings against the applicant but he had not expected to be asked to speak to [YT] himself. I asked the applicant what [YT] said to him on the telephone. He replied that [YT] asked him why he, the applicant, had not taken responsibility for the package. He stated [YT] offered to pay applicant’s legal expenses. I asked the applicant why [YT] wanted him to take responsibility for the package. The applicant replied that [YT] lived in Australia but because of the evidence the applicant had given to the police [YT] could not return here.
51.I asked the applicant why [YT] would think the applicant would do anything other than tell the police the truth: that the applicant had been told by [YT] to collect the package. The applicant replied that [YT] had given him jobs in the past and had left Australia because he wanted to distance himself from the delivery of the package. I asked the applicant what [YT] wanted him to say to the police. He repeated that [YT] wanted him to take responsibility for the package and offered to pay the applicant’s legal expenses and for the time he would be in jail. He stated that [YT] told them this during the telephone conversation they had after was released on bail. He stated that an associate of [YT] contacted a friend of the applicant’s in [Country Z] and gave him a large amount of money. The associate asked the applicant’s friend to deliver the money to the applicant’s parents in exchange for the applicant to changing his story. I asked the applicant when this happened. He replied that it happened when he was on remand but that he spoke with his father and they decided they would not take the money but remain independent. The applicant stated that [YT] and his associates had tried to get the information that the applicant had given to the police in Australia and before the court but that he had refused to give this information to them and they had failed to obtain it until now.
52.I asked the applicant what he said to [YT] when he spoke to him on the telephone in late 2011. He replied that he told [YT] he was not willing to sit in jail for such a long time. I asked the applicant how [YT] responded. He replied that [YT] repeated that he could pay the applicant money. I asked the applicant if [YT] threatened him. He confirmed that he did. I asked the applicant what [YT] said. The applicant replied that he said words to the effect of “you will regret it, one day we will meet each other”. I asked the applicant if that was the only time he or his family spoke with [YT] after the applicant was arrested in Australia. The applicant confirmed this.
The appellant’s case was that he had been threatened directly by YT after he was released on bail and before he was acquitted. None of the “threats” after his acquittal were directly made by YT. Each of these involved an intermediary. It was in this context that the appellant made his submission concerning “indirect threats”. His case was not that direct threats were never made.
Secondly, paragraphs [27] and [28] of the written submission of 27 February 2015, being what the appellant relies on as the relevant submission of substance, does not in terms ask for an evaluation of whether, or a finding that, indirect threats were more probable than direct threats. Rather, the point of substance in the submission was that the Tribunal should give weight to the evidence concerning indirect threats, because – for a number of reasons – one might expect YT to make or carry out threats through the agency of others rather than directly. The Tribunal referred to the substance of that submission at [92(d)]. It cannot be criticised for not setting out paragraphs [27] and [28] in full. Its summary of the submission was entirely appropriate. The Tribunal clearly understood the submission. The Tribunal was evidently aware of the six indirect “threats” relied upon by the appellant and referred to them and evaluated them, after hearing the evidence of Mr X at the third hearing: at [92(c)], [122], [126], [135].
The particular submissions in paragraphs [27] and [28] of the written submissions of 27 February 2017 must be read with the appellant’s evidence of a direct threat made by YT to the appellant in late 2011 and of his claims of fear of harm at the hands of [YT] and his associates if he returns to Country Z – see, for example: [21(c)(xxii)]. Paragraphs [27] and [28] of the written submission did not state that it should be expected that there would be no direct threats, and such a submission would have been inconsistent with the appellant’s evidence. Nor did those paragraphs state that it should be expected that there would be no direct threats after the acquittal, as opposed to before.
The reasons of the Tribunal are to be read in a common-sense manner and are not to be construed minutely with an eye keenly attuned to the perception of error: Wu Shan Liang at 271-2. Nevertheless, these general words of caution do not relieve a reviewing court of carefully scrutinizing the reasons of an administrative decision-maker: Salahuddin v Minister for Immigration and Border Protection (2013) 229 FCR 290 at [20], per Flick J (with whom Katzmann and Wigney JJ relevantly agreed).
When scrutinising reasons in order to draw an inference as to whether a decision-maker has failed to consider a matter, it is relevant to look to whether and how the matter was referred to by the decision-maker. French, Sackville and Hely JJ in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 said at [46]-[47]:
46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Paragraph [135] included these two sentences:
He [YT] has also not taken any steps to directly communicate with the applicant or his family in the two years since the applicant was acquitted. Even taking into account that it would be easier for [YT] or his associates to make contact with the applicant in [Country Z] rather than in Australia, I give significant weight to the lack of any attempt to directly contact the applicant by [YT] or his associates during this time.
The reference to “during this time” in the second sentence extracted above is a reference to the two year period after the appellant was acquitted. I infer this from the first sentence. In that two year period, there had been no direct threats and there had been what the appellant referred to as six indirect “threats”, that is, threats from YT which were communicated through others or which the appellant was told about by others. The Tribunal accepted those events occurred: at [122]. The Tribunal’s reference in [135] to “the lack of any attempt to directly contact the applicant by [YT] or his associates during this time” must be read with the Tribunal’s conclusion at [126] where it said:
I also find that the applicant and his witnesses have exaggerated what they have heard about [YT]’s attitude towards the applicant since he was found not guilty in 2013. I characterise what the applicant claims to have heard through third parties to be rumours and suppositions. I do not regard them to be threats made to the applicant, either directly or indirectly. …
Further, it is necessary to read the two sentences referred to at [37] above with the remaining sentences in [135] and, of course, with the reasons as a whole. The Tribunal took the view that the evidence concerning the indirect threats (threats made by YT through intermediaries) was not such as to cause the Tribunal to conclude that the appellant was of any real interest to YT or that he would be in the reasonably foreseeable future. Paragraph [135] also indicates that the Tribunal found that – if YT held the appellant responsible for his forced separation from his wife and children – there would have been some greater attempt “by or on behalf of [YT]” to contact the appellant (or take action against him). That is, the Tribunal concluded that, if the appellant were of any real interest to YT, there would have been a greater level of direct or indirect contact. The Tribunal gave weight to the fact that there had not been direct contact by YT in the two years since acquittal. It was entitled to give that matter weight.
In my view, it is tolerably clear that the Tribunal evaluated the submission that one might expect the threats to be made indirectly. It referred to the substance of that submission at [92(d)] and [88]. It was not asked to, and there was no requirement that it, state positively a conclusion on the respective probabilities of the threats being made indirectly rather than directly. In substance, it was asked to give weight to the evidence of indirect threats because, it was submitted, one might expect threats to be conveyed indirectly, rather than directly, in circumstances such as these. The Tribunal considered the indirect threats in detail. However, it did not consider the indirect threats to be sufficient for it to reach a conclusion that there was a real chance of suffering serious harm capable of amounting to persecution and was not satisfied that the appellant had a well-founded fear of persecution: [126], [135] – [138]. The appellant has not shown that the submissions in paragraphs [27] and [28] were not evaluated or that there was a submission of substance which was not evaluated. In particular, the appellant has not shown that a submission of substance in the terms identified in ground one of the appeal was not evaluated.
The appellant submitted at [14] of his written submissions:
The FCC judge was wrong to think that the peripheral notations in paragraph 135 of the Reasons demonstrate the required consideration of this argument [that “it was improbable that there would be any direct communication or direct threats in the circumstances”]. These references are no more than reference to the factual matters that underpin the argument – the argument itself being a discrete concept to the facts which underpin (although overlapping and related). It is the Tribunal’s failure to deal with the argument about which the applicant complains, and not any failure to be fully aware of the facts.
It can be accepted that facts and arguments based on those facts are discrete concepts. Here, the Tribunal carefully dealt with the facts. It also referred to the substance of the submissions made, including those in paragraphs [27] and [28] of the written submissions, and is not shown not to have evaluated those submissions.
The appeal is dismissed with costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley. Associate:
Dated: 15 May 2018
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