FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVT20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1075 |
| Catchwords: MIGRATION – Applicant imprisoned for criminal offences – notice of intention to cancel visa sent to applicant after he was released from prison - application for protection visa made after receipt of notice – applicant claimed to be a witness to a murder in country of origin in 2002 – threat made to applicant at the time of the murder that he was to leave the country and that he would be killed if he returned to his home country – whether there was a real chance that the applicant would suffer serious harm if he returned to his home country – psychological harm suffered by applicant as a result of threat made in 2002 – whether the act of making a threat in 2002 could be a relevant act for the purpose of the Tribunal determining whether there was a real risk that the applicant would suffer significant harm if he returned to his home country – whether any pain or suffering must have been suffered as a result of an intentional act or omission – whether Tribunal properly carried out its statutory task – whether Tribunal made legal errors which were material – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 5J, 36(2)(a), 36(2)(aa), 36(2A), 91X, 501. |
| Applicant: | BVT20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 3347 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 30 April 2020 |
| Date of Last Submission: | 30 April 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 7 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Albert |
| Solicitors for the Applicant: | Clothier Anderson |
| Counsel for the Respondents: | Ms Symons |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Further Amended Application for review filed on 22 April 2020 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
MLG 3347 of 2019
| BVT20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Fiji aged thirty-three (33) years. He first arrived in Australia in 2000 as the holder of a Subclass 101 (Child) visa at the age of fourteen (14). He subsequently returned to live in Fiji with his father for about a one (1) year period – the applicant’s mother and other siblings remained in Australia. The applicant returned to live in Australia in about 2003 and he has resided here since that time.
Between August 2006 and December 2013, the applicant was convicted of a series of criminal offences involving dishonesty, assault, robbery and the hindering of police investigations. After two (2) suspended sentences had been handed down, the applicant was sentenced to two (2) years imprisonment in 2013. He was released on parole in May 2014.
The applicant was sent a notice of intention to cancel his visa, after which the applicant’s Subclass 101 visa was cancelled pursuant to the provisions of s. 501 of Migration Act 1958 (Cth) (‘the Act’) on 12 August 2015.
On 8 September 2015, the applicant made application for a protection visa.
A delegate of the Minister refused to grant the visa on 19 October 2015.
The applicant made application for review of the decision of the delegate by the Administrative Appeals Tribunal (‘the Tribunal’).
For various reasons going to jurisdictional error, decisions of the Tribunal relating to the applicant’s protection visa application were twice set aside.
The hearing conducted by the most recent differently constituted Tribunal occurred because Her Honour Judge Riley had, on 12 October 2018, set aside the decision of the Tribunal made on 12 July 2016.
The most recent Tribunal refused to grant the visa on 6 September 2019.
On 3 October 2019, the applicant filed an Originating Application for review of the decision of the Tribunal. At the hearing before the Court, the Court granted leave, without objection, to the applicant to rely upon a draft Further Amended Application for review, being annexure SV-4 to the affidavit of Sanmati Verma filed on 22 April 2020. The grounds for review were relevantly as follows:
“Grounds of application
1. The Tribunal erred by:
a. failing to apply a judgment of this Court, which was binding upon it; or
b. failing to apply the criteria set out in s 36(2) of the Migration Act 1958 (Cth), namely by erroneously concluding that ‘the future consequence of an act in the past’ is insufficient to make out a protection claim under s 36(2).
Particulars
The Tribunal considered that a future act or omission was required for a protection claim to be made out, including at [80], [99], [107]-[112].
This was contrary to the very judgment of this Court which gave rise to the matter being remitted to the Tribunal for reconsideration according to law, namely CKX16 v Minister for Immigration and Anor (No. 2) [2018] FCCA 2894 at [32] as the Tribunal expressly acknowledged at [97]-[98], [108], [110] of its reasons. The Tribunal, which was bound by that judgment of this Court, expressly refused to apply it.
The Tribunal purported to find a conflict between that judgment and SZRSN v Minister [2013] FCA 751, but also (correctly) highlighted that that latter judgment did not deal with the critical issue (at [107]).
2. The Tribunal erred by misapplying the decision in SZRSN v Minister [2013] FCA 751 (read in light of GLD18 v Minister for Home Affairs [2020] FCAFC 2, especially at [38]-[42], [64]) to the evaluation of the Applicant’s claims.
Particulars
The Applicant’s claims did not concern the repercussions of mere removal from Australia, but rather concerned the risk of mental harm to him after arrival in Fiji by reason of the past act there of having his life threatened by a military official who the Applicant witnessed murdering another man.
The Tribunal accepted that that threat was ‘open-ended’ and ‘continuing’ (at [94]).
Notwithstanding that, the Tribunal read SZRSN broadly at [107] in the way the Full Court of the Federal Court concluded was wrong at [64] of GLD18.
The Tribunal purported to find a conflict between CKX16 and SZRSN v Minister [2013] FCA 751, but also (correctly) highlighted that that latter judgment did not deal with the critical issue (at [107]).
3. The Tribunal erred by applying the decision in SZRSN v Minister [2013] FCA 751 (read in light of GLD18 v Minister for Home Affairs [2020] FCAFC 2) when that decision was and is plainly wrong.
4. The Tribunal erred by failing to apply the statutory test for refugee protection, namely by assuming irrational behaviour by the murdering military official (at [73] of its reasons) in its assessment of the future risk of physical harm to the Applicant.
Particulars
The Tribunal was required to make a reasoned prediction of the future risk of harm to this Applicant in light of the known motivations and objectives of the would-be perpetrator.
The Tribunal relied on the ‘assailants [having not made] any threats or enquiries of the applicant’s father or family in Fiji around the time of the alleged incident or at any time thereafter’ to conclude that the Applicant was not at risk of relevant harm.
The Tribunal had regard, adversely to the Applicant, to whether the perpetrator had:
a. Investigated who was in the Applicant’s family;
b. Sought out their address; and
c. Attended at that address to ask after the Applicant, thereby identifying himself and probably prompting a conversation with the Applicant in which he might reveal why the perpetrator would be otherwise randomly turning up at a family member’s house to ask after him.
This would be not only an irrational series of steps for a person who had got away with murder to take, it would be potentially self-destructive.
The Tribunal’s engaged in its predictive task by speculating about non-self-preserving, or irrational, conduct by the perpetrator to make a prediction about the future risk to the Applicant by the same perpetrator.
Contra CKX16 v Minister for Immigration and Anor (No. 2) [2018] FCCA 2894 at [105].
5. The Tribunal’s decision was infected by jurisdictional error by reason of, or by failing to consider, the breach by the Federal Court of Australia since September 2017 of s 91X of the Migration Act 1958 (Cth) in respect of the Applicant.”
Under the heading “RELEVANT LAW AND ISSUES FOR DETERMINATION”, the Tribunal, at [8] – [24] of its reasons, comprehensively set out the relevant considerations to be taken into account by it for the purpose of determining whether protection obligations were owed to a person pursuant to the provisions of s. 36(2)(a) and s. 36(2)(aa) of the Act. Those principles were as follows:
“[8] The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the ‘Regulations’). The relevant statutory provisions have been extracted in the attachment.
[9] An applicant for the visa must meet one of the alternative criteria in ss.36(2)(a), (aa), (b), or(c) of the Act. That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
[10] Subsection 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
[11] A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b) of the Act.
[12] Under s.5J(1), a person has a ‘well-founded fear of persecution’ if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and the circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)- (6) and ss.5K-LA of the Act, which are extracted in the attachment to this decision.
[13] If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a) of the Act. Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b) and (c) of the Act. Subsection 5J(5) provides that instances of ‘serious harm’ include a threat to the person’s life or liberty, significant physical harassment or ill-treatment of the person and significant economic hardship that threatens the person’s capacity to subsist.
[14] Where a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of that group tis to be determined in accordance with s.5L of the Act. Section 5L provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.
[15] A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2) of the Act. Subsection 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
[16] A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2) of the Act.
[17] If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia 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 being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) of the Act (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
[18] ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
[19] There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
[20] Subsection 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
[21] ‘Cruel or inhuman treatment or punishment’ for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is inflicted on a person, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The pain or suffering must be intentionally inflicted.
[22] The final type of significant harm listed in s.36(2A) is degrading treatment or punishment: s.36(2A)(e) of the Act. Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
[23] According to the High Court in SZTAL v Minister for Immigration and Border Protection[2017] HCA 34 the meaning of intentionally inflicted and intentionally causing in the context of s.5(1) of the Act requires an actual, subjective intention on the part of a person to bring about the suffering by their conduct.
[24] Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.”
Under the heading “MANDATORY CONSIDERATIONS”, the Tribunal, at [25] – [26], said as follows:
“[25] In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – Procedural Advice Manual 3 (‘PAM3’) ‘Refugee and Humanitarian – Complementary Protection Guidelines’ and Procedural Advice Manual 3 (‘PAM3’) ‘Refugee and Humanitarian– Refugee Law Guidelines’ – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[26]The most recent report from DFAT is the Country Information Report for Fiji dated 27 September 2017. We have considered this report and other country information referred to by the applicant’s representatives. We have also considered the Department guidelines, such as the Complementary Protection Guidelines which contain the Department’s interpretation of the Act and provide examples of the circumstances which may or may not fall within the criteria set out in ss.36(2)(a) and (aa). . To the extent that the Guidelines were relevant to the consideration of the decision under review, they were of limited assistance in the circumstances. Our analysis of this information and any relevant Guidelines is set out later in these reasons.”
Issues for Determination
At [29] of its reasons, the Tribunal, having received submissions and having heard evidence from the applicant, identified the relevant matters for its consideration and determination as follows:
“[29] …
(1) Does the Tribunal accept the applicant’s claims about the events that are alleged to have taken place in 2002?
(2) If so, does the applicant meet the ‘refugee criterion’ in s.36(2)(a) of the Act? In particular, does he have a well-founded fear of persecution and is this for reasons of him being a member of a particular social group or his actual or imputed political opinion?
(3) If the applicant does not meet the refugee criterion, are there substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Fiji there is a real risk the applicant will suffer significant harm? In particular, is there a real risk he will be killed or harmed by his former assailants or parties associated with them and, if not, is there a real risk he will suffer serious psychological harm and would this harm amount to ‘significant harm’ within the meaning of s.36(2A) of the Act?”
The Tribunal did not err in so identifying the issues which were required to be determined by it.
The Tribunal’s Consideration of Relevant Matters
Does the Tribunal Accept the Applicant’s Claims about the Events of 2002
At [32] and [33] of its reasons, the Tribunal recorded the applicant’s claims as follows:
“[32] According to the applicant, he was making his way home from school along a bush track near his father’s house and came upon three persons attacking a fourth individual who was on the ground. One of the attackers was an older man in military uniform. He was the main protagonist. He was accompanied by two others who were soldiers. The fourth man was being restrained on the ground by the two soldiers. The applicant said that he was forced to the ground by one of the soldiers. The fourth man’s throat was cut by a machete and the applicant witnessed this. After the murder of the man, the main protagonist, who was armed with a machete, threatened him. The applicant took him to be a senior person because the other soldiers appeared to defer to him. His wallet and identity card was taken from his school bag. They read the card and did not return the card or the wallet. The main protagonist said words to the effect “go, don’t say anything and don’t ever come back”. After this the assailants let him go and the applicant walked back to his father’s house. He did not run because he was scared they may chase him. He was in shock and did not tell his father what had happened to him. He was afraid to discuss the event with his father because of the threat and made arrangements with his parents for him to return to Australia as soon as possible.
[33] The applicant gave evidence that he did not discuss the incident with anyone in his family because he was fearful of what might happen if this information became known. He was concerned for his father and for himself. He was also concerned about what may happen to his family if they returned to Fiji, which they did on a regular basis. The applicant said he did not speak about the incident and found it difficult to settle down when he returned to Australia. He could not forget the incident. The applicant says he did not settle into school and left. The applicant stated that he “felt lost in life” and fell into the wrong crowd of people. He began to drink and take drugs to help him deal with the issues. The applicant says he did not tell his family about his problems. He started to get into trouble with the police and was convicted of offences in 2006, 2009 and 2014.”
The applicant’s mother and siblings had been living in Australia at the time of the events referred to in [32] and [33] above. At [41] of its reasons, the Tribunal, having accepted that the applicant’s history of events was accurate, also accepted the evidence of the applicant’s mother that when the applicant returned to Australia in 2002 he was “a totally different person”. The Tribunal noted that all of the applicant’s family had stated that they were unaware of the applicant’s claims about having witnessed the murder until they heard the applicant’s evidence given about it at the second Tribunal hearing.
At [42] of its reasons, it was noted that a clinical psychologist named Cook had considered that the applicant suffered from a post-traumatic stress disorder of moderate severity, and that such condition was likely related to the applicant’s experience of having witnessed the murder in Fiji. The Tribunal considered that even though the report was of limited weight (based as it was on only one interview with the applicant), it was “broadly consistent with the claim that the applicant experienced a traumatic event during his early life.”
At [43] of its reasons, the Tribunal found that the applicant’s silence about the murder for an extended period was consistent with a long-held fear of harm being suffered by him should he return to Fiji.
At [46] of its reasons, the Tribunal accepted the explanation of the applicant as to why he had not, until the second Tribunal hearing, said that he feared being killed if he returned to Fiji. The Tribunal was insightful, and clearly intellectually engaged, when coming to that conclusion, as follows:
“[46] The applicant’s evidence at the first Tribunal hearing is consistent with the evidence he gave to this Tribunal about his subjective fear of harm. This is not a case where the applicant has only just raised concerns. He has been consistent about the nature of his fear since he lodged his application for protection. While the applicant did not provide evidence to particularise the basis for those fears until the second hearing, he has given a reason for his silence. For the reasons previously outlined, that explanation is plausible. The applicant’s evidence at the hearing before this Tribunal was consistent with his evidence at the previous Tribunal hearing and was sufficiently detailed to provide a credible account of the incident.”
Having considered all of the evidence before it, the Tribunal generally accepted the applicant’s claims, and at [49] it said:
“[49] In summary, while we have some doubts about the truth of the applicant’s claims, the surrounding evidence is generally supportive of the applicant experiencing some traumatic event prior to his return to Australia. His evidence was consistent and is broadly plausible with country information about the political instability and violence involving the military at around that time. Accordingly, we accept the applicant’s claim that he witnessed a Fijian military man kill an individual near his father’s house in late 2002, that the assailants took his identification card, the main protagonist made threats to him and that since that time he has been fearful of returning to Fiji. We also accept that the applicant did not previously provide evidence about the incident because he was concerned about disclosing it to others and he was traumatised by the incident.”
The Tribunal clearly found that it accepted the applicant’s claims about the events of 2002.
Does the Applicant meet the Refugee Criterion in s. 36(2)(a)?
Section 36(2)(a) of the Act provided that a criterion for the grant of a protection visa was that Australia had protection obligations owed to a non-citizen because they were a refugee.
Section 5H of the Act defines refugee as follows:
“Section 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.
Note: For the meaning of well-founded fear of persecution, see section 5J.
(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non-political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.”
Whether or not a person had a well-founded fear of persecution was to be determined by reference to the provisions of s. 5J of the Act. Section 5J of the Act provided as follows:
“Section 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-foundedfear 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 receivingcountry.
Note: For membership of a particular social group, see sections 5K and 5L.
(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(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):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(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.
(6) In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.”
At [52] of its reasons, the Tribunal did not accept that the applicant had any well-founded fear of persecution because of his membership of a particular social group, or because of his actual or imputed political opinion. The Tribunal had, at [50], appropriately recognised that for it to be found that there was a real chance that the applicant would be persecuted if he returned to Fiji, the fear of persecution must be based upon a refugee nexus. The Tribunal adopted the language of s. 5J(4) of the Act when it stated that the relevant nexus/fear of persecution under s. 5J(1)(a) must be the essential and significant reason for the persecution.
It is clear from a reading of s. 5J(1) of the Act, that the function of the Tribunal, consistent with meaning of the phrase “For the purposes of the application of this Act and the regulations to a particular person …”, was for it to look at all of the evidence before it and, having done so, engage in a qualitative assessment as to whether or not the person had a well-founded fear of persecution. There were both subjective and objective elements to such assessment. It was required to assess whether:
a)The applicant feared being persecuted if returned to Fiji; and
b)There was a real chance that the applicant would be persecuted if he returned to Fiji; and
c)The real chance of persecution related to all areas of Fiji.
The Tribunal found that s. 5J(1)(a) of the Act had been satisfied.
As to whether or not there was a real chance that the applicant would be persecuted if returned to Fiji, and whether any fear of persecution on the applicant’s part was well-founded or not, the Tribunal, at [58] and [59], correctly identified what constituted the relevant principles for consideration as follows:
“[58] A ‘real chance’ is one that is not remote, insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
[59] According to the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (at p.572):
….Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.”
(Emphasis added in original)
At [60] – [74] inclusive of its reasons, the Tribunal intellectually engaged on the question as to whether there was a real chance that the applicant would suffer serious harm if he returned to Fiji. It considered the evidence before it and made findings as follows:
a)In the period between the time when the applicant was threatened in 2002, and the time of the Tribunal’s decision in September 2019, there had been a period of upheaval in the way of life in Fiji – including political unrest and a military coup. It considered whether such events would constitute evidence suggestive of there being a real chance of the applicant’s persecution if he returned. At [62], the Tribunal accepted that information in the DFAT Country Information Report for Fiji dated 27 September 2017 suggested that there had been substantial political instability and military influence in Fiji life subsequent to 2000. At [63], it was recorded that after the return to constitutional government in late 2014, the rule of law in Fiji had generally improved, and that for most citizens the police and military were effective and impartial. There were ongoing concerns about the independence of the judiciary, and of the extensive role the military played in government up until that time. It was noted that some military personnel were involved in ongoing harassment of opposition political leaders. At [64], it was noted that Fiji was generally stable and secure and that the 2006 coup had not affected the country’s overall crime rate. At [67], it was noted that Fiji’s amended constitution provided immunities for government action taken between 2006 and 2014, but that such immunity did not extend to criminal acts more generally, the immunity being directed toward coup related activities. At [68], it was noted that some military officials were recorded in the country information as having committed abuses with impunity where there had been political implications.
b)At [69], it found that the applicant had witnessed the murder of a man by a military person aged in his forties in 2002. The Tribunal was unable to find that the murderer was either a senior official of the government, or a senior officer in the military, based solely on the fact that he was accompanied by two (2) younger people who deferred to him at the time of the murder. There was no evidence before the Tribunal as to the identity of the person killed, or as to whether the killing had been reported as a high profile killing. At [70], it was found that the murder was an unreported or unsolved murder by a military person. It was unknown whether the murder was politically motivated or not. It was noted that the killing occurred two (2) years after the 2000 coup, and well before the 2006 coup, and that there was no country information which suggested political instability or politically related violence at that time.
c)At [71], it was accepted that if the applicant was to return to Fiji he would either need to obtain a passport, or proceed through a certification process, such that he may come to the attention of government officials at the airport. The Tribunal found that that alone would not give rise to there being a real chance of persecution. At [72], the Tribunal found that there was no evidence to suggest that the murderer was still alive or, if he was still in Fiji, whether he would be concerned about the applicant returning to Fiji. There was no evidence as to whether the murderer held a position of power or influence in the military, or in the government, or whether he would seek to use any influence he might have to cause harm to the applicant. The Tribunal considered the issue as to whether, in those circumstances, the applicant would be protected by the state.
d)At [73], the Tribunal found that it was not satisfied that there was a real chance that the applicant would suffer serious harm should he return to Fiji. It pointed to the fact that the murder and threat to the applicant had occurred seventeen (17) years ago. It found that it was unlikely that the assailant/murderer would have kept details of the applicant’s identity, or his identity card, for seventeen (17) years. It found that there was nothing to suggest that upon return to Fiji the applicant would be monitored by the military or security officials, or that his return would be otherwise considered as exceptional or noteworthy.
e)At [74], the Tribunal found that though the applicant had a fear of persecution, such fear was mere speculation on his part.
f)At [76], the Tribunal found that there was a real chance that the applicant “ … will suffer psychological harm upon his return to Fiji because of his long held fear and possible post-traumatic stress. We also accept that such harm could be categorised as serious harm within the meaning of s. 5J(5) of the Act. The question is whether this engages the refugee criterion for the purposes of s. 36(2)(a) of the Act.”
The Tribunal found that s. 36(2)(a) did not apply.
g)At [78], the Tribunal noted that persecution required serious harm to be inflicted by means of systematic and discriminatory conduct. [1] The Tribunal found at [80] that psychological harm suffered by the applicant after the 2002 threat did not constitute persecution for the purposes of the Act. It found, unremarkably, that whether or not Australia owed protection obligations to the applicant was something to be decided by the Tribunal, at the time of the making of its decision, based upon its assessment as to whether or not there was a real chance that the applicant would suffer persecution in the receiving country at some future time. Even if it is inferred that the Tribunal’s finding was taken to mean that the applicant would suffer an exacerbation of his post-2002 psychological condition if he was to be returned to Fiji, the Tribunal did not err because of its earlier finding that there was no real chance that the murderer, or any other person, would seek to persecute the applicant upon any return by him to Fiji. The Tribunal had weighed up all of the evidence before it and arrived at a considered decision.
[1] Section 5J(4)(c) of the Act.
Does the Applicant meet the Refugee Criterion in s. 36(2)(aa)?
At [88] of its reasons, the Tribunal noted that it had been submitted that if the applicant returned to Fiji there was a real risk that he would face arbitrary deprivation of life or cruel, inhuman or degrading treatment. [2]
[2] Section 36(2A)(a), (d) and (c) of the Act.
At [89] of its reasons, the Tribunal noted that it had been submitted on behalf of the applicant that psychological harm feared by the applicant would engage the complimentary protection criterion because the harm was not dependent on the applicant’s removal (from Australia), but rather his removal to the receiving country where he had previously faced harm and trauma. It was also recorded that the applicant’s representative had conceded that the act of removal (from Australia), and any psychological harm resulting from such removal, would not engage complimentary protection. [3] At [90], the Tribunal found that “psychological harm attendant on previous trauma” did not engage the complimentary protection criteria.
[3] Footnote 19 on CB p. 495.
At [91], [92], and [97] – [110] of its reasons, the Tribunal entered upon a consideration of a number of cases said to be determinative of issues of principle relating to whether or not the applicant fell within s. 36(2)(aa) of the Act. Whatever the presiding Judge meant in paragraph [32] of Her Honour’s judgment in CKX16 v Minister for Immigration & Anor [2018] FCCA 2894, the Court considers that it is unnecessary for the Court to enter upon a consideration of the judgment in that case, or the judgments in the other cases there discussed by the Tribunal. The Tribunal had properly carried out its statutory function when arriving at its decision, irrespective of the force or effect of any such judgment. To the extent that the Tribunal purported to apportion different weight to the respective judgments considered by it, the Court finds that the Tribunal’s endeavours, in that regard, did not prevent it from fulfilling its obligations to properly assess the evidence, and then arrive at a considered decision unaffected by illogicality or irrationality.
Section 36 of the Act relevantly set out the criteria to be satisfied in order for a protection visa to be granted. The s. 36(2)(a) criteria were considered by the Tribunal as referred to above. The Tribunal found that there was not a real chance that, if the applicant returned to Fiji, he would be persecuted. Section 36(2)(aa) imposed a different test in respect of complimentary protection, but it nevertheless also required the Tribunal to assess whether, as a necessary and foreseeable consequence of the removal of the applicant to the receiving country at a time in the future referable to such removal, there was a real risk that the applicant would suffer significant harm.
Because the Tribunal found that the applicant did not have a well-founded fear of persecution if he returned to Fiji, it necessarily found that the applicant would not suffer any serious harm if he so returned. Serious harm was defined to include those matters set out in s. 5J(5) of the Act.
Whether or not the applicant would suffer “significant harm” under s. 36(2)(aa) of the Act, if he returned to Fiji, required a consideration of the definition of significant harm as set out in s. 36(2A), which provided as follows:
“Section 36 – Protection visas—criteria provided for by this Act
…
(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.”
When assessing whether there was a real risk that the applicant would suffer significant harm if he returned to Fiji, it was held in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 that the relevant test for doing so was the same as the “real chance test” for the purposes of s. 36(2)(a) of the Act. That real chance test was held by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 575 to be as follows:
“Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not "differentially at risk for a Convention reason.” Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.”
At [109] of its reasons, the Tribunal accurately categorised the position as follows:
“[109] The submissions do not address the fundamental issue about the clear meaning of ss.36(2A) and 5(1). Subsection 36(2)(aa) directs attention to the question of whether there is a real risk that a claimant will suffer significant harm, as exhaustively defined by s 36(2A), as a necessary and foreseeable consequence of removal from Australia. A non-citizen will suffer significant harm if the person will be subject to the types of harm enumerated in ss.36(2A)(a) to (e), which are further defined in s.5(1) to be an “act or omission”.”
The Court agrees with what the Tribunal said at [110] as follows:
“[110] … We also note that when s. 36(2A) is read with s. 5(1) the clear meaning is that the non-citizen will be subjected to an act where suffering is intentionally inflicted. This is inconsistent with suffering harm from a previous act.”
The Court further agrees with what the Tribunal said at [111] as follows:
“[111] … In our view, ss.36(2A) and 5(1) are clear in their terms. To engage s.36(2)(aa) an applicant must satisfy the Tribunal that there is a real risk he or she will suffer significant harm in the receiving country and this means an act or omission taking place in the receiving country. This cannot be constituted by an act in the past or the future consequence of an act in the past. Psychological harm is a mental state and is not an “act” but rather an illness which is manifest, in this case, by reason of a previous act.”
The only category of significant harm which was open to the applicant for consideration, in respect of complimentary protection, was that as set out in s. 36(2A)(d) of the Act – namely whether the applicant would be subjected to cruel or inhuman treatment or punishment upon his return. None of the other categories were open on the evidence before the Tribunal, or based upon its finding that Australia did not owe protection obligations to the applicant under s. 36(2)(a) of the Act. The term “cruel or inhuman treatment or punishment” was defined in s. 5(1) of the Act as follows:
“Section 5 – Interpretation
…
“cruel or inhuman treatment or punishment” means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person or;
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.”
As is seen from the above definition, the pain or suffering required for there to be cruel or inhuman treatment or punishment must be that which “ … is intentionally inflicted”. If it had been intended by the legislature that past acts or omissions could relevantly be the acts or omissions for the purposes of assessing whether there was a real risk that a non-citizen would suffer significant harm if returned to their receiving country, then the definition could have been enacted such that it contemplated the infliction of pain or suffering which “ … had been … intentionally inflicted.” The legislature did not choose to do so.
At [112], the Tribunal found that the significant harm as defined in s. 36(2A) was intended to mean harm perpetrated by others. [4] In so finding, the Tribunal correctly rejected the applicant’s submissions that the psychological consequence of the threat made to the applicant in 2002, ongoing as it was since the applicant’s departure from Fiji, could, upon his return, retrospectively constitute the original threat as being an intentional act or omission inflicted upon the applicant at the time of any such return. Such argument was a non sequitur.
[4] CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 per Reeves J at
The Tribunal found that the relevant complimentary protection criteria had not been met. It did so quite independently of its consideration of cases referred to it by the applicant’s representatives during the course of the hearing before it. It did not err in doing so.
Grounds for Review
Ground 1
As to Ground 1 of the Further Amended Application for review, it is firstly asserted that the Tribunal erred by failing to apply the judgment of Her Honour Judge Riley in CKX16. It was further submitted that the Tribunal erred in failing to properly apply the criteria as set out in s. 36(2) of the Act.
This Court does not find that the Tribunal fell into jurisdictional error, either in respect of its application or non-application of CKX16, or in respect of its application of the s. 36(2) criteria, in so far as they applied to protection or complimentary protection obligations. The Tribunal correctly directed its attention to whether protection obligations were owed under s. 36(2)(a) of the Act after a close and detailed consideration of all of the evidence before it. The Tribunal accepted that the applicant was a truthful witness, but did not find that he had a well-founded fear of persecution if he returned to Fiji. With the greatest of respect to Her Honour, no analysis by the Tribunal of what Her Honour found in CKX16 to be the relevant law on point distracted the Tribunal from properly performing its function of assessing all of the evidence before it, before then arriving at its considered decision. In that respect, any analysis by the Tribunal of CKX16 and the other cases cited to it, as recorded in its reasons, was otiose. Had it not referred to any of the cited cases in its reasons, it still would have properly fulfilled its administrative function.
In that respect, a decision of a tribunal is not necessarily vitiated for jurisdictional error even though the tribunal might have proceeded upon an incorrect legal principle. As was said in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [28] – [31] per Kiefel CJ, Gageler and Keane JJ:
“[28] The common law principles which inform the construction of statutes conferring decision-making authority reflect longstanding qualitative judgments about the appropriate limits of an exercise of administrative power to which a legislature can be taken to adhere in defining the bounds of such authority as it chooses to confer on a repository in the absence of affirmative indication of a legislative intention to the contrary. Those common law principles are not derived by logic alone and cannot be treated as abstractions disconnected from the subject matter to which they are to be applied. They are not so delicate or refined in their operation that sight is lost of the fact that “[d]ecison-making is a function of the real world”.
[29] That a decision-maker “must proceed by reference to correct legal principles, correctly applied” is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of noncompliance.
[30] Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.
[31] Thus, as it was put in Wei v Minister for Immigration and Border Protection, “[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act”. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.”
(Footnotes omitted)
Further, in Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151 at [10] – [11] it was said by Kiefel CJ, Gageler and Keane JJ as follows:
“[10] For the reasons given in Hossain v Minister for Immigration and Border Protection, the fact that the postulated legal error could have had no impact on the Tribunal’s decisions denied that error the character of a jurisdictional error. The postulated legal error at most led the Tribunal to ask a superfluous question. The Tribunal’s reasons for decision in each case make perfectly clear that its treatment of the relevant circumstance (as meeting the enrolment element of the definition of an “eligible higher degree student”, rather than as enrolment in the particular course in which the visa holder had been enrolled at the time of grant of the visa) did not impact on anything which the Tribunal otherwise did in finding facts and in reasoning to a conclusion as to the preferable exercise of discretion. For that reason, the postulated legal error could not have taken the decision of the Tribunal beyond the authority conferred on the Tribunal.
[11] The nature of the postulated legal error lends itself to analogy with cases in which a decision-maker has authority to exercise discretion but is mistaken as to the statutory source of that authority. The mistake as to the source of authority has consistently been held not to take the exercise of discretion beyond the statutory authority which the decision-maker actually has unless the mistake leads the decision-maker to ignore statutory requirements which might have resulted in the exercise of the discretion being different had they been observed.”
(Footnotes omitted)
Whether or not the Tribunal erroneously applied or misapplied some of the decisions cited to it was in the circumstances immaterial, and did not prevent it from being intellectually engaged in the issues before it. It appropriately applied the s. 36 criteria for both protection and complimentary protection purposes. There was nothing wrong with its analysis of the evidence, nor was there any demonstrated deficiency in its decision making process.
Alternatively, even if it was found that the Tribunal had proceeded on an incorrect legal principle, it could not be said that that could realistically have resulted in the Tribunal making a different decision. [5]
[5] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] – [46]
Res Judicata / Estoppel
It was submitted on behalf of the applicant that the principle of finality should apply to this application for review. That submission was based upon the proposition that Her Honour Judge Riley had already resolved all of the issues in the subject matter, both in a legal and factual context. The Court disagrees with such submission.
The decision under review by this Court is a different decision of a differently constituted Tribunal. That Tribunal dealt with the issues and claims raised by the applicant in a different way to that of the previous Tribunal, the decision of which was quashed by order of Her Honour in CKX16. This Court was required to independently review the decision of the most recent Tribunal. It could not have been intended by the legislature that this Court’s review of the decision of the Tribunal, pursuant to the provisions of s. 476 of the Act, would merely rubber stamp Her Honour’s prior decision, irrespective of its merits, in the absence of clear and unambiguous language in the Act to that effect. To countenance such a proposition, in the absence of such language, would be undermining the due administration of justice.
Accordingly, decisions such as Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51 (Res judicata) and Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (Estoppel) do not apply. It would be contrary to public policy if that was so.
Ground 1 is without merit.
Ground 2
This ground fails for the same reasons as held in respect of Ground 1.
The Tribunal appropriately addressed all of the applicant’s claims relating to psychological harm being suffered by him should he be returned to Fiji. The Tribunal appropriately engaged with the issue as to whether a past act in Fiji could found the basis for complimentary protection pursuant to s. 36(2)(aa) of the Act. It did not need to closely analyse either the decision in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 or GLD18 v Minister for Home Affairs [2020] FCAFC 2 for the purpose of its consideration as to whether complimentary protection obligations were owed to the applicant or not. It found, as it was entitled to do, that there was not a real risk that the applicant would suffer significant harm if he returned to Fiji. It did not err in so holding, particularly in circumstances where it had found that the relevant significant harm asserted would not have been intentionally inflicted after the applicant’s arrival in Fiji in any event.
There is no merit to this ground.
Ground 3
The applicant has conceded that because this Court is bound by the judgment of the court in GLD18 it must dismiss this ground.
The Court accordingly dismisses the ground on the basis that it is bound by judgments of the Federal Court of Australia and the Full Court of the Federal Court of Australia. [6]
[6] SZRSN and GLD18 respectively.
Ground 4
By Ground 4 the applicant asserted that the Tribunal had failed to properly apply the statutory test for refugee protection. When asked by the Court as to whether the applicant was asserting irrationality or illogicality on the part of the Tribunal, Counsel for the applicant responded as follows:
“MR ALBERT: Yes. Can I just make a couple of brief points. The first is that ground 4 is not an irrationality ground. So the case law referred to and the principles referred to by Ms Symons don’t assist your Honour. The ground – and your Honour will find it in the framing of the ground – is a failure to perform the statutory task and it steps away from the irrationality or legal unreasonableness because it is not put by us that the tribunal’s decision was irrational. It’s put by us that it failed to apply the law which requires a ..... or assessment, reasoned by a reference to rational actor and your Honour ought not fall into the trap that my learned friend submission – my learned friend’s submissions have of confusing the need to approach the task by reference to a rational actor as compared with the reasons being irrational; they’re two very different things. We allege the former, not the latter.” [7]
[7] Transcript p. 104.04 – .14.
The Court finds that there is no merit to this ground. The Tribunal’s reasons at [50] – [74] clearly reflected that it had considered all of the applicant’s claims for refugee protection. At [71] – [72], the Tribunal assessed the likelihood of the applicant coming to the attention of the Fijian authorities in the light of country information before it, as well as whether there was a real chance that if the murderer was still alive and living in Fiji, he would still be concerned about the prospect of the applicant returning to Fiji and reporting him to law enforcement agencies. It also assessed whether there was a real chance that such person would be in a position of power to do anything adverse to the applicant even if he was still living in Fiji and alive.
The Tribunal also had regard to the lapse of seventeen (17) years since the relevant events took place. When assessing whether there was relevantly a real chance of the applicant suffering serious harm if he returned to Fiji, the Tribunal was entitled to take into account, in that context, whether or not any approach by unknown persons had been made to any of the applicant’s family who still lived in Fiji about the whereabouts of the applicant (the applicant’s mother and siblings continued to live in Australia after the applicant left Fiji). It was legitimate for the Tribunal to have done so, because if there was evidence of such contact over the years, then it would tend to reinforce the applicant’s claims that his identity was still known to the murderer (or his associates), and that the whereabouts of the applicant was of ongoing interest to them. That the evidence before the Tribunal was that there was no such contact, was but one factor which the Tribunal was entitled to have regard to in the light of the applicant’s claims. The Court finds that it was legitimate for the Tribunal to not accept, as either logical or illogical, the actions which might or might not have been taken, over time, by a vicious murderer, or his associates.
Alternatively, even if the Tribunal’s consideration of the fact that no approach had so been made to any of the applicant’s extended family in Fiji constituted a failure to appreciate that it would be illogical of the murderer to contact a member of the applicant’s family, so as to thereby give up his identity, the Tribunal was otherwise entitled to find, in the circumstances of the matter, that it was unlikely that the murderer and his associates would have kept details of the applicant’s identity, or identity card, for a seventeen (17) year period. Again, if there was any such error, such could not realistically have resulted in the Tribunal arriving at a different decision.
The Tribunal clearly engaged upon a consideration of the applicant’s claims and found against the applicant. It has long been accepted that different minds might legitimately reach different conclusions. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:
“[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
It cannot be said that the decision of the Tribunal was legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
Neither could it be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] - [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
Ground 5
This ground for review was an assertion that the Tribunal’s decision was infected by jurisdictional error by reason of its having failed to consider what was submitted to have been a breach by the Federal Court of Australia, since September 2017, of the provisions of s. 91X of the Act. That section provided as follows:
“Section 91X – Names of applicants for protection visas not to be published by the High Court, Federal Court or Federal Circuit Court
(1) This section applies to a proceeding before the High Court, the Federal Court or the Federal Circuit Court if the proceeding relates to a person in the person's capacity as:
(a) a person who applied for a protection visa; or
(b) a person who applied for a protection-related bridging visa; or
(c) a person whose protection visa has been cancelled; or
(d) a person whose protection-related bridging visa has been cancelled.
(2) The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person's name.
(3) In this section:
"application for a protection-related bridging visa" means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa.
"proceeding" means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.
"protection-related bridging visa" means a bridging visa granted as a result of an application for a protection-related bridging visa.”
It was submitted on behalf of the applicant that in the reasons for judgment of a Federal Court Judge handed down in 2017 (name of proceeding withheld), His Honour recorded a quote from a statement of the applicant which was submitted to have the potential of enabling the identity of the applicant to be ascertained. When asked by the Court as to how a Tribunal could possibly ascertain whether or not there was in existence some other judgment, of another court, which arguably might have revealed the identity of the applicant, Counsel for the applicant, when pressed as to what Counsel meant, said that the Tribunal ought to have “Read and applied the law relating to the person before them”. When again pressed as to what that meant in a mechanical sense, Counsel submitted as follows:
“ … That the Tribunal ought to have searched or Jade to ascertain whether there had been any judgments of any court concerning the applicant who appeared before the Tribunal for the purpose of ascertaining the legal principles and legal issues in any such case, and whether those may have affected his migration application, including whether there had been a breach of s. 91X of the Act.”
The Court rejects the applicant’s submissions. First, the submission that the Tribunal in this matter – and presumably all tribunals/authorities when dealing with protection visa applications – should carry out a time consuming search exercise of the type propounded, would be excessively burdensome and unwieldy. There is no statutory or other basis for a tribunal/authority being required to undertake such a process. There are sound public policy grounds for tribunals/authorities not being required to undertake what would in most cases be a speculative and unproductive exercise.
Second, on its proper construction, s. 91X of the Act prohibited a court from publishing the name of a person in any proceeding where such consideration of the person’s visa application was to be the subject of determination. In the present matter, the possible inclusion in a Federal Court judgment, in proceedings unrelated to the applicant’s protection visa application, of information or other material which could possibly identify the applicant, including the name of the applicant, does not fall within the scope of intended prohibition under s. 91X of the Act. That proposition was accepted by Mortimer J in G v Minister for Immigration and Border Protection (2018) 266 FCR 511 at [4] where, under the heading “THE USE OF A PSEUDONYM”, His Honour said:
“[4] The applicant correctly submitted it was doubtful that s 91X of the Migration Act 1958 (Cth) applied to this proceeding, because the subject matter of this proceeding does not directly concern the applicant in his capacity as a person who applied for a protection visa.”
Further, and in any event, Kenny J in AVN20 v Federal Circuit Court of Australia [2020] FCA 584 at [94], [95] and[108] said:
“[94] In construing a statute, the primary focus is of course the language used in the statutory text, acknowledging that the meaning of the text may, and often will, require consideration of the context, including the purpose and policy of a provision: see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47]. The ascertainment of purpose and policy may be assisted by reference to the history of a provision and relevant extrinsic materials.
[95] Section 91X applies in a proceeding before, relevantly, the FCCA, if the proceeding relates to a person in his or her capacity as, relevantly, a person who applied for a protection visa: see s 91X(1) and (3). The relevant direction is in s 91X(2), which provides that:
The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name.
The language is, as Mr Albert observed, clear, emphatic and unqualified, although the provision says nothing about the effect of an inadvertent failure by a relevant court to comply with the direction. One must look elsewhere for an answer to the question whether a failure to comply with s 91X has an invalidating effect on anything done by the court.
…
[108] Section 91X creates a duty of imperfect obligation. Courts to which the prohibition is directed are under a duty not to publish the names of certain persons in relation to the proceedings to which the prohibition applies. The statutory obligation in s 91X does not support the conclusion that the Parliament intended that a court’s failure to comply with the prohibition in the provision would invalidate the judgment of the court. Section 91X does not withdraw jurisdiction from the court on account of a breach on its part of the prohibition in s 91X.”
There is no merit to Ground 5 of the Further Amended Application for review.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Further Amended Application for review is without merit and is dismissed.
The Court will hear the parties as to costs.
Human Pseudonym
At the commencement of the hearing, Counsel for the applicant made an application for the re-assigning to the applicant in the proceeding of a “human pseudonym”. The Court asked why the applicant should be treated differently to all other similar applicants who currently have assigned to them, in their proceedings, titles which have three (3) letters and two (2) numbers as a pseudonym.
Counsel did not directly answer why a human pseudonym was sought, but rather referred the Court to a passage of a judgment of Federal Magistrate Neville handed down in SZNLZ v Minister for Immigration & Anor [2010] FMCA 28 at footnote 1, where it was recorded that the applicant in those proceedings was assigned “ … a specific but non-identifying name rather than a disembodying assemblage of letters”. No other reason was advanced by Counsel for the proposed assigning to the applicant in this case of a human pseudonym.
In the absence of any good and compelling reason being advanced as to why the assigning of a human pseudonym to the applicant in the title to the proceedings should be ordered, rather than the usual arrangement of letters and numbers, this Court is not prepared to so order. The Court infers that the current practice of attributing pseudonyms to applicants is appropriately based on sound administrative grounds. In the absence of objection being made by Counsel for the first respondent, it was ordered that the applicant be assigned a pseudonym in the usual way.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 7 May 2020
[65] – [68]. per Bell, Gageler and Keane JJ.
- AGLC
- BVT20 v Minister for Immigration [2020] FCCA 1075
- Case
- [2020] FCCA 1075
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court were whether there was a real chance that the applicant would suffer serious harm if returned to his home country, and whether the psychological harm he claimed to have suffered as a result of the 2002 threat was a relevant consideration for the Tribunal. Specifically, the Court considered whether the act of making a threat in 2002 could constitute a relevant act for the purpose of determining a real risk of significant harm, and whether any pain or suffering must have resulted from an intentional act or omission. The Court also considered whether the Tribunal had properly carried out its statutory task and made any material legal errors.
Judge Egan found that the Tribunal had not made any jurisdictional errors. The Court reasoned that the Tribunal was entitled to consider the applicant's claims regarding the 2002 threat and the resulting psychological harm. However, the Court ultimately determined that the Tribunal had properly assessed the evidence before it and had not erred in its application of the law. The application for judicial review was therefore dismissed.
Orders
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