CKX16 v Minister for Immigration and Anor (No.2)
[2018] FCCA 2894
•12 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKX16 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2018] FCCA 2894 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – whether the applicant made a claim that he would suffer significant harm in the form of mental suffering if he returned to his country of origin – whether that claim arose on the materials before the Tribunal – whether the Tribunal was obliged to consider significant harm that might occur in the future where the act causing it had occurred in the past – whether the Tribunal considered the claim in making findings of greater generality – whether the applicant made a claim to the Tribunal that a person who the applicant witnessed commit a murder was a military or army man – whether that claim went no further than the fact accepted by the Tribunal that the murderer was a powerful or important person – whether the Tribunal failed to perform its statutory task in taking into account the murderer’s failure to make enquiries about the applicant’s whereabouts when such enquiries were said to have been irrational on the murderer’s part. |
| Legislation: Migration Act 1958, ss.5, 36 |
| Cases cited: CKX16 v Minister for Immigration and Border Protection [2017] FCCA 447 Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; (1997) 48 ALD 481; (1997) 144 ALR 567; (1997) 71 ALJR 743; [1997] 9 Leg Rep 2; [1997] HCA 22 |
| Applicant: | CKX16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1874 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 20 July 2018 |
| Date of last submission: | 3 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 12 October 2018 |
REPRESENTATION
| Counsel for the applicant: | Matthew Albert and Nick Wallwork |
| Solicitors for the applicant: | None |
| Counsel for the first respondent: | Andrew Yuile |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The decision of the Administrative Appeals Tribunal made on 12 July 2016 in matter number 1606584 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1874 of 2016
| CKX16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a protection (class XA) visa.
Another judge of this court dismissed the applicant’s application for review. However, that decision was set aside on appeal and the matter was remitted to this court for redetermination. This is the redetermination.
The applicant required an extension of time in which to bring his application to this court. The Minister consented to an extension of time being granted, and orders were made to that effect on 30 April 2018.
The applicant’s claims
The applicant summarised the background to this matter in his written submissions that were filed on 12 April 2018 as follows:
4. The Applicant was born in Fiji on 22 July 1986. He came to Australia on an AH-101 (Child) Visa on 19 September 2001, when he was 15.
5. The Applicant returned to Fiji on 14 December 2001 and stayed with his father for approximately a year.
6. The Applicant gave evidence to the Tribunal that, on a Friday afternoon in late 2002 on his walk home from school, he witnessed “a Fijian man, who had two bodyguards, slit the throat of another man with a machete” in the suburb of Nepani, near Suva, Fiji. The bodyguards were identifiably from the army. The Applicant also gave evidence that:
The man who did the killing saw the applicant, grabbed him and told him if the applicant returns, he will kill him. The applicant stated that the man went through the applicant’s school bag and found his wallet, which had a proof of age card which detailed the applicant’s name. The applicant stated he was the only witness to this murder, which took place on a back road short cut.
7. The Applicant indicated on various occasions that he perceived the murderer to be an important and powerful individual. Moreover, the murderer was accompanied by “two army bodyguards”, which he understood to demonstrate that the murderer was a member of the Fijian military.
8. On 4 December 2002, a few weeks after witnessing the murder, the Applicant fled Fiji and has resided in Australia ever since. The Applicant’s father died on 6 June 2015, leaving the Applicant with no immediate family in Fiji.
9. On 12 August 2015, the Applicant’s AH-101 (Child) visa was cancelled, pursuant to s 501(2) of the Act, because the Applicant had been convicted of a number of criminal offences in Australia.
10. About three weeks later, the Applicant applied for a protection visa. On 19 October 2015 a delegate of the First Respondent refused to grant the Applicant a protection visa. The Applicant sought review of that decision at the Tribunal.
(footnotes omitted)
The Tribunal’s reasons
The applicant summarised the Tribunal’s reasons for decisions in his written submissions that were filed on 12 April 2018 as follows:
12. After a hearing on 17 June 2016, the Tribunal accepted that:
a. The Applicant’s subjective fear was ‘readily apparent in his evidence’;
b.The Applicant was a witness to a murder in 2002 and he was threatened by the man who was the killer ‘and was told by the killer to leave and not come back’; and
c. The Applicant’s perception that the killer was important or powerful at that time, because he had bodyguards, was a reasonable assumption on the Applicant’s part.
13. Notwithstanding those findings, the Tribunal concluded that “the applicant’s claimed fear of harm is not made out, [and] that he does not have a real chance of serious harm or a real risk of significant harm” if returned to Fiji. The Tribunal came to that conclusion because it did “not accept that the threat made in 2002 by this unknown man has any basis in fact in 2016” and held “the claim that the applicant would be harmed by this man [is] mere speculation, and not one that could be considered a real chance or real risk of occurring.” For those reasons, the Tribunal affirmed the decision under review on 12 July 2016.
(footnotes omitted)
Ground 1
The first ground of review in the application filed on 26 August 2016, amended on 1 December 2016, further amended on 23 February 2017 and further amended again on 12 April 2018 (“the application”) is:
The Tribunal erred by failing to take into account a relevant consideration or failed to ask the right question, namely whether the real risk of mental (not physical) harm occasioned by the threat to kill made to the Applicant by the killer he witnessed could amount to significant harm for the purposes of s 36(2)(aa) of the Migration Act 1958 (Cth).
The Tribunal accepted that the killer had threatened to kill the applicant if he returned to Fiji. The applicant submitted that the mental harm that the threat of death would cause the applicant if he returned to Fiji constituted significant harm, such that the applicant met the criteria for a protection visa.
Section 36(2) of the Migration Act 1958 (“the Act”) provides that:
A criterion for a protection visa is that the applicant for the visa is:
…
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …
Section 36(2A) of the Act provides that:
A non-citizen will suffer significant harm if:
…
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment …
Section 5 of the Act provides that:
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 …
(emphasis added)
The applicant argued that the Tribunal only considered whether the applicant faced a real chance of being killed or otherwise physically harmed if he returned to Fiji but failed to consider whether being returned to Fiji could cause the applicant severe mental pain or suffering.
The Minister argued, firstly, that the applicant had never claimed at the hearing before the Tribunal that he would suffer severe mental pain or suffering and therefore the Tribunal did not need to consider that issue. The Minister also argued that the issue did not squarely arise from the materials.
In support of those arguments, the Minister relied on MZZES v Minister for Immigration [2014] FCCA 758[1] at [29], where the court said:
It is clear, in my view, that what the Applicant feared was that the policeman would make good his threat, and that is how his claim was put. It did not demand, in the circumstances of this case, for the Tribunal to entertain an enquiry as to whether the threat per se constituted significant harm.
[1] This decision was overturned on appeal in MZZES v Minister for Immigration and Border Protection & Anor [2015] FCA 397. However, the reasons for decision were upheld in relation to paragraph 29. Both parties in the present proceeding relied on paragraph 29 of the first instance decision in MZZES.
However, in the next sentence of MZZES, the court said:
It is accepted that there are circumstances where a threat, in itself, constitutes significant harm, but only in particular circumstances could a threat be caught by the statutory description.
The applicant argued that he had expressly made the claim that he would suffer mental harm if he returned to Fiji. Firstly, the applicant noted that, in the transcript[2] of the hearing before the Tribunal, the member said at page 5 line 32 that he had information from the applicant’s mother that the applicant would be traumatised if he were returned to Fiji. Traumatised in the present context can only be understood as meaning mentally traumatised. Mental trauma clearly means severe mental pain or suffering.
[2] The transcript of an enhanced tape recording of the Tribunal hearing is exhibit AG-5 to the affidavit affirmed by Antonietta Guerra on 18 May 2018.
The applicant also noted that, in the transcript of the Tribunal hearing at page 20 line 13, the Tribunal asked the applicant:
… do you need any psychological, physical, mental or emotional support going back to Fiji? Because if you do go back to Fiji you’re not going to have that from your mother. Do you need that?
The transcript records the applicant’s response as indistinct. I have carefully listened to the enhanced tape recording of the Tribunal hearing but I have been unable to hear what the applicant said at that point. However, it would seem that the applicant replied in the affirmative, as the Tribunal went on to refer to the support services available in Fiji.
In my view, the claim that the applicant would suffer severe mental pain or suffering if he returned to Fiji was expressly made at the Tribunal hearing, at least by the applicant’s mother, which must be understood as being a claim made on the applicant’s behalf. In context, it also seems likely that the applicant responded affirmatively when asked whether he would need psychological support if he returned to Fiji. This conveyed a claim that the applicant would suffer severe mental pain or suffering if he returned to Fiji.
In addition, the issue arose on the materials and on the facts accepted by the Tribunal. The Tribunal said in its reasons for decision:
48. The applicant has disclosed information about a violent event that he witnessed, something he has told no-one, not even his family. The response from his sister, who determined that this explained other activities of the applicant in the past, such as not returning to the funeral of the father with the other family members, despite funerals being a significant matter in Fijian culture. The Tribunal was struck by the language of the applicant when describing the incident, a person who was otherwise quite reticent, detailing specific images such as the machete cutting the throat of the man. The details of the incident, now 14 years old, were quite apparent in the applicant’s recollection. The Tribunal was struck by a particular statement of the applicant, that the ‘fear that I fear now is the same as I felt on the day’. This explained his reticence, to a degree, but also his subjective fear which remained, and was recounted a number of times during the hearing.
49. The Tribunal has considered this claim. The Tribunal accepts that the applicant was a witness to a murder in 2002, and that he was threatened by the man who was the killer. The Tribunal accepts that the applicant’s perception that the killer was important or powerful at that time, because he had bodyguards, was a reasonable assumption on the applicant’s part. The Tribunal accepts that the applicant is a witness of truth in this regard.
(emphasis added)
It is clear from the last sentence of paragraph 48 of the Tribunal’s reasons for decision that it accepted that the applicant had and continued to have a subjective fear of being killed by the murderer if he returned to Fiji. It is obvious that a person who, at the age of 16, had witnessed a gruesome murder, and who had been told by the killer that if he returned to Fiji he would be killed, might feel severe mental pain and suffering if he were returned to the place where the murder occurred, even 14 years later. For that reason, the issue arose on the materials and the facts as found by the Tribunal.
The present case is distinguishable from MZZES, because, in that case, there was no suggestion that the applicant had actually witnessed the relevant police officer killing anyone. In the present case, the applicant witnessed a person being murdered by having his throat cut with a machete and the murderer immediately thereafter threatened the applicant with death if he returned to Fiji.
It seems to me that the particular circumstances of this case are such that the threat could be caught by the statutory description, to use the words of MZZES. Consequently, I consider that the issue was raised, both expressly and on the materials, and, subject to the Minister’s further arguments which are discussed below, the issue had to be considered by the Tribunal.
The Minister’s second argument in relation to ground 1 was that the definition of significant harm is forward-looking, and requires the cruel or inhuman act to occur in the future. The authority cited by the Minister for that proposition was Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; (1997) 48 ALD 481; (1997) 144 ALR 567; (1997) 71 ALJR 743; [1997] 9 Leg Rep 2; [1997] HCA 22 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; (2004) 77 ALD 296; (2004) 205 ALR 487; (2004) 78 ALJR 678; [2004] HCA 18. Those cases obviously preceded the introduction of the complementary protection regime. It seems to me that they are of no assistance in the present context, save for the obvious requirement that an applicant faces a real chance of harm in the future.
However, the question at present is whether it would be sufficient for the applicant to face a real chance of harm in the future, namely, severe mental pain or suffering, as a result of actions in the past, namely, a gruesome murder in the applicant’s presence and a threat to kill him if he returned to Fiji.
The applicant, without going into any detail, submitted that the act causing the harm could occur in the past, provided that the harm itself occurred in the future.
Paragraph 36(2)(aa) of the Act requires that, relevantly:
… as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm …
That provision obviously requires the harm (the severe mental pain or suffering) to occur in the future but says nothing about when the action causing the harm (the threat) must occur.
Subsection 36(2A) of the Act relevantly provides that:
A non-citizen will suffer significant harm if … the non-citizen will be subjected to cruel or inhuman treatment or punishment …
Section 5 of the Act relevantly provides that:
cruel or inhuman treatment or punishment means an act or omission by which … severe pain or suffering, whether physical or mental, is intentionally inflicted on a person … .
Inserting the relevant part of the definition of cruel or inhuman treatment or punishment into s.36(2A) of the Act makes that provision read:
A non-citizen will suffer significant harm if … the non-citizen will be subjected to an act or omission by which … severe pain or suffering, whether physical or mental, is intentionally inflicted on a person …
Inserting that statement into paragraph 36(2)(aa) of the Act would make the provision read:
as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will be subjected to an act … by which … severe pain or suffering, whether physical or mental, is intentionally inflicted on a person …
It seems to me that a person will be subjected to an act in the future if the person suffers the consequences of the act in the future, even if the act itself is in the past. For example, a person going to Chernobyl next week will be subjected to an act (consisting of a nuclear meltdown that occurred over three decades ago) by which pain or suffering (in the form of high levels of radiation) is inflicted on the person next week.
Even if I am wrong about that, it seems to me, applying the Project Blue Sky[3] principles, that the Parliament must have intended to give complementary protection for future harm suffered in consequence of past actions. There is no conceivable policy reason to carve out from the complementary protection regime future harm that was caused by actions that occurred in the past. Consequently, I do not accept the Minister’s second argument on ground 1.
[3] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; (1998) 153 ALR 490; (1998) 72 ALJR 841; [1998] 8 Leg Rep 41; [1998] HCA 28.
The Minister’s third argument on ground 1 was that the Tribunal in fact did consider whether the applicant would suffer future mental harm if he returned to Fiji in the sense that the Tribunal made findings of greater generality that subsumed the issues concerning future mental harm. The Minister relied on paragraphs 52 to 64 of the Tribunal’s reasons for decision, which are as follows:
52. The Tribunal stated at the hearing that there were a number of concerns with the claim that this man would still be interested in the applicant and would harm him on return to Fiji. The Tribunal noted that this incident was a significant time ago, almost 14 years had passed, and the killer’s contact with the applicant was fleeting. The applicant stated it was limited to a threat to get away and never return, and the finding of a proof of age card, which had the limited detail as to the applicant’s age and name. The Tribunal expressed its concern that the applicant was now 30 years old, and would not be recognisable from the youth who was spoken to 14 years earlier in the late afternoon, shortly before nightfall, by any person. The Tribunal expressed its concern that this person would not remember the name of the applicant arising out of the incident that occurred so long ago.
53. The Tribunal noted that the applicant’s family in Fiji, who lived nearby, had never been contacted by anyone arising out of this event. It was confirmed that the name ‘[applicant’s surname]’ was rare in Fiji, it was only their family. However no person ever approached the applicant’s family, either soon after this incident or in the subsequent 14 years to determine the whereabouts of the applicant. This leads the Tribunal to consider that there is no interest in the applicant by any person involved in a killing in 2002, as there was no approach or conformation of the applicant’s identity that the applicant is aware of in the intervening period to now.
54. The Tribunal has also considered the immediate aftermath of this incident. The man let the applicant go, despite being a witness to the incident, and told him never to return. The applicant remained in Fiji for a month after this, staying with his family. No-one came looking for him, despite what has been stated as the uncommon name. The applicant noted that there was no subsequent reporting of any killing or missing person. The killer was not arrested during the period the applicant remained in Fiji. A review of the internet at the hearing disclosed no references to any murder in Suva or Nepani in late 2002. The Tribunal stated that it appeared that there was no reference to this killing, and questioned whether there would be any action against the applicant so many years later by this unknown person. The applicant stated that he was sure he would be killed. The Tribunal considers that this belief of the applicant is pure supposition, and not based on any objective basis.
55. The applicant has no idea as to who this man is. He could have passed away, left Fiji, or moved to another island. The Tribunal stated that it had significant concerns with the applicant’s claim that this man remained a threat to the applicant, given the passing of time. The Tribunal also noted at the hearing that there have significant upheavals that have occurred politically, economically and environmentally in Fiji since 2002. The Tribunal noted that any of these issues could have had a significant effect on the man the applicant described as being influential in 2002.
56. The applicant has no idea who the man who threatened him was. There have been no subsequent threats made to him or his family, no contact that has been made seeking the applicant or his personal situation. Apart from the one off incident in late 2002 the applicant or his family has had no further contact from this person.
57. The Tribunal has to consider whether the applicant faces a continuing risk of persecution in the future for this particular reason. The Tribunal notes the Australian law on this point, as to a real chance being one that is not based on mere speculation or that it is not remote, but rather, has a real substantial basis.
58. A fear of being persecuted is well-founded if there is a ‘real chance’ of being persecuted.3 In Chan v MIEA Mason CJ observed that various expressions have been used in other jurisdictions to describe ‘well-founded fear’ – ‘a reasonable degree of likelihood’, ‘a real and substantial risk’, ‘a reasonable possibility’ and ‘a real chance’. His Honour saw no significant difference in these expressions, but preferred the expression ‘a real chance’ because it conveyed the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it was an expression that had been explained and applied in Australia.4 A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. According to Mason CJ in Chan v MIEA, the expression ‘a real chance’:
… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.5
59. In the same case Dawson J stated:
... a fear can be well-founded without any certainty, or even probability, that it will be realized. ... A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent.6
and Toohey J stated:
A “real chance” ... does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial.7
3 Chan v MIEA (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406-7, Dawson J at 396-8, McHugh J at 428-9.
4 Chan v MIEA (1989) 169 CLR 379 at 389.
5 (1989) 169 CLR 379 at 389.
6 Chan v MIEA (1989) 169 CLR 379 at 397-398.
7 Chan v MIEA (1989) 169 CLR 379 at 407.
Similarly, according to McHugh J:
[A] fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. ... an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be ... persecuted. Obviously, a far-fetched possibility of persecution must be excluded.8
60. Thus, as the High Court confirmed in MIEA v Guo, Chan establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.9
61. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:
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.10
62. The Tribunal accepts that the applicant was a witness to a killing in 2002, and was told by the killer to leave and not come back. The applicant has not been back since then. However the Tribunal does not accept that the threat made in 2002 by this unknown man has any basis in fact in 2016. The Tribunal considers the claim that the applicant would be harmed by this man to be mere speculation, and not one that could be considered a real chance or real risk of occurring.
63. It was noted at the hearing that people disappear in Fiji, that this is not reported. The incident that the applicant was involved in would appear to support that contention, given it was not reported. However simply because can this happen does not mean that there is a real chance or real risk of occurring to the applicant. The applicant himself was not killed when he was a witness to this incident, he was told to go away. After a month he did leave Fiji, and has not returned. The Tribunal considers that the applicant is not a person of interest to anyone in Fiji, thus he does not have a real chance of serious harm or a real risk of significant harm of disappearing for this reason.
64. The Tribunal finds that the applicant’s claimed fear of harm is not made out, that he does not have a real chance of serious harm or a real risk of significant harm for this reason.
8 Chan v MIEA (1989) 169 CLR 379 per McHugh J at 429.
9 MIEA v Guo (1997) 191 CLR 559 at 572.
10 MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
Paragraph 52 of the Tribunal’s reasons for decision does not contain findings but a summary of what was said at the Tribunal hearing.
Paragraph 53 of the Tribunal’s reasons for decision contains the finding that no one involved in the murder would still be adversely interested in the applicant. However, that finding addressed the question of whether the applicant faced a real chance of physical harm if he returned to Fiji. It did not address the issue of whether the applicant being returned to Fiji, without any real chance of suffering physical harm, or any contact at all with the murderer, might nevertheless cause him severe mental pain or suffering.
Paragraph 54 of the Tribunal’s reasons for decision contains the finding that the applicant’s fear of being killed on return to Fiji was pure supposition. However, that finding does not address the present question.
Paragraph 55 of the Tribunal’s reasons for decision summarises statements made at the Tribunal hearing.
Paragraph 56 of the Tribunal’s reasons for decision contains statements that the Tribunal evidently considered were reasons that, objectively, the applicant did not face a real risk of physical harm upon return to Fiji.
Paragraphs 57 to 61 of the Tribunal’s reasons for decision concern the test for a real chance of persecution. Those paragraphs contain no findings in relation to the risk of the applicant experiencing severe mental pain or suffering upon his return to Fiji.
Paragraph 62 of the Tribunal’s reasons for decision contains findings to the effect that the applicant did not face a real chance of suffering physical harm from the murderer. That paragraph did not address the present issue.
Paragraph 63 of the Tribunal reasons for decision contains a finding that the applicant did not face a real risk of the significant harm of disappearing if he returned to Fiji. That finding did not address the present issue.
Paragraph 64 of the Tribunal’s reasons for decision is a conclusion that the applicant did not face a real risk of serious or significant harm for this reason. In context, this reason can only be understood as a reference to physical harm at the hands of the murderer. This paragraph does not deal with the present issue, which is the risk of significant harm consisting of severe mental pain or suffering arising from being returned to the place where the applicant witnessed a gruesome murder and where he was threatened with death if he returned.
I am not persuaded that the Tribunal made findings of greater generality or otherwise which addressed the question of whether the applicant might face a real chance of significant harm, consisting of severe mental pain and suffering, if he returned to Fiji. Consequently, ground 1 is made out.
Ground 2
The second ground of review in the application is:
The Tribunal erred by failing to take into account evidence of significance, namely that the killer was associated with the army.
The applicant maintained that he told the Tribunal that the murderer was a military or army man. It was not disputed that the Tribunal did not record in its reasons for decision a claim that the murderer was a military or army man. The applicant submitted that the failure to deal with the claim amounted to jurisdictional error.
The Minister submitted that the court should not accept that the applicant did tell the Tribunal that the murderer was a military or army man. Moreover, the Minister submitted that, even if the applicant had told the Tribunal that the murderer was a military or army man, the Tribunal dealt with that claim by accepting that the murderer was important or powerful because he had bodyguards. That finding was at paragraph 49 of the Tribunal’s reasons for decision.
In my view, when considering a real chance of persecution, there is a qualitative difference between accepting that a person is important or powerful because he or she has bodyguards and a person being in the military or the army. For example, celebrities can have bodyguards but not wield the power that a military or army man could wield. Consequently, I am not persuaded by the Minister’s second argument, being the argument that the Tribunal dealt with the claim by accepting that the murderer was powerful or important because he had bodyguards.
In relation to whether the applicant actually made the claim that the murderer was a military or army man, an enhanced audio recording of the Tribunal hearing and a transcript of the enhanced audio recording were put before the court.[4] The transcript shows various points where the recording is described as indistinct.
[4] The enhanced tape recording of the applicant’s hearing before the Tribunal is exhibit JC-1 to the affidavit affirmed by Joseph Carra on 4 June 2018 and the transcript of an enhanced tape recording of the Tribunal hearing is exhibit AG-5 to the affidavit affirmed by Antonietta Guerra on 18 May 2018.
The audio was indistinct because the applicant was participating in the Tribunal hearing by telephone from Christmas Island and his words were at best fairly faint. In addition, the microphone picking up the applicant’s words seems to have been very close to the Tribunal member’s keyboard, which he frequently typed on during the hearing.
I have listened to the enhanced audio recording and replayed parts of it numerous times. The transcript largely reflects what I heard on the enhanced audio recording. There were some minor and immaterial differences. One major difference was that the transcriber at page 20 line 31 said that certain words were indistinct, when I heard the whole sentence to be:
Only the fear that I feel now is the same as I felt in that moment.
The Tribunal recorded that statement in paragraph 48 of its reasons for decision.
The Minister submitted that the court should not accept that the applicant said that the murderer was a military or army man in the indistinct passages because either the context or duration of the indistinct passages was such that, realistically, the applicant would not have made the alleged claim at those points.
The first two indistinct passages are at pages 5 to 6 of the transcript and are as follows:
APPLICANT: Well, I’ve been living in here about 16 years that I’ve been in Australia. I haven’t been able to go back home since 2002, yes.
MEMBER: Why?
APPLICANT: I was told that if I go back that (indistinct).
MEMBER: But why?
APPLICANT: The last time I was in Fiji I seen something I shouldn’t. I, um, I tried forgetting about it but it’s always been on my mind ever since.
MEMBER: Now, you’re going to have to − unfortunately you’re going to have to talk about it. Do your family know about this?
APPLICANT: I − I told them. I didn’t really give much details but I tell them why I couldn’t go back.
MEMBER: Mr [CKX16], this reasonably is − may well be your last opportunity to tell anyone in Australia, so I’m afraid you’re going to have to disclose this information and you’re going to have answer questions that I’m going to put to you about this. So what did you see?
APPLICANT: I witnessed − the last time I was in Fiji I witnessed a murder. I don’t know who the man was but, um, (indistinct) he had body guards around him wearing uniforms and I was told then if I do return then I’ll be killed and I haven’t back since then.
MEMBER: So you said you were told if you return you would be killed.
APPLICANT: Yes.
MEMBER: Who told you that?
APPLICANT: The − the man.
The first indistinct passage highlighted above could not realistically have contained a claim that the murderer was a military or army man because the context is that the applicant had not at that point said that he had seen any murder at all. The second indistinct passage highlighted above could have included such a claim. For example, the applicant could have said:
I don’t know who the man was but, um, he was a military man, he had body guards around him wearing uniforms
I do not think that the second indistinct passage was so short that the applicant could not have said that and the context does not preclude such a claim at that point.
The next two indistinct passages are at page 8 of the transcript and are as follows:
MEMBER: So what did it have − what did − that information that he got about you, he got your name?
APPLICANT: Yes.
MEMBER: What else − other information did he get?
APPLICANT: That’s pretty much it (indistinct).
MEMBER: Okay. So he didn’t − wouldn’t have known where you lived or − yes. Was there anything distinctive about this man?
APPLICANT: No, apart from the − the two guys standing next to him, Yes. I just know in my head (indistinct).
In context, the first of these two indistinct passages is most unlikely to have included a claim that the murderer was a military or army man because at that point the applicant was answering a question about what information he gave to the murderer. In context, the second of these two indistinct passages could have included a claim that the murderer was military or army man, because the applicant was being asked whether there was anything distinctive about the murderer. I do not consider that the second of these two indistinct passages was so short that the applicant could not have said at that point that the murderer was a military or army man.
The next indistinct passages are at page 9 of the transcript and are as follows:
MEMBER: Because if there’d been a murder of someone with profile, they would − political or business or something like that there might be some information about such an act of killing.
APPLICANT: I mean, at the time all I seen was what I saw and I just forget about what I seen and that’s (indistinct) anyone.
MEMBER: All right. So this has been playing on your mind obviously, you say, for the last 14 years?
APPLICANT: Sixteen years I’ve been here.
MEMBER: Yes. No, I understand, but this event happened 14 years ago. You obviously − you did – – –
APPLICANT: Not that I’ve ever seen (indistinct).
MEMBER: You didn’t go back to your father’s − your father passed away in June last year and you didn’t go back for that, I note.
APPLICANT: No, sir. No.
The context and duration of these two indistinct passages make it unlikely but not impossible that the applicant said at those points that the murderer was a military or army man.
The next two indistinct passages are at page 10 of the transcript and are as follows:
APPLICANT: I lived in a small community (indistinct), when I was in Fiji I lived in a small community.
MEMBER: Yes, but it’s – – –
APPLICANT: I mean, he will definitely know who I was in some way. He will come and kill me.
…
MEMBER: But it’s now 14 years later.
APPLICANT: Ever since I’ve been in − I know, sir. All I know, since then I’ve, I mean, I’ve always wanted to go see my father and go back to Fiji (indistinct words) I’ve never [been] so scared in my life.
The context of the first of those passages makes it most unlikely that the applicant claimed at that point that the murderer was a military or army man because the applicant was simply talking about where he lived. The context and duration of the second of these passages make it unlikely that the applicant claimed at that point that the murderer was a military or army man, because the applicant was talking about the extent of his fear rather than the person who caused his fear.
The next indistinct passages are at page 11 of the transcript and are as follows:
APPLICANT: No way would I go back, I’m afraid that something will happen to any of them. That’s why I told (indistinct) if I had to go back, I mean, it’s in my head, I’ll get killed.
…
APPLICANT: I was afraid that I was, someone was going to come (indistinct).
MEMBER: You’ve got strong family members who are here to support you.
APPLICANT: (Indistinct).
MEMBER: Sorry, please go again, I talked over you.
APPLICANT: I just − I haven’t spoken a word of it all these years and so far nothing has happened to me. I mean, I only spoke since today for the first time I ever told someone, in front of my family.
The context of the first of these indistinct passages makes it unrealistic that the applicant said at that point that the murderer was a military man, as the applicant was then telling the Tribunal who he had told that if he returned to Fiji he would be killed. It is most unlikely that the applicant would have told the Tribunal at that point that the murderer was a military or army man.
Having listened to the enhanced audio recording of the Tribunal hearing, it seems to me that the second indistinct passage on page 11 was the word here. The second indistinct passage on page 11 did not include a claim that the murderer was a military or army man.
The applicant was asked to repeat what he had said in the third indistinct passage on page 11. When he repeated what he had said, it was all audible and did not include a claim that the murderer was a military or army man. Consequently, there is no reason to suppose that the applicant claimed that the murderer was a military or army man in the third indistinct passage on page 11.
The next indistinct passage is at pages 11 to 12 of the transcript and is as follows:
MEMBER: So what have you told your family?
APPLICANT: Never really gave them like a direct reason why I (indistinct), I didn’t tell them my life was in danger, I hid it from them, I didn’t tell them.
MEMBER: So your mother and sister didn’t know all these details. They’re finding it out today for the first time?
APPLICANT: Yes.
Having listened to the enhanced audio recording of the Tribunal hearing, it seems to me that the indistinct passage on page 12, as set out above, consisted of words can’t go back. Consequently, I do not accept that the applicant said at that point that the murderer was a military or army man.
The next indistinct passage occurs at lines 41 and 42 of page 12 of the transcript and is as follows:
APPLICANT: I don’t want to ever set (Indistinct words) foot in Fiji. If I do, I am dead.
The context and duration of this passage make it unrealistic that the applicant could have said at that point that the murderer was a military or army man.
The next indistinct passage is at page 13 of the transcript and is as follows:
MEMBER:… Is [CKX16] a common family name in Fiji or is it unusual?
UNIDENTIFIED SPEAKER: Pretty unique, we’re the only (indistinct words).
APPLICANT: It’s only one [CKX16] family, only ours.
Having listened to the enhanced audio recording of the Tribunal hearing, it seems to me that the indistinct words in this passage were [CKX16] family. It also seems to me that the unidentified speaker was the applicant’s sister, who was present at the Tribunal hearing in Melbourne. Consequently, I do not accept that the applicant could have said during this passage that the murderer was a military or army man, or that anyone else said it on his behalf.
The next indistinct passages also occur at page 13 of the transcript and are as follows:
MEMBER: But, you know, you’ve not been told that this person’s ever approached your family in Fiji ever since to find out where you might be, for example?
APPLICANT: (Indistinct) since I’ve been in Australia I haven’t spoken to anyone in Fiji.
MEMBER: Yes, but your family or other family members may have spoken to your father and they’ve never mentioned it to you and they’d have no reason to talk to you about it if they didn’t know about it.
APPLICANT: (Indistinct) to Fiji so (indistinct).
The context of these passages makes it unrealistic that the applicant claimed at any of those points that the murderer was a military or army man.
The next indistinct passages are at page 14 of the transcript and are as follows:
APPLICANT: Member, Fiji is more island, there’s not many people there on that island.
MEMBER: There’s a few islands.
APPLICANT: I mean, this guy was obviously a man with power.
MEMBER: Why is he obviously a man with power?
APPLICANT: (Indistinct).
MEMBER: Why is he obviously a man with power?
APPLICANT: I mean, he had two bodyguards, two armed bodyguards.
MEMBER: Yes, so the person who was killed had − yes, the person who was killed had power.
APPLICANT: The person who was killed, I don’t know who he was. He just looked like a young man.
At this point, the Tribunal appears to have been confused about whether it was the murderer or the victim who had the body guards. In any event, Judge Riethmuller said in his judgment that the indistinct words in this passage were It’s a small island. Having listened to the enhanced audio recording of the Tribunal hearing, it sounds to me to like the applicant said, “He stole an island”, although I accept that is unlikely. In any event, I am confident that the applicant did not at that point say that the murderer was a military or army man.
The next indistinct passages were at pages 16 to 17 of the transcript and are as follows:
APPLICANT: I haven’t told anyone about this in 16 years. I mean, I’ve never gone back since then. I never talked to anyone about (indistinct). I never even talk to my family because I’ve been (indistinct words). I don’t think care if (indistinct words).
MEMBER: Yes, but you can see why I might have some concerns that something that happened now 14 years ago and the chance, the real chance or the real risk of serious harm or significant harm arising out of that incident, and I might consider that what your fear is, is not founded on any objective basis, such has passed − such time has passed, and this man may have no concern - - -
APPLICANT: (Indistinct) your question?
MEMBER: Yes, I mean, this is my concern.
APPLICANT: (Indistinct words).
MEMBER: So this is my concern, I might think that this may well be true, this may all be absolutely accurate, I mean, you know, it explains why you didn’t go back to your father’s funeral for example, but I might consider so what?
APPLICANT: (Indistinct words)
…
APPLICANT: I haven’t got any assistance or anything like that, but I have issues of my own but I keep it to myself. I know how (indistinct) but I keep it to myself.
It seems to me that the context of these passages makes it most unlikely that the applicant would have told the Tribunal at any of those points that the murderer was a military or army man.
The next indistinct passage is at page 19 of the transcript and is as follows:
APPLICANT: I don’t know anything at all. I mean, since he’s passed (indistinct words).
The context of this passage makes it unrealistic that the applicant could have said at that point that the murderer was a military or army man.
The next indistinct passages are at page 20 of the transcript and are as follows:
APPLICANT: I believe you should know the truth. I don’t want to be on asylum anymore. (indistinct words) it’s not doing any good.
…
MEMBER: So is there anything else, just let me check, I just want to check material as you’ve provided and see if there’s anything else. I mean, do you need psychological, physical, mental or emotional support going back to Fiji? Because if you do back to Fiji you’re not going to have that from your mother. Do you need that?
APPLICANT: (Indistinct).
MEMBER: Because Fiji has support services and hospital services, certainly not as good as what you I’ve had in Australia – that’s available in Australia, but it appears you’ve not been utilising any of those in Australia either. Yes, Fiji, as I say, is not as economically successful or opportunities don’t abound as they do in Australia, but there certainly are some. I’m not sure that if you were to go back to would be able to subsist. I have to really consider, I’m not sure if that really is aground to stop you from going back. Is there anything else? Is there any other information you want to tell me, any other detail, any other − any other − anything else you want to disclose to me you think I should take into account.
APPLICANT: Only the fear that I feel (indistinct words). I don’t know what to say.
MEMBER: Were you the only witness to this? There was no other witnesses?
APPLICANT: I was the only one there. There was only me there as well as (indistinct).
The context of the first and second of these indistinct passages makes it unrealistic that the applicant could have said at either of those points that the murderer was a military or army man. Having listened to the audio recording of the Tribunal hearing, it seems to me that at the third indistinct passage the applicant said now is the same as I felt in that moment.
In the fourth indistinct passage, it seems to me that it is possible from the context that the applicant could have said the army man, his bodyguards and the victim. From the duration of that indistinct passage, it is unlikely that the applicant said all of that, but it is possible.
The next indistinct passage is at page 22 of the transcript and is as follows:
APPLICANT: But you mentioned something before the − before you had a break you said it was illegal for the New Zealand Advocacy to represent me.
MEMBER: They cannot be your representatives.
APPLICANT: (Indistinct)?
MEMBER: Yes, so they are not migration agents. …
The context of this passage makes it unrealistic that the applicant could have said at that point that the murderer was a military or army man.
The next indistinct passage is at page 23 of the transcript and is as follows:
MEMBER: And the people at the front counter can give you the email address to send any further information.
APPLCIANT’S SISTER: Yes.
MEMBER: Okay? Mr [CKX16], – – –
APPLICANT: That’s with (indistinct words) weekend?
MEMBER: That’s correct. …
The context of this passage makes it unrealistic that the applicant could have said at that point that the murderer was a military or army man.
The next indistinct passages are at page 24 of the transcript and are as follows:
APPLICANT: When my visa got cancelled, was that supposed to be notified by the department?
MEMBER: Yes, they cancel your visa and they send that to you − send that notification of that decision to the address that they have for you, and it is then deemed − so after − it’s deemed to have been received by you. It’s completely irrelevant − − −
APPLICANT: (Indistinct words)?
MEMBER: Sorry?
APPLICANT: You said it’s irrelevant.
MEMBER: It’s irrelevant, but you know, having done some of that work in the past in that area, because the Minister cancelled your visa, the Minister personally cancelled your visa, it wasn’t a delegate, it wasn’t one of his staff members, it wasn’t a person from the Department of Immigration.
APPLICANT: I understand that, Member.
MEMBER:Yes.
APPLICANT: I just wanted to say, I mean, if I have the opportunity to provide information I’ll tell you what I did today, I would have done this outside, than putting me in detention.
MEMBER: Yes. Unfortunately he − − −
APPLICANT: (Indistinct words). I don’t see the difference. I mean, I don’t know what to say.
The applicant was asked to repeat what he said in the first of these indistinct passages and did not then say that the murderer was a military or army man. In context, it was unrealistic that the applicant would have made that claim at that point. Similarly, the context of the second of the indistinct passages on page 24 makes it unrealistic that the applicant would have made that claim at that point.
However, as discussed above, there were some points at which it was possible that the applicant could have made the claim that the murderer was a military or army man. Nevertheless, the Minister argued that the court should not accept the applicant’s sworn evidence that he had told the Tribunal that the murderer was a military or army man. The Minister said that was because the applicant in cross examination had changed his evidence in one respect.
Initially, the applicant said in his oral evidence in chief to this court that he had told the Tribunal that the two army bodyguards had forced him to watch the murder as it occurred.[5] Later, under cross-examination, the applicant said that he told the Tribunal that the bodyguards had grabbed him but he did not say to the Tribunal that they had forced him to watch the murder.[6] However, the applicant maintained to the court that he had in fact been forced to watch the murder.
[5] Transcript page 4 lines 39 to 42.
[6] Transcript page 9 lines 10 to 18.
The Minister argued that the change in the applicant’s evidence, albeit on a different issue, indicated that the applicant had elaborated on the true facts when he claimed to have told the Tribunal that he was forced to watch the murder, and, by inference, the applicant had also elaborated on the true facts when he claimed to have told the Tribunal that the murderer was a military or army man.
The Minister also pointed to the time that had elapsed between the Tribunal hearing on 17 June 2016 and the date when the applicant first raised the claim that he had told the Tribunal that the murderer was a military or army man, being the hearing before Judge Riethmuller on 3 February 2017. That is a period of about seven and a half months.
The Minister also submitted that the court should prefer the evidence of the enhanced audio recording, notwithstanding that some of it was indistinct, to the sworn evidence of the applicant.
It does not seem to me that the seven and a half months between the Tribunal hearing and the hearing before Judge Riethmuller was so long that the applicant could not have accurately remembered whether he had told the Tribunal that the murderer was a military or army man. The Tribunal hearing was obviously a very significant event for the applicant.
In relation to the change in the applicant’s evidence described above, when pressed, the applicant readily conceded what now appears to be the truth. He was not taken to any documentary or other evidence that contradicted him and thereby compelled him to admit the truth. He was simply asked in different ways what his evidence was and he clarified it. Notwithstanding that the applicant was pressed on the question of whether he had told the Tribunal that the murderer was a military or army man, the applicant remained steadfast in his evidence on that point.
I do not consider that the applicant’s change of evidence on a separate issue undermined his credibility on the point now under consideration. The applicant presented in the witness box as straightforward and credible, and perhaps a little intimidated by the circumstances in which he found himself. I consider that the mistaken evidence that the applicant initially gave was a result of nerves and misspeaking.
I do not consider that anything can be made of the absence of the claim that the murderer was a military or army man in the enhanced audio recording of the Tribunal hearing in circumstances where the recording is indistinct in places where, realistically, the applicant could have made the claim.
All in all, I found the applicant’s sworn evidence to be credible. I accept that the applicant did tell the Tribunal that the murderer was a military or army man. The Tribunal did not consider this claim and thereby fell into to jurisdictional error. Ground 2 is made out.
Ground 3
The third ground of review in the application is:
The Tribunal erred by failing to apply the statutory test for refugee protection, namely by taking into account irrational behaviour by the perpetrator in its assessment of the future risk of harm to the Applicant.
This ground concerns paragraphs 24 and 53 the of the Tribunal’s reasons for decision which are as follows:
24. The Tribunal noted that this incident occurred a significant number of years ago, almost 14 years. The Tribunal noted a number of issues with the passing of time. The applicant was no longer a 16 year old student but a 30 year old man. He had no idea who the killer was, where he was, whether he still was alive, whether he would remember the applicant and his name so many years later. The family in Fiji had never been approached. There was no report of any killing and the applicant knew nothing of any follow up. The Tribunal noted that Fiji had gone through significant political, economic and environmental changes since that time, and that it had concerns that the applicant’s subjective fear, which was readily apparent in his evidence, was not based on any objective basis. (emphasis added)
…
53. The Tribunal noted that the applicant’s family in Fiji, who lived nearby, had never been contacted by anyone arising out of this event. It was confirmed that the name ‘[applicant’s surname]’ was rare in Fiji, it was only their family. However no person ever approached the applicant’s family, either soon after this incident or in the subsequent 14 years to determine the whereabouts of the applicant. This leads the Tribunal to consider that there is no interest in the applicant by any person involved in a killing in 2002, as there was no approach or conformation (sic) of the applicant’s identity that the applicant is aware of in the intervening period to now. (emphasis added)
The applicant argued that it would have been completely irrational for the murderer to approach the applicant’s family in Fiji, as the murderer’s objective must have been to maintain his anonymity, and the Tribunal thereby failed in its statutory task. That task was to assess whether there was a real chance of the applicant suffering serious or significant harm. In assessing whether the applicant faced a real risk of harm at the hands of the murderer, the applicant submitted that it was not correct to proceed on the basis that the murderer would be irrational, because there is not a real chance that the murderer would behave in that way. The applicant expressly disavowed an irrationality argument, and said that the ground was a failure to correctly apply the statutory test.
The Minister’s submissions dwelt on the requirement for persecution to be for one of the five Convention reasons, thus making relevant the motivations of the persecutor. However, that requirement does not apply to the complementary protection provisions.
The Minister also argued that it was not irrational to take into account that the murderer had not approached the applicant’s family, although the Minister conceded that the issue may have been a peripheral one.
I do not accept the premise of this ground. That is, I do not accept that it would necessarily have been irrational for the murderer, possibly through underlings, to make discreet inquiries about whether the applicant had left Fiji or not. Consequently, this ground is not made out. Having said that, the Tribunal probably put far more weight on this point than it should have, particularly in circumstances where the evidence was such that the murderer could have made discrete enquiries, but, because they were discrete, the applicant would not realistically have learned of them and nor would the Tribunal. However, generally speaking, weight is a matter for the Tribunal.
Conclusion
As two of the applicant’s grounds have been made out, and as no submissions have been put to the court about discretionary factors, the matter will be remitted to the Tribunal for redetermination.
As there have been a number of interlocutory hearings in this matter, I will hear the parties’ submissions and possibly evidence on the question of costs.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 12 October 2018
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