CPF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 194

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

CPF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 194

File number(s):

SYG 3293 of 2015

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

29 October 2021

Catchwords:

MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant a Protection visa – whether Tribunal failed to consider claims or material that was before it – whether Tribunal failed to apply correct understanding of real chance test – whether Tribunal actively engaged with material in finding a claim was speculative – application dismissed.

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, Pt 2

Federal Circuit Court Rules 2001 (Cth) Sch 1, Pt 3

Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 414, 476

Cases cited:

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263

NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548

SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63

Division:

Division 2 General Federal Law

Number of paragraphs:

47

Date of hearing:

2 February 2021

Place:

Sydney

Counsel for the Applicants:

Mr J Young, by video

Solicitor for the Applicants:

G & S Law Group

Solicitor for the First Respondent:

Ms E Cheesman of Clayton Utz, by video

ORDERS

SYG 3293 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CPF15

First Applicant

CPG15

Second Applicant

CPH15

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	29 OCTOBER 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The first and second applicants pay the first respondent’s costs set in the amount of $7,853.

THE COURT NOTES THAT:

3.These are orders of the Federal Circuit and Family Court of Australia (Division 2).

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicants, who are citizens of Nepal, seek remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision made by a delegate of the first respondent (Minister) not to grant the first applicant a Protection (class XA) visa (Protection visa).

   CLAIMS FOR PROTECTION

2. On 11 December 2013 the first applicant (applicant), together with the second and third applicants, being two members of the applicant’s family unit, applied for a Protection visa.

3. The applicant stated her claims in a statement that formed part of her application,[1] which may be summarised as follows:

   (a)The applicant departed Nepal in 2008 due to Maoist pressure to join them. The applicant refused to do so because she was a believer of a different political party, the “UML”.

   (b)The applicant was forced to seek shelter elsewhere because the Maoists were asking for donations. The applicant could not afford to pay the donations, and young people who were not able to pay the money were asked to join as cadres in the “YCL”, or join as political party activists of the Maoist party to help them expand their influence among the voters.

   (c)The applicant worked as a messenger for the Maoists for about two years before she arrived in Kathmandu from Phidim. Maoist activists required the applicant to give information about the army that used to visit the applicant’s village, and the Maoists interrogated the applicant with many questions. The applicant almost worked as a sentry for the Maoists against her will. The applicant was scared that if the army came to know of her role with the Maoists the army would have killed the applicant.

   (d)The applicant applied for a job in a post office, but the Maoists threatened that if the applicant was going to hold any government position they will destroy or kill the applicant’s family. The applicant, however, continued her studies, and sat for the final test for her “School Leaving Certificate”.

   (e)The applicant matriculated to college in 2004, and she continued her studies there until 2006. The applicant was unable to complete her studies because of continuous pressure to give “them” donations, and the applicant’s family really suffered.

   (f)After the applicant’s final examination in “class 12” the applicant returned to her village. The local Maoist activists came to see the applicant and proposed that she be a volunteer worker, and if she were to ignore their proposal they would issue a physical punishment on the applicant. The applicant said she could not give her decision right then.

   (g)In 2006 the applicant married and decided to leave Nepal until the situation in Nepal improved. It took almost one and a half years to prepare documents. But even during this period, militias used to meet the applicant “on the way”, and warned the applicant she could not go overseas, and that she must join the party.

   (h)If the applicant returns to Nepal she “will go back in full humiliation and mental torture”. “They” will ask the applicant to join the party; Nepal’s situation is worsening by the day; the Maoists recently lost in the election; and they are “planning to go back to jungle and start to torture”.

   [1] CB45-48

4. Before the Tribunal, the applicant expanded on her claims. The applicant said:[2]

   [2] CB141-142, [9]

   (a)The applicant studied in Phidim from 1994 to 2002, and then in Kathmandu from 2003 to 2006.

   (b)After completing her studies the applicant married her husband who used to be a teacher. He was preparing to go to Australia to study there.

   (c)While the applicant lived in her village, the applicant’s father, who was a strong supporter of the “UML party”, made the applicant a “simple member”; but from the time she was in year 8 the Maoists forced the applicant to join their party to work as a “messenger”, reporting on the army. The applicant found herself caught between the army who told her she had to listen to them, and the Maoists, who said the applicant had to keep everything secret.

   (d)After the applicant moved to Kathmandu the Maoists directed her to recruit members for the party, collect money, inform people about the party, gather information, and report on the army and security personnel in the capital, and be a “whistleblower”.

   (e)The applicant did not tell her husband about her problems with the Maoists until she got to know him after their marriage; and he suggested they go to Australia so he could study, and the applicant could be safe.

   (f)During the two years it took the applicant’s husband to organise the papers, the Maoists called the applicant from time to time, and asked her when she was returning to her village.

   (g)The applicant said she was scared that if she returned to Nepal the Maoists would force her to join the party, and force her to do things she did not like to do.

   (h)The applicant did not go to India because India supported the Maoists, and the Maoists could easily find the applicant in India.

   (i)The applicant could not go back to Nepal because she now has a small child; there was a critical situation in Nepal, with strikes and protests, because not everyone was satisfied with the new constitution; and the Maoists were even attacking children. If the applicant did not follow the Maoists they could harm her child.

   (j)Having been in Australia, the Maoists would expect the applicant has a lot of money, would expect donations from her, and inflict significant harm on the applicant and her child if she could not pay.

   TRIBUNAL’S REASONS

5. The Tribunal was not satisfied the applicant had been truthful about her experiences in Nepal, or that any of her evidence could be relied on; and the Tribunal was not satisfied the applicant “is in fear of persecution for a Convention reason or that there is a real chance that she will suffer serious or significant harm on her return to Nepal”.[3] The Tribunal relied on what it found were “multiple inconsistencies”, these being the following:

   (a)Before the Tribunal the applicant said she was forced to join the Maoist party, whereas in her written claims the applicant said she had refused to join the Maoist party; and before the delegate the applicant said that she feared that if she returned to Nepal the Maoists could take revenge on her for not joining the party.[4]

   (b)Before the Tribunal the applicant said the Maoists made the same demands of the applicant when she was in Kathmandu as they did when she was in her village, namely, to collect information about the army and security personnel, as well as to recruit people and collect money. Before the delegate, on the other hand, the applicant said that while she used to report on the army when she was in her village, when she was living in Kathmandu the Maoists only asked her to promote the party, and get her friends to join.[5]

   (c)In her written claims the applicant said she returned to her village after finishing her studies in Kathmandu. Before the delegate, however, the applicant said she did not return to her village, but she stayed in Kathmandu until she left for Australia.[6]

   [3] CB144, [19]

   [4] CB144, [15]

   [5] CB144, [16]

   [6] CB144, [17]

6. The Tribunal also relied on the applicant having applied for a Protection visa five years after she and the second applicant arrived in Australia, and only after the applicant failed to obtain a skilled visa.[7] The Tribunal found the applicant applied for the Protection visa “in an effort to secure her child’s future and achieve a migration outcome for her family”.[8]

   [7] CB145, [24]

   [8] CB145, [24]

7. Given these findings, the Tribunal was not satisfied the applicant was ever a member of the Maoist party, or that she assisted the Maoists in any significant way, including as a “messenger”, either in her village or in Kathmandu, or that the Maoists contacted the applicant, or required the applicant to work for them at any time or in any capacity.[9] The Tribunal, therefore, was not satisfied that, if the applicant returns to Nepal, she will face serious harm from the Maoists, or from the army, because she left her village against the Maoists’ wishes, or because she did not carry out their demands in Kathmandu, or that the Maoists will forcibly recruit her.[10]

   [9] CB144-145, [20]

   [10] CB145, [21]

8. The Tribunal considered “speculative” the applicant’s claimed fear that the Maoists will expect that, on the applicant’s return, she will have a lot of money, making the applicant and her child potential victims of an extortion attempt; and, for that reason, the Tribunal was not satisfied the applicant’s fear in that regard constitutes a real chance the applicants will suffer serious or significant harm on their return to Nepal in the reasonably foreseeable future.[11]

   [11] CB145, [22], [23]

9. On the basis of these findings, the Tribunal was not satisfied the applicants met the criteria provided for by s 36(2)(a) and s 36(2)(aa) of the Act.

   GROUNDS OF APPLICATION

10. The applicants rely on an amended application. It contains five grounds. The applicants do not press ground 2, but in their counsel’s written submissions, it is said that grounds 1 and 3 “are effectively subsumed in Grounds 4 and 5”.[12] In their counsel’s written submissions, the applicants made submissions that did not differentiate between grounds 1, 3, 4, and 5.

    [12] Applicants’ Outline of Submissions, [11]

11. Grounds 1, 3, 4, and 5 are as follows (errors in original):

    1.The Second Respondent took into account irrelevant considerations at paragraph 24 of the decision.

    Particulars

    a)   The Second Respondent states that the Applicant “. . . . applied for the visa in an effort to secure her child’s future and achieve a migration outcome for her family”

    b)   The Second Respondent took a negative inference from this. However all genuine Refugees and persons desperately needing protection from persecution and harm have the goal of securing the future of their children and achieving a migration outcome for their families.

    . . . .

    3.The Second Respondent failed to consider relevant considerations while assessing whether the Applicant’s meet the Complementary Criteria, namely the harm that will be faced by the Third Applicant child, who was born in Australia, if they were to return to Nepal.

    4.In relation to the claims identified by the Second Respondent as 9 k at CB 142-143, the Second Respondent made jurisdictional error(s) in that:

    a)   It failed to consider the discrete claim or component integer of a claim that the First Applicant and Third Applicant were at increased risk if they had to go to Nepal as Maoists were attacking children and that if the First Applicant did not follow the Maoists, they could harm her child.

    Sub Particulars of a)

    i.It is common ground that the Second Respondent is required to deal with the Applicants’ claims and their component integers; (see Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136, [42] Allsop J, Spender & Merkel JJ Agreeing)

    b)   The Second Respondent failed to provide any reasoning process or active intellectual consideration of its dismissal of the claim at 9 k as “speculative”.

    c)   Further or in the alternative to b) above, the dismissal of the claim as “speculative” was not based upon it being a negligible or remote chance but rather that it involved speculation as to the future not based on past events involving the First Applicant.

    5.The Second Respondent made jurisdictional error at [26] at CB 145 and 146 by dismissing all claims concerning complimentary protection and the Third Applicant upon the basis that the First Applicant “lacks credibility”.

    Parties’ submissions

12. The applicants’ counsel’s written submissions are principally directed to the claim the Tribunal identifies in paragraph 9.k. of its reasons, and the Tribunal’s determination of that claim in paragraphs 22 and 26 of its reasons. The  claim, as stated in paragraph 9.k. of the Tribunal’s reasons, is as follows:

    Another reason she could not go back was that she now had a small child and there was a critical situation in Nepal, with strikes and protests, as not everyone was satisfied with the new constitution. ‘They’ (the Maoists) were even attacking children and she did not feel safe. If she did not follow the Maoists, they could harm her child. Having been in Australia, they would expect that the applicant had a lot of money and expect donations from her; and inflict significant harm on her and her child if she could not pay.

13. The Tribunal determined these claims in paragraphs 22 and 26 of its reasons:

    The Tribunal has had regard to the applicant’s claim at paragraph 9.k that the Maoists will expect that, on her return from Australia, she will have a lot of money, making her and her young daughter, the third named applicant, potential victims of an extortion attempt; and inflict significant harm on her and her child if she could not pay. The Tribunal considers this to be speculative. It is not satisfied that her fear in this regard constitutes a real chance that the applicants will suffer serious or significant harm on their return to Nepal in the reasonably foreseeable future.

    . . . .

    The Tribunal has also considered the applicant’s claims under the complementary protection provisions of the Act. Having regard to its findings of fact above that it does not accept that the claimed events occurred and, on the basis that the applicant lacks credibility, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that she will suffer significant harm as defined in subsection 36(2A) of the Act. Nor is the Tribunal satisfied that the applicant’s husband or child will suffer significant harm upon their return to Nepal….

14. In their counsel’s written submissions, the applicants submit:

    (a)The Tribunal understood the applicant was making discrete claims relating to the third applicant, her child.[13]

    (b)Paragraph 26 of the Tribunal’s reasons contains a plain error. The third applicant had never been to Nepal; and the Tribunal “did not have regard to any country information but simply dismissed the claim [at] 9k as “speculative””.[14] The Tribunal did not use the word “speculative” to denote a determination of risk being very low.[15]

    (c)In paragraph 22 of its reasons the Tribunal “conflates concepts and shows a complete misunderstanding of the real chance test”.[16] The Tribunal conflated the subjective requirement with the well-founded requirement, and looked at whether the applicant’s subjective fear constitutes a real chance of harm.[17] The Tribunal failed to determine the required assessment of harm.[18]

    (d)The Tribunal’s finding that the claimed harm was “speculative” is conclusory, involving no reasoning process. It cannot mean the Tribunal had actually considered the risk and found it to be so conjectural or negligible or remote that it could be dismissed.[19]

    (e)The claim the Tribunal identified in paragraph 9.k. of its reasons contained two claims, one of which the Tribunal did not consider; and that claim was that having a child makes the applicant more vulnerable to attack from the Maoists and that, if she did not follow the Maoists, they could harm her child.[20]

    [13] Applicants’ Outline of Submissions, [13]

    [14] Applicants’ Outline of Submissions, [16]

    [15] Applicants’ Outline of Submissions, [17], [19]

    [16] Applicants’ Outline of Submissions, [20]

    [17] Applicants’ Outline of Submissions, [21]

    [18] Applicants’ Outline of Submissions, [21]

    [19] Applicants’ Outline of Submissions, [24]

    [20] Applicants’ Outline of Submissions, [28]

15. In his written submissions, the Minister submits as follows:

    (a)The applicant misconstrues the Tribunal’s use of “speculative”. The Tribunal used “speculative” when describing the applicant’s claims it identified in paragraph 9.k. of its reasons, in its ordinary dictionary sense, namely, as being a claim based on conjecture rather than knowledge or fact. More particularly, the Minister submits the Tribunal used “speculative” in a manner analogous to that in which the High Court found the delegate used it in Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[21]^{, [22]}

    (b)The applicant did not claim that having a child increased the applicant’s vulnerability to attack. The applicant’s claim was that the applicant and the third applicant would face a risk of harm in Nepal because there were strikes and protests as not everyone was satisfied with the new constitution, and the Maoists were even attacking children;[23] and the Tribunal considered that claim.[24]

    (c)The Tribunal made no jurisdictional error by dismissing the applicants’ claims based on complementary protection by relying on the findings it had already made, including the finding that the applicant lacked credibility.

    [21] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

    [22] First Respondent’s Outline of Submissions, [26]

    [23] First Respondent’s Outline of Submissions, [31]

    [24] First Respondent’s Outline of Submissions, [32]

    Issues

1. The following are the principal issues that arise on the parties’ competing submissions:

   (a)What claim or claims was or were conveyed by paragraph 9.k. of the Tribunal’s reasons (9k Statement of Claim)?

   (b)Did the Tribunal consider that claim or claims?

   (c)To the extent the Tribunal did consider those claims, did it purport to consider whether the applicant and the third applicant had a well-founded fear of persecution and, if so, did the Tribunal fail to apply a correct understanding of that notion?

2. Before I consider these issues, it would be convenient to identify some principles that are relevant to the determination of the issues, and also to refer to the High Court’s discussion of the potential meanings of “speculative” in Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[25]

   [25] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

   Principles

3. The first set of principles it is convenient to identify relate to the functions of the Tribunal. Under s 414 of the Act the Tribunal must “review” the decision that is the subject of the application before it. That requires the Tribunal to inquire into the existence or non-existence of facts relevant to the Tribunal determining whether to affirm or set aside the decision under review. As noted by the plurality in Minister for Immigration and Citizenship v SZIAI, however, the extent of the Tribunal’s duty to inquire into the existence of facts is qualified:[26]

   [P]roceedings before the Tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word “inquisitorial” has been used to indicate that the Tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor”, that is to say “one whose official duty it is to inquire, examine or investigate”. As applied to the Tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the Tribunal under s 412 of the Act.

   [26] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, at [18] (footnotes omitted). The plurality were speaking of the Refugee Review Tribunal.

4. The nature and extent of the qualification of the duty to inquire has been stated in a number of ways. It has been said that “it is for the applicant for a protection visa to establish the claims that are made”;[27] it is “for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason”, and that the “Tribunal must then decide whether that claim is made out”;[28] the “function of the Tribunal . . . is to respond to the case that the applicant advances”;[29] and the Refugee Review Tribunal “is required to deal with the case raised by the material or evidence before it”.[30]

   [27] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, at [40]

   [28] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, at page 576 (Gummow and Hayne JJ)

   [29] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, at [78] (Kirby J)

   [30] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, at [58]; (Black CJ, French and Selway JJ)

5. The second set of principles relate to identifying the claims the Tribunal is required to consider. These principles are well known, and I need only refer to two authorities. The first is the judgment of the Full Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) where the Court stated the following principles:[31]

   (a)The “function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”; and neither “the delegate nor the Tribunal is obliged to consider claims that have not been made”.[32]

   (b)The Tribunal must “deal with the case raised by the material and evidence before it”,[33] and the “question, ultimately, is whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it”.[34]

   (c)That does not mean, however, the Tribunal “is only required to deal with claims expressly articulated by the applicant”.[35] On the other hand, the Tribunal “is not required to consider a case that is not expressly made or does not arise clearly on the materials before it”.[36]

   [31] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 (Black CJ, French and Selway JJ)

   [32] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, at [60]. The two quoted passages are respectively from the reasons for judgment of Kirby J in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 quoted by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364, at [17] and the reasons for judgment of von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 also quoted by Selway J in SGBB, at [16]

   [33] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, at [60] quoting Selway J in SGBB, at [17]

   [34] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, at [60] quoting Selway J in SGBB, at [18]

   [35] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, at [60]

   [36] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, at [61]

6. The second authority is NAVK v Minister for Immigration and Multicultural and Indigenous Affairs where Allsop J (as his Honour then was) explained when it could be said a claim not expressly made may nevertheless be considered to have been raised:[37]

   From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

   [37] NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695, at [15]

7. Next, there is the discussion in Wu Shan Liang of the meanings of “speculative”. In that case delegates of the Minister refused to grant a protection visa for reasons that included an assessment that a number of matters on which the visa applicant relied were “speculative”. The Full Federal Court held that the delegates’ use of “speculative” manifested a misunderstanding of the “real chance test” as explained by the High Court in Chan v Minister for Immigration and Ethnic Affairs.[38] The High Court disagreed. The plurality said:[39]

   The use by the delegates of the phrase “I consider it speculative ... to suggest that [the respondents] would be treated more harshly than in the known relevant cases” was taken by the Full Court to indicate that the Chan test miscarried. This conclusion was reached by, first, characterising the phrase in a particular way and, then, demonstrating that the phrase so characterised indicated an approach inconsistent with the Chan test. The Full Court found that the phrase “seems to suggest that speculation ought not be engaged in”. It interpreted “speculation” as used by the delegates to encompass prediction of the future. From this it followed that the Chan test must have miscarried because it is clear that the test in Chan necessitates speculation in the sense of prediction, in other words, an assessment of the future. That is implicit in the formulation “real chance”.

   If the Full Court was right in its characterisation of the delegates' reasons, then that would certainly demonstrate an incorrect approach. However, with respect, the Full Court was in error when it so characterised the delegates' reasons. The word “speculative” in the context in which it appears need not amount to a denial of the delegates' function of assessment of future chances of persecution. Rather, the word might equally have been used to refer to the probative force of the material before the delegate. An example of such a use of the word “speculative” is provided in a judgment by a majority of this Court in Malec v J C Hutton Pty Ltd. In the context of discussing the assessment of damages for future events, Deane, Gaudron and McHugh JJ said:

   “The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages.”

   This sense of the word is consistent with the context in which it appears in the delegates' reasons. In considering “what might happen” to the respondents “if” returned to the PRC, the delegates held that submissions in relation to PRC law and the administrative measures which “could” be taken did no more than raise a remote chance that the respondents “would be treated more harshly than in the known relevant cases”. There is nothing here to suggest that the delegates abandoned the process of looking to the future which is the essence of the Chan test. There is certainly nothing which would suggest such a conclusion in sufficiently strong terms to overcome a properly “beneficial construction” of the delegates' reasons.

   [38] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

   [39] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at pages 277-278 (footnotes omitted)

   Claim(s) conveyed by the 9k Statement of Claim

8. The applicants accept the 9k Statement of Claim is a correct statement of the claims the applicants made on the matters covered by the 9k Statement of Claim. The 9k Statement of Claim records the applicant claimed she could not go back to Nepal because:

   (a)the applicant now had a small child; and

   (b)there was a critical situation in Nepal, with strikes and protests, because not everyone was satisfied with the new constitution; and

   (c)the Maoists were even attacking children; and

   (d)if the applicant did not follow the Maoists, they could harm her child; and

   (e)having been in Australia, the Maoists would expect the applicant would have a lot of money; the Maoists would expect her to make donations; and the Maoists would inflict significant harm on the applicant and her child if the applicant could not pay for donations.

9. This parsing of the 9k Statement of Claim suggests, as the applicants submit, that the applicant made two claims, one based on the applicant’s fear of harm to her and to the third applicant based on the Maoists perceiving the applicant to have money and making demands for the payment of donations; and the other a claim of harm to the third applicant alone if the applicant “did not follow the Maoists”. Whether that is so, however, turns on construing the 9k Statement of Claim as a whole, and in the context of the other claims the applicant made.

10. The harm the 9k Statement of Claim claims the third applicant (as opposed to the applicant and the third applicant) is at risk of suffering is harm that would flow if the applicant “did not follow the Maoists”. This refers to the applicant’s not doing a certain act or set of acts, being acts the Maoists would require the applicant to do (required acts). The only required acts, however, the 9k Statement of Claim identifies is the applicant’s not paying the Maoists donations the applicant claimed she feared the Maoists would demand because they would perceive her to have money. This suggests that the only harm the 9k Statement of Claim claimed the third applicant would be at risk of suffering is the harm that would arise from the applicant’s inability or unwillingness to pay donations the Maoists would demand the applicant pay. This, in turn, might suggest that the 9k Statement of Claim makes only one claim, namely, a claim that the applicant and third applicant will be harmed because of the applicant’s inability or unwillingness to pay donations the Maoists would demand the applicant pay.

11. This construction of the 9k Statement of Claim is based solely on paragraph 9k of the Tribunal’s reasons. If the claims the applicant made are viewed in their entirety, however, another set of required acts appear; and that is the required acts the applicant identified in her written claims. The applicant there claimed she feared that if she returns to Nepal she will “go back in full of humiliation and mental torture”, and “[t]hey will ask me to join the party which is not possible for me and against my will”.[40] The Tribunal referred to that claim in its reasons.[41] Thus, the reference in the 9k Statement of Claim to the harm the applicant claimed would occur to the third applicant if the applicant “did not follow the Maoists” could reasonably be construed as a reference to harm that would occur to the third applicant if the applicant would not comply with what she had claimed in her written claims she feared the Maoists would demand of her if she returned to Nepal, namely, to join the Maoists.  In other words, that which, if the applicant “did not follow the Maoists”, the applicant claimed would lead to the Maoists harming the third applicant, is the applicant’s refusing to comply with the Maoists’ demand that she join the Maoists.

    [40] CB46

    [41] CB141, [7.g.]

12. The 9k Statement of Claim, therefore, either conveyed a single claim that the applicant and the third applicant feared harm because the applicant would be unwilling or unable to pay donations the Maoists would demand the applicant pay, or the 9k Statement of Claim conveyed  this and an additional claim, that additional claim being the Maoists will harm the third applicant because the applicant would be unwilling to comply with the demands the applicant feared the Maoists would make of her if she returns to Nepal that she join the Maoists.

    Did the Tribunal consider the claim(s) conveyed by the 9k Statement of Claim?

13. If the 9k Statement of Claim is construed as making one claim, the Tribunal considered that claim in paragraphs 22 and 26 of its reasons. If, on the other hand, the 9k Statement of Claim is construed as making an additional claim of fear of harm to the third applicant alone based on the applicant’s unwillingness to comply with the demands the applicant feared the Maoists would make of her if she returns to Nepal that she join the Maoists, the Tribunal did not in terms consider any such claim. The Tribunal did, however, consider a necessary element of that claim, that element being that the applicant feared that if she were to return to Nepal the Maoists would ask her to join them. The Tribunal rejected that claim:[42]

    It follows that the Tribunal is not satisfied that, if she returns to Nepal, the applicant will face serious harm, from the Maoists or the Army because she left her village against the Maoists' wishes and did not carry out their demands in Kathmandu; nor that the Maoists will forcibly recruit her into their party, making her life full of humiliation and mental torture amounting to serious or significant harm.

    [42] CB145, [21]

14. Given the Tribunal rejected the applicant’s claim she feared harm to herself because the Maoists would on her return to Nepal require her to join them, it follows that the Tribunal would also have necessarily rejected a claim of risk of harm to the third applicant based on the applicant’s claim that on her return to Nepal the Maoists would demand she join them. This conclusion may be characterised in two ways. One is that by rejecting a necessary element of the second of the two claims made in the 9k Statement of Claim the Tribunal necessarily rejected the second of the two claims. Another characterisation is that the Tribunal failed to consider the second of the two claims, but its failure to do so cannot have been material because it rejected an essential element of that claim, and therefore the Tribunal could not have made a different decision had it considered the second of the two claims.

    Misapply the real chance test?

15. The question is whether the Tribunal used “speculative” to mean predicting the future so that, in rejecting the claim it identified in paragraph 22 of its reasons because the claims were “speculative”, the Tribunal did so because the determination of that claim would require the Tribunal to predict the future. That question must be answered in the negative.

16. There was only one class of evidence that, if accepted, could rationally have supported the claim the Tribunal identified in paragraph 22 of its reasons, and that evidence was the applicant’s evidence of her dealings with the Maoists. The Tribunal, however, rejected the applicant’s evidence on the ground that she was not a credible witness. The applicants have not identified any other evidence that was before the Tribunal that could rationally have supported the claims the Tribunal identified in paragraph 22 of its reasons. In those circumstances, the only reasonable inference that can be drawn from the Tribunal’s use of “speculative” is that it used the word to convey the Tribunal’s assessment that there was an absence of any probative evidence that could rationally support the claims the Tribunal identified in paragraph 22 of its reasons.

17. It is true, as the applicants submit, that in concluding the applicant’s claim was speculative the Tribunal did not have regard to any country information. That by itself does not manifest any jurisdictional error by the Tribunal. It was for the applicant to provide to the Tribunal or point to country information that could reasonably support a finding that persons who did not follow the Maoists faced the risk of harm to themselves and to their children. The applicants do not submit there was any such country information before the Tribunal.

18. Finally, in paragraph (b) of the particulars to ground 4 of the amended application, the applicants claim the Tribunal failed to provide any reasoning process or active intellectual consideration of its dismissal of the claims made in the 9k Statement of Claim as “speculative”. I disagree. As I have already noted, there was only one class of evidence before the Tribunal which, if accepted, could rationally have supported the claims made in the 9k Statement of Claim, namely, the evidence of the applicant. The Tribunal engaged with that evidence and found it was not credible. That means there was no other evidence before the Tribunal that could reasonably support the 9k Statement of Claim. The Tribunal expressed that conclusion by stating the claims conveyed by the 9k Statement of Claim were “speculative”.

    Other matters

1. It would be appropriate to consider matters raised in the grounds which I have not addressed in determining the three issues I identified, or which I have addressed, but not specifically by reference to the grounds stated in the amended application.

   Ground 1

2. Ground 1 is directed to the Tribunal’s finding that the applicant applied for the Protection visa in an effort to secure the third applicant’s future, and to achieve a migration outcome for her family. The ground claims the Tribunal relied on this conclusion to draw a negative inference. This mischaracterises the Tribunal’s reasons. The Tribunal did not rely on its finding that the applicant applied for the Protection visa in an effort to secure the third applicant’s future, and to achieve a migration outcome for her family to draw negative inferences; rather, the finding was the conclusion the Tribunal arrived at after it considered and rejected the applicant’s claims and evidence for reasons that did not rely on any finding that the applicant desired to secure the third applicant’s future, or to achieve a migration outcome for her family.

3. Ground 1, therefore, fails.

   Ground 3

4. Ground 3 claims the Tribunal did not, when assessing the applicants’ claims against the complementary protection criterion provided for by s 36(2)(aa) of the Act, consider the harm the third applicant will face if the applicants return to Nepal.

5. The claim or claims of harm to the third applicant are described in the 9k Statement of Claim. I have found that the 9k Statement of Claim can be construed as identifying one or two claims of the risk of harm to the third applicant if the applicants return to Nepal. To the extent the 9k Statement of Claim is construed as conveying one claim of harm to the third applicant, it is a claim based on the applicant’s inability or unwillingness to meet the demands for donations the Maoists are likely to make of the applicant on her return to Nepal. To the extent the 9k Statement of Claim is construed as conveying two claims, those claims are the claims based on the unwillingness or inability of the applicant to meet the Maoists’ demands for donations, and the claim based on the applicant’s unwillingness or inability to meet the Maoists demands that she join their party. To the extent the 9k Statement of Claim claims one ground, the Tribunal addressed and determined that ground in paragraph 22 of its reasons. To the extent the 9k Statement of Claim makes two claims, the Tribunal addressed and determined the first of the two claims in paragraph 22 of its reasons; and in paragraph 21 of its reasons the Tribunal addressed and determined an essential element of the second of the two claims by rejecting the applicant’s evidence about her dealings with the Maoists.

6. The Tribunal assessed the applicants’ claims against the complementary protection criterion in paragraph 26 of its reasons. The Tribunal did so by relying on the “findings of fact above”, including the Tribunal’s finding that the “applicant lacks credibility”. Thus, in assessing the applicants’ claims against the complementary protection criterion, the Tribunal considered relevant all the evidence it considered as being relevant to its assessment of the applicant’s claims against the refugee criterion provided for by s 36(2)(a) of the Act, and it adopted the findings it made in the assessment of the refugee criteria for the purpose of assessing the applicants’ claims against the complementary protection criterion. The applicants do not claim there was evidence or claims before the Tribunal that were relevant to the complementary protection criterion, but not the refugee criterion; and there is nothing to suggest any such claims or evidence were before the Tribunal. When assessing the applicant’s claims against the complementary protection criterion, therefore, the Tribunal did take into account the claims the applicant made about the risk of harm the third applicant would face if the applicants were to return to Nepal.

   Ground 4

7. This ground claims the Tribunal failed to consider the claim or claims made in the 9k Statement of Claim; the Tribunal failed to provide any reasoning process or active intellectual consideration of its dismissal of those claims as “speculative”; and the Tribunal’s use of “speculative” manifests an incorrect understanding by the Tribunal of the real chance test.

8. I have considered each of these claims, and, for reasons I have already given, they fail. Ground 4, therefore, also fails.

   Ground 5

9. This ground claims the Tribunal made a jurisdictional error by dismissing all claims concerning complementary protection on the basis of the applicant’s lack of credibility.

10. It may be accepted that the Tribunal rejected the applicants’ claims for complementary protection because it found the applicant lacked credibility. That by itself is no basis for finding the Tribunal made any jurisdictional error. The applicants do not claim the Tribunal made a jurisdictional error in finding the applicant lacked credibility; and the applicants have not identified, and do not contend there was, material that was before the Tribunal, that could reasonably have supported their claims for complementary protection that did not depend on the Tribunal accepting the applicant as a witness of credit.

11. Ground 5, therefore, also fails.

    DISPOSITION AND COSTS

12. I propose to order that the application be dismissed.

13. The parties accepted that costs should follow the event. The Minister claimed costs in the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). Those rules have been superseded by the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (Cth) (GFL Rules). I propose to order, therefore that the first and second applicant pay the Minister’s costs in the amount of $7,853, being the amount provided for in Part 2 of Schedule 2 to the GFL Rules.

14. I will also note that the orders I propose to make are orders of the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the orders I propose to make only includes the words “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth), however, does not constitute any court by the name of the “Federal Circuit and Family Court of Australia”.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       29 October 2021