DCL17 v Minister for Immigration and Border Protection
[2018] FCA 1361
•6 September 2018
FEDERAL COURT OF AUSTRALIA
DCL17 v Minister for Immigration and Border Protection [2018] FCA 1361
Appeal from: DCL17 v Minister for Immigration [2018] FCCA 441 File number: NSD 358 of 2018 Judge: MARKOVIC J Date of judgment: 6 September 2018 Catchwords: MIGRATION – appeal from orders of the Federal Circuit Court of Australia dismissing the appellant’s application for judicial review – where Immigration Assessment Authority (Authority) affirmed the decision of a delegate not to grant a protection visa – whether the Authority misapplied the test in s 5J(3) of the Migration Act 1958 (Cth) (Act), misapplied the real chance test in s 5J(1)(b) of the Act and/or failed to consider an integer of the appellant’s claim – whether the primary judge erred in dismissing these grounds of review – appeal dismissed. Legislation: Migration Act 1958 (Cth) ss 5H, 5J Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Date of hearing: 27 August 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 63 Counsel for the Appellant: Mr B Zipser Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: MinterEllison Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 358 of 2018 BETWEEN: DCL17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
6 SEPTEMBER
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J
This is an appeal from orders of the Federal Circuit Court of Australia (Federal Circuit Court) made on 26 February 2018 dismissing an application for judicial review of a decision of the Immigration Assessment Authority (Authority): DCL17 v Minister for Immigration [2018] FCCA 441 (DCL17). The Authority had affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the appellant a Temporary Protection (Subclass 785) visa (Visa).
BACKGROUND
The following background, which was not in contention between the parties, is principally taken from the appellant’s submissions.
The appellant is a citizen of Iraq and a Shia Muslim. On or about 23 March 2013 he arrived in Australian waters by boat as an unauthorised maritime arrival. On 13 May 2013 the appellant participated in an entry interview (Entry Interview).
In April 2016 the Minister sent a letter to the appellant notifying him that the bar under s 46A of the Migration Act 1958 (Cth) (Act), which prevented the appellant from lodging a protection visa application, had been lifted. Accordingly, on 7 June 2016 the appellant lodged his application for the Visa.
On 13 March 2017 a delegate of the Minister refused to grant the Visa to the appellant.
By letter dated 16 March 2017 the Authority informed the appellant that the Minister’s decision to refuse the appellant the Visa had been referred to it for review. On 13 June 2017 the Authority affirmed the delegate’s decision not to grant the appellant the Visa.
THE AUTHORITY’S DECISION
The Authority set out the appellant’s background and claims for protection at [4]-[5] of its decision. Relevantly, at [4] it noted that from 2008 the appellant had worked for a photo shop where he managed the lab, undertook digital printing, took photos for weddings and similar occasions and filmed conferences. The Authority also noted that from 2012 the appellant had also worked for a local newspaper on a casual basis as a photographer. The Authority summarised the appellant’s claims at [5] including that:
…
ŸIn January 2013 the [appellant] went to Ramadi to take photographs of the Sunni uprising / protests. He had been hired to do so by Sarmad, the proprietor of the Al Wasat newspaper. The [appellant] had frequently been hired to take photos of various protests and demonstrations in Nasiriyah. He travelled to Baghdad and then to Ramadi with two friends. He returned to Nasiriyah the following day, arriving around 9pm;
ŸWhile trying to find a taxi, a car with no number plates pulled up next to him and the occupants told him to get in. They took his camera and laptop bags, they inspected the photos he took in Ramadi and asked where he had come from. When he responded that he had been in Ramadi the men asked why had he been there as it was a Sunni area and the protests were against the government. He explained that he was just a photographer and had nothing to do with the sectarian divide between Sunni and Shia. The men told him that if they saw him having anything to do with protests in the future he would be killed. They knew where he lived and worked and would know how to take action against him. They said that they would bring his belongings back to him at work but they never did;
…
The Authority accepted that the appellant is a Shia Muslim from Nasiriyah who departed Iraq on 20 February 2013; from 2008 until his departure he worked in a photo shop and from 2012 he also worked as a casual photographer for a local newspaper; from 1 March 2008 he was a member of the Iraq Society for Photography and from 10 October 2012 he was a member of the Union of Arab Photographers; in 2010 the photo shop received a letter containing two bullets from an unknown source demanding the removal of certain photos and posters from the shop, which was done; there were no adverse consequences to the appellant as a result of this event; and subsequently, the appellant was contracted by the local newspaper to attend a protest at Ramadi and take photographs, which he did. The Authority noted that, upon the appellant’s return to Nasiriyah after attending the protest, he was accosted in the street by a group of men in an unregistered vehicle who questioned him about the protest, threatened him with harm should he attend and photograph protests in the future and retained his camera and laptop.
At [8] of its decision the Authority noted that a central contention of the appellant was that the men in the vehicle who accosted him knew him. Because of its prominence in the grounds of appeal it is convenient to set that paragraph out in full:
A central contention of the applicant is that the men in the vehicle knew him. I do not accept that this is the case. From his evidence regarding their questions they did not know where he had been or what he was doing there until he told them. I consider that the men’s comments along the lines of “we know where you live and where you work” were made to increase his fear and give weight to their threats that if they saw him again at protests they would kill him. I consider that the applicant was a random target of a militia gang at that time. Although I accept that his life was in danger during the event, I do not consider that he was in any way targeted due to his attendance at the Ramadi demonstration.
After considering further aspects of the appellant’s claims the Authority concluded that, after the events of 3 January 2013, he was not of interest to any militia groups.
The Authority then considered each of the appellant’s claims in order to assess whether he had a well-founded fear of persecution.
First, it concluded that it was not satisfied that there was a real chance that the appellant would be harmed in the foreseeable future should he return to Iraq due to his employment in the photo shop.
Secondly, it considered the appellant’s central claim, namely that he was targeted by militia after attending the protest in Ramadi on 3 January 2013. In that regard the Authority accepted that on that day the appellant was accosted by a car full of men, who were likely militia, was threatened and had his camera and laptop taken. However, the Authority did not accept that the appellant was specifically targeted by these men or that they knew who he was or where he lived or worked prior to speaking with him. The Authority noted that the appellant continued to live and work at his usual home and workplace for the next six weeks or so until he departed Iraq without any further contact from the militia group or adverse attention. The Authority concluded that, had the militia wished to question the appellant further or do him harm, they had adequate opportunity to do so.
The Authority did not accept that the photo shop or newspaper were raided by militia seeking him after his departure from Iraq as the appellant claimed. The Authority therefore concluded that the appellant did not have a real chance of being harmed on the basis that he is of interest to any militia groups.
Thirdly, the Authority considered a contention made by the appellant’s representative at his interview with the delegate that the appellant was regularly contracted to take photos of rallies and demonstrations making him a journalist. The Authority noted that the appellant contended that he had a strong belief in photography and in the freedom to report relevant issues such that modification of his behaviour, by ceasing to undertake such work, would conflict with a characteristic that is fundamental to his identity or conscience or alter or conceal his true political beliefs.
The Authority was satisfied that the type of images that the appellant provided to the local newspaper constituted photojournalism and noted that country information indicated that journalists covering protests by Sunnis in 2013 consistently reported harassment by security forces, including temporary detainment and the banning of cameras. In light of the appellant’s concerns following the threats and theft of his camera and laptop in January 2013, the Authority was satisfied that, because of a fear of serious harm, he would not return to work as a photojournalist and that such a fear is well-founded.
The Authority then went on to consider s 5J of the Act and whether the appellant could take reasonable steps to modify his behaviour. In doing so, the Authority said at [16] of its decision:
Section 5J of the Act provides that the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification. The [appellant] did undertake some work as a photojournalist for the [local] newspaper. In his statutory declaration of May 2016 the applicant notes that the proprietor offered him a contract because he liked the applicant’s work and the applicant had the necessary accreditation. From the ID documents provided it can be seen that the [appellant] was a member of the Union of Arab Photographers from 10 October 2012. It appears his employment as a photojournalist was for a period of only three or four months and on a casual basis. In addition to this work the [appellant] worked for some five years in a photo shop, managing the lab, printing and taking wedding and event photos. I am not satisfied that modifying his behaviour by not working as a photojournalist would conflict with a characteristic that is fundamental to the [appellant’s] identity or conscience; would conceal an innate or immutable characteristic of himself, or would constitute any other modification contemplated by s.5J(3)(c). I am also satisfied, in these circumstances that he can take reasonable steps to avoid persecution by not working as a photojournalist. In accordance with s.5J(3), he therefore does not have a well-founded fear of persecution on this basis.
Fourthly, despite the appellant not claiming a fear of harm on the basis that he is a Shia Muslim, the Authority considered whether that would in any event give rise to protection obligations. It concluded that there was not a real chance that the appellant would be harmed if he returned to Nasiriyah province now or in the reasonably foreseeable future for that reason.
Finally, the Authority considered whether the appellant was at real risk of suffering harm from generalised violence and again concluded that it was not satisfied he was.
The Authority found that the appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and therefore did not meet the requirements of s 36(2)(a) of the Act.
The Authority then went on to make a complementary protection assessment. It concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that he would suffer significant harm. Accordingly, it found that the appellant did not meet s 36(2)(aa) of the Act.
THE PROCEEDING IN THE FEDERAL CIRCUIT COURT
On 11 July 2017 the appellant applied to the Federal Circuit Court for the judicial review of the Authority’s decision. In his amended application filed on 28 February 2018, the appellant abandoned his first ground of review and raised the following three grounds:
2. The IAA misapplied the test in s 5J(3) of the Act.
Particulars
a.The IAA accepted that the applicant had a well-founded fear that he would face serious harm if he returned to work as a journalist: [15].
b.That IAA found that the applicant would not return to work as a result of that fear.
c.The IAA found that the applicant did not have a well-founded fear of persecution, within the meaning of s 5J of the Act, because it was "not satisfied" that the applicant's modifying his behaviour by not working as a photojournalist would conflict with a characteristic that is fundamental to the applicant's identity or conscience; would conceal an innate or immutable characteristic of himself; or would constitute any other modification contemplated by s 5J(3)(c) of the Act: at [16].
d.On the proper construction of s 5J(3) of the Act, the IAA needed to be positively satisfied that the modificatory behaviour proposed did not fall within one of the paragraphs of s 5J(3) of the Act.
3. The IAA misapplied the "real chance" test in s 5J(l)(b) of the Act.
a.The IAA made factual findings that it was not satisfied that persons who adducted the applicant knew who he was, and that it was not satisfied that if the photo shop where he worked was raided, that the raid was connected with the applicant 's activities: at [8].
b.The findings were made on the balance of probabilities, or alternatively were not findings made with any doubt.
c.In the premises, the IAA was required to (but did not) consider the applicant's claims on the hypothesis that it was or might be wrong about the findings identified in particular a.
4.The IAA made a jurisdictional error because it failed to consider an integer of the applicant's claim, or alternatively important corroborative evidence.
Particulars
In considering the applicant's claim that the militants who apprehended him knew who he was, the IAA overlooked and failed to consider the applicant ' s claim and evidence that the militia members state that they knew his work and home addresses and identified those addresses to him: "they said the full address of both places" at CB 23.
(Strike out and underlining omitted)
The primary judge rejected each of the appellant’s grounds.
In relation to ground two, the primary judge found that the authority’s reasons reflected a correct identification of s 5J(3) of the Act and findings of fact which were open to it for the reasons given by it: DCL17 at [31].
In relation to ground three, the primary judge found that the Authority’s reasons did not reflect any doubt and that there was no requirement for it to consider the alternative, namely what if it was wrong. The primary judge found that on a fair reading of the Authority’s reasons, it had correctly applied the real chance test: DCL17 at [33].
In relation to ground four, the primary judge did not accept that the Authority failed to take into account the appellant’s statement in his Entry Interview and found that, as the appellant had given different versions of the relevant event, the Authority rejected, as a finding of credit, the appellant’s version. The primary judge noted that the Authority did not have to refer to every piece of evidence and that it was aware of and took into account the different versions of events recounted by the appellant. Accordingly, the primary judge was not satisfied that the Tribunal failed to consider an integer of the appellant’s claims in relation to the Entry Interview or that it failed to take into account important corroborative evidence. The primary judge found that the Authority’s adverse finding was open to it for the reasons given by it and could not be said to “lack an evident and intelligible justification in respect of the finding”. The primary judge also found that the Authority’s reasoning reflected the substance, and a correct understanding by it, of the appellant’s claim: DCL17 at [36]-[39].
THE APPEAL
By notice of appeal filed on 13 March 2018 the appellant raises three grounds as follows:
1.The appellant contended in the Federal Circuit Court that the Immigration Assessment Authority (“the IAA”), in a finding in paragraph 16 of its decision, misapplied the test in s 5J(3) of the Migration Act 1958 (Cth) (“the Act”) in a manner which constituted jurisdictional error. The Federal Circuit Court erred in dismissing this ground of review.
2.The appellant contended in the Federal Circuit Court that the IAA misapplied the real chance test in s 5J(1)(b) of the Act by not considering the appellant's claims on the hypothesis that a finding in paragraph 8 of its decision might be wrong. The Federal Circuit Court erred in dismissing this ground of review.
3.The appellant contended in the Federal Circuit Court that the IAA failed to consider an integer of the appellant's claim or alternatively important corroborative evidence, being the appellant's claim and evidence that the militia members stated that they knew his work and home address and identified those addresses to him. The Federal Circuit Court erred in dismissing this ground of review.
I consider each of those grounds in turn below.
Ground one
By ground one the appellant alleges that the Authority misapplied the test in s 5J(3) of the Act.
Legislative framework
In order to consider this ground it is of assistance to set out the relevant legislative provisions.
Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
Sections 5H and 5J of the Act relevantly provide:
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
…
5J Meaning of well‑founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
...
(3)A person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
Consideration
The appellant submitted that, on a proper construction of s 5J(3) of the Act, in order to find that a person does not have a well-founded fear of persecution, a decision maker must be positively satisfied that the modificatory behaviour does not fall within s 5J(3)(a),(b) or (c). The appellant illustrated his proposed construction by noting that, for example, the decision maker must be positively satisfied that the modificatory behaviour was not:
(a)a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)a modification that would require the person to alter his or her political beliefs or conceal his or her true political beliefs.
The appellant contended that the following matters supported his construction of s 5J(3):
(1)first, s 5J(1) contains the general rule that, if the decision maker is satisfied of the matters in subparas (3)(a) to (c) then, subject to the exceptions in subs (2) and subs (3), the decision maker must conclude that the person has a well-founded fear of persecution;
(2)secondly, subs (2) and subs (3) contain exceptions to the general rule in subs (1). They require the decision maker to find that “a person does not have a well-founded fear of persecution” if, and only if, the decision maker is positively satisfied of matters referred to in the balance of subs (2) and subs (3); and
(3)thirdly, subs (3), in turn, contains a general rule and exceptions. The general rule being that “the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country”.
The appellant submitted that, on a proper construction of s 5J(3), the decision maker must decide whether or not the modification is one that falls within subparas (a) to (c) and that it is insufficient if the decision maker is merely “not satisfied” that the modification would fall within those subparagraphs. The appellant further submitted that, if that is so, it follows that the Authority fell into jurisdictional error in its finding that it was “not satisfied that modifying his behaviour by not working as a photojournalist” would fall within one of the subparas (a) to (c).
The appellant contended that, in dealing with this matter at [31] of his reasons, the primary judge did not address the issue of statutory construction that was raised.
The Authority made its findings in relation to the application of s 5J(3) of the Act at [16] of its reasons (see [17] above). It is of assistance to extract its conclusion where it said that:
… I am not satisfied that modifying his behaviour by not working as a photojournalist would conflict with a characteristic that is fundamental to the [appellant’s] identity or conscience; would conceal an innate or immutable characteristic of himself, or would constitute any other modification contemplated by s.5J(3)(c). I am also satisfied, in these circumstances that he can take reasonable steps to avoid persecution by not working as a photojournalist. In accordance with s 5J(3), he therefore does not have a well-founded fear of persecution on this basis.
That is, the Authority relevantly found, as the appellant contended it was required to, that it was satisfied that the appellant could modify his behaviour so as to avoid persecution in a receiving country, which in this case is Iraq. The relevant modification to the appellant’s behaviour was that he would not work as a photojournalist. The Authority reached that state of satisfaction having considered the matters set out at s 5J(3)(a) to (c). That the Authority expressed its conclusion in the negative does not, in my opinion, mean that it was not in fact satisfied in the positive way that the appellant contended it must be. The appellant’s contention is, to adopt the Minister’s description, a “quibble” with the expression adopted by the Authority.
Contrary to the appellant’s submission, it is not apparent that the Authority misapplied the test in s 5J(3) of the Act. Having regard to the Authority’s finding, there is no relevant difference between the expression of the finding it made that it was not satisfied that the modificatory behaviour would conflict with a characteristic that is fundamental to the appellant’s identity or conscience, conceal an innate or immutable characteristic of himself, or constitute any other modification contemplated by s 5J(3)(c) and the expression urged by the appellant that it was satisfied that the modificatory behaviour would not conflict with a characteristic that is fundamental to the appellant’s identity or conscience, conceal an innate or immutable characteristic of himself, or constitute any other modification contemplated by s 5J(3)(c).
Ground one is not made out.
Ground two
By ground two the appellant contends that the primary judge erred in dismissing ground three of the amended application that was before that court. By that ground the appellant contended that the Authority misapplied the real chance test in s 5J(1)(b) of the Act because it did not consider his claims on the hypothesis that the finding at [8] of the Authority’s decision (set out at [9] above) might be wrong.
In support of this ground the appellant submitted that an important issue before the Authority was whether or not the men in the vehicle who accosted the appellant knew him. The appellant further submitted that the Authority’s finding at [8] of its decision indicated that the Authority made its finding on the balance of probabilities and had some doubts about it. The appellant said that those doubts were exemplified by the Authority’s finding where, for example, it said “I do not accept that this is the case”. The appellant contended that such a finding was weaker than simply stating “I find this is not the case”. The appellant submitted that the remaining language used by the Authority involved findings on the balance of probabilities.
While the appellant accepted that the Authority did not expressly say that it had any doubt or uncertainty in relation to the finding, he suggested that the evidence underpinning the Authority’s finding at [8] was equivocal. He contended that, on the one hand, the Authority said that if the people in the car were asking the appellant questions, that suggests that they did not know him but, on the other hand, the Authority referred to the men’s comments to the effect that “we know where you live and where you work”. The appellant contended that, in the context of that equivocal evidence, the Authority made a finding on the balance of probabilities.
The Appellant relies on Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (Rajalingam) at [60], [62]-[63] and [67] in support of his submission that in this case a “fair reading of the [Authority’s] reasons allows the conclusion that the [Authority] had a real doubt that its findings on material questions of fact were correct”. The appellant further submitted that this was particularly so in light of the language used by the Authority at [8] of its decision and that, in the circumstances, the Authority was obliged to take into account the possibility that the men in the vehicle knew the appellant. The appellant contended that the issue raised by this ground requires a finding of fact by the Court as to whether or not the Authority’s reasons reflect doubt and that the primary judge made a wrong finding of fact.
In Rajalingam at [60], [62]-[63] and [67] Sackville J (with whom North J agreed at [129]) said:
60It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a “real substantial basis” for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.
...
62In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
63Although the “What if I am wrong?” terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a “well-founded fear of being persecuted” for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.
…
67In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the RRT's reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
As identified in Rajalingam the Authority would only need to consider whether its findings at [8] of its decision were wrong if it had “a real doubt that its finding on material questions of fact were correct”. However, as was found to be the case in Rajalingam at [68], there is nothing in the Authority’s reasons that suggests it had any real doubt as to its findings of fact. A fair reading of the reasons as a whole shows that the authority had “no real doubt”.
The finding that the Authority did not accept that the men in the vehicle knew him does not, in my opinion, suggest that the Authority was in any real doubt about the matter. Contrary to the appellant’s submission, there is no relevant difference between the finding made by the Authority in that regard and by contrast, a finding in the terms suggested by the appellant that the Authority would, for example, “find that this is not the case”.
As the appellant accepted in oral submissions the Authority did not express any doubt about its finding about whether the men in the vehicle knew him. The Authority identified that one of the appellant’s central contentions was that the men in the car knew him. It then made its finding that it did not accept that to be the case and explained that finding by reference to the evidence. The evidence relied on and referred to at [8] is not equivocal. The Authority explained what it considered to be the effect of the questions that were asked by the men and why they made the comments they did.
It follows that, in my opinion, the primary judge did not err in his treatment of ground three before him. Accordingly, ground two of the appeal should be dismissed.
Ground three
By ground three the appellant contends that the primary judge erred in failing to find that the Authority failed to deal with an integer of his claim or alternatively important corroborative evidence, namely that the men in the car who accosted him knew his home and work addresses.
The appellant relies on the following claims made at the Entry Interview and in his statutory declaration accompanying his Visa application (Statutory Declaration):
(1)in the Entry Interview record in response to the question “[w]hy did you leave your country of nationality (country of residence)?” the appellant relevantly answered:
…
They said we know you, we know where you work and where you live and they said the full address of both places and they said to me if you ever go to protest against the government and took photos, we will make you disappear from the face of the Earth and said leave you (sic) camera and your bag, we know where are you, so get down from the car. So I went down from the car and went home.
…
(2)the Statutory Declaration includes at [7] (as written):
… they mentioned my work and my family as a sign that they know me ,then they said to me : you shia why you go to these Sunni areas ? I replied that it was just my work and i have nothing to do with sectarianism between shia and Sunni’s , they then said that they know where I live and work , they said that they will kill me if they see me again doing this job , i did not know who these people were , it shocked me that they knew me very well while i don’t know them at all…
The appellant submitted that his evidence in his Statutory Declaration was not inconsistent with his claims in his Entry Interview. He submitted that on both occasions he gave evidence that the men told him personal information such that it was clear to him that they knew him before they accosted him.
The appellant further submitted that an integer of his claims in the Entry Interview was that the militia members who accosted him in the car stated that they knew his work and home addresses and identified those addresses to him. He contended that the Authority did not address and deal with this integer of his claim and did not refer to his evidence in the Entry Interview set out at [51(1)] above that “they said the full address of both places”.
The appellant submitted that the Authority’s failure to make a finding concerning this aspect of his claims involved jurisdictional error and that the primary judge erred because he made a wrong finding of fact as to whether or not the Authority in fact dealt with this integer of his claims.
The issue to be addressed here is whether there was a failure to consider the claim that the men in the vehicle knew the appellant’s home and work addresses. A failure by a decision maker, in this case, the Authority, to make a finding on “a substantial, clearly articulated claim relying upon established facts” may amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: see NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) at [55] citing Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24].
In NABE at [57]-[58] the Full Court also said:
57The nature of the review function was described by Allsop J (with whom Spender J agreed) in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]:
The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration … It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act … make it clear that the tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant.
58The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
Also relevant to a resolution of this ground are the observations of a Full Court of this Court (French, Sackville and Hely JJ) in ApplicantWAEE v Minister for Immigrationand Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47] that:
46It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
An analysis of the Authority’s decision reveals that the Authority did not in terms refer to the statement in the Entry Interview that the men knew the appellant’s home and work addresses. But, in its description of the appellant’s claims for protection and, in particular the claim concerning the men in the vehicle set out at [7] above, the Authority includes that “[t]hey knew where he lived and worked and would know how to take action against him”.
At [8] of its decision the Authority then referred to a central contention of the appellant’s claim being that “the men in the vehicle knew him”. In addressing that contention the Authority refers to the appellant’s “evidence regarding their questions”. As the Minister submitted, that can only be understood as a reference to the appellant’s evidence before the delegate. Relevantly, in his decision, the delegate recorded that:
…
The [appellant] states that the men in the car knew his name and details. However, in the [Protection Visa] interview the [appellant] states that they asked him where he had been, why he went there and was he a Shia or Sunni Muslim. I consider that if the militiamen knew the [appellant’s] identity details as claimed by the [appellant], then it is not likely that he would have been questioned as such.
…
One would readily infer that the appellant’s evidence referred to by the delegate was in response to questions based on the claims that the men in the car knew his home and work addresses as claimed in the Entry Interview and the Statutory Declaration. By reference to that evidence the Authority rejected the claim that the men in the vehicle knew him and found that the men’s comments were made to increase the appellant’s fear and give weight to their threats. Those findings implicitly involved a rejection of the appellant’s claim at the Entry Interview that the men knew his home and work addresses. It was not necessary for the Authority to expressly refer to the claim and in the circumstances I would not infer that there was a failure to deal with it. Rather, as is evident from the Authority’s reasons, it was aware of the claim and implicitly addressed and rejected that claim in making its findings about whether the men in the vehicle knew him.
In his reasoning the primary judge found that as the appellant had given different versions of the event, the Authority rejected as “a finding of credit” the appellant’s version. That is not what that Authority did. In submissions counsel for the Minister noted that no submission to that effect was put to the primary judge. That said, notwithstanding that finding, ultimately the primary judge concluded as I have that the Authority did not fail to consider an integer of the appellant’s claims or fail to take into account corroborative evidence.
Ground three is not made out.
CONCLUSION
As the appellant has not made out any of his grounds of appeal it follows that the appeal should be dismissed and the appellant should pay the Minister’s costs as agreed or taxed. I will make orders accordingly.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 6 September 2018
2
13
1