DLB19 v Minister for Immigration

[2020] FCCA 2273

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLB19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2273

Catchwords:
MIGRATION – Application for judicial review of decision made by the Immigration Assessment Authority – unreasonableness – unarticulated claim arising from material – real chance test - no jurisdictional error established.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s33(1)(c)

Evidence Act 1995 (Cth)

Migration Act 1958 (Cth), s.473JA

Cases cited:

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs

[2003] HCA 71

AYY17 v Minister for Immigration and Anor [2017] FCCA 2886

DFC16 v Minister for Immigration and Border Protection [2018] FCAFC 56

Minster for Immigration and Boarder Protection v MZYTS [2013] FCAFC 114

Minister for Immigration and Citizenship v Li [2013] HCA 18

Minister for Immigration and Citizenship v SZMDS [2010] HCA

Minister for Immigration and Ethnic Affairs v Guo and Anor [1997] HCA 22

NABE v Minister of Immigration and Indigenous Affairs (No 2) [2004] FCAFC

263

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte

Applicants s134/2002 [2003] HCA 1

Applicant: DLB19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2316 of 2019

Judgment of: Judge Obradovic

Hearing date: 3 August 2020

Date of Last Submission: 3 August 2020

Delivered at: Parramatta

Delivered on: 27 August 2020

REPRESENTATION

Counsel for the Applicant: Mr Silva

Solicitors for the Respondents: Sparke Helmore

Appearing for the Respondents: Ms Evans

ORDERS

1. The Amended Application filed 14 November 2019 is dismissed.

2. The applicant is to pay the costs of the first respondent as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Parramatta

SYG 2316 of 2019

DLB19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

Immigration Assessment Authority

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 2 September 2012.

2. On 14 March 2017 the applicant applied for a Safe Haven Enterprise Visa (SHEV) on the basis that he feared serious harm from Sri Lankan authorities by reason of his Tamil ethnicity, imputed political support for the Liberation Tigers of Tamil Eelam (LTTE) and due to his membership of the particular social group of failed asylum seekers returning to Sri Lanka.

3. The applicant’s initial claim for protection was as follows[1]:

   a)In or about 2007, he was stopped and cautioned by the Sri Lankan Army at a military checkpoint on suspicion of supplying goods to the LTTE[2]. He was told that he would thereafter be monitored;

   b)He was stopped and searched (four months later) at a different checkpoint where the Sri Lankan Army found cash on him. He was accused of intending to supply the money to the LTTE. The applicant says that it was money owed to him by customers that he travelled to collect;

   c)The Criminal Investigation Division (CID) visited him on multiple occasions between 2007 and 2008 and made extortion demands for money;

   d)He relocated on two occasions because of this, however was forced to return due to threats against his family.  On return, the CID visited his house, forced him into a white van, took him to an isolated location and interrogated him about his perceived involvement with the LTTE. This was not the first time the CID had forcibly taken him from his home, although on this occasion he was also beaten;

   e)As a result, he relocated his family to a different location in Sri Lanka whilst he went to go work in Dubai and then Iraq;

   f)His family continued to be harassed, threatened (even after his return from Iraq) and more specifically were told by the CID that they would kill the applicant upon his return and kidnap their son; and

   g)He then made arrangements for his son to relocate again to another part of Sri Lanka whilst he left Sri Lanka by boat to Australia.

   [1] CB: 50 – 54

   [2] The applicant was a textile wholesaler in Sri Lanka and as part of his work travelled frequently across Sri Lanka to distribute textiles materials.

4. In a further statement provided to the Delegate on 11 June 2019[3], the applicant further claimed that he feared harm from Buddhist and Muslim extremists because he was Hindu, attended Tamil nationalist activities in Australia and that he would be perceived as a wealthy Tamil and targeted for extortion. He further claimed that he feared harm “arising from the lack of unity government, misuse of emergency regulations and the possible Presidential election of Gotabaya Rajapaksa (Gotabaya) who was involved in the killing and hatred of Tamils.”[4]  The applicant also provided written submissions and three articles in respect of his claims.

   [3] CB: 77 - 78

   [4] CB: 77 - 80

5. On 13 June 2019, the applicant participated in an interview with the Delegate. During the interview the applicant provided further information, including that[5]:

   a)He did in fact support the LTTE and knowingly assisted in transporting goods; and

   b)Due to a 2014 data breach, Sri Lankan authorities attended his family home and asked questions about him and his son. As a result, his wife sent their son to India.

   [5] Respondent’s written submissions filed 29 April 2020

6. On 10 July 2019, the applicant’s SHEV application was refused by the Delegate. In determining the application, the Delegate found that[6]:

   a)The applicant did not have a profile of interest to the Sri Lankan authorities;

   b)The applicant would face a remote chance of harm because of his Tamil ethnicity, Hindu religion or on the basis of any real or perceived links to the LTTE;

   c)The applicant would not face a real chance of harm on the basis of his wealth or perceived wealth or as a result of any imputed political opinion now or in the reasonable foreseeable future; and

   d)The applicant would not face a real chance of serious harm as a result of  his departure from Sri Lanka to seek asylum in Australia, although he may face some societal stigmatisation,  discrimination and/or monitoring.  

   [6] CB: 113

7. On 16 July 2019, the Delegate’s decision was referred to the Immigration Assessment Authority (“Authority”) for fast tracked review under Part 7AA of the Migration Act 1958 (Cth) (“the Act”).

Authority’s Decision

1. On 8 August 2019, the Authority determined the applicant’s case. It affirmed the decision of the delegate not to grant a temporary protection visa.

   a)In respect of the applicant’s imputed association with the LTTE, the Authority accepted that the applicant was stopped, questioned and searched on at least two occasions when travelling through a particular region in Sri Lanka, however the Authority were not prepared to accept that the Sri Lankan authorities had any interest in the applicant beyond being a travelling Tamil.

   b)Ultimately, the Authority was not satisfied that the applicant was imputed with any association of the LTTE outside the general suspicion of being a Tamil, particularly given his ability to approach police and report an extortion attempt and as well as his ability to travel internationally for employment.

   c)In respect of the extortion attempts, the Authority accepted that the applicant was subject to extortion attempts on the basis that he was perceived as a wealthy Tamil, however did not accept that these attempts arose from any perceived association with the LTTE or that they were associated with the Sri Lankan authorities. Significantly, the Authority further did not accept that the applicant’s family returned to the area where these extortion attempts occurred after the applicant’s departure to Australia. In fact, the Authority asserted that it was implausible that that had occurred and that it was unlikely that the applicant’s family’s continued to be harassed by the extortionists.

   d)The Authority were also of the view that despite the applicant having previously operated a successful business, given the lapse of time, the applicant did not currently have a profile of being a wealthy Tamil or that there was anything else that  would mark him out as different to any other returnee.[7] Even so, the Authority did however accept that the applicant may face some difficulties arising from his status as a failed asylum seeker despite it not amounting to any real chance of harm.[8]

   e)In respect to the situation in Sri Lanka, the Authority highlighted that the situation for Tamils today had increasingly approved, and the areas in which there were reports of some conflict, the applicant had never lived there nor intended to do so.[9]

   f)In respect of the emergence of Gotabaya, and other political figures, the Authority concluded that the applicant’s fears were speculative and lacked foundation.[10]

   g)In respect of the terror attacks and the introduction of emergency powers, the Authority found that there was nothing more than a remote chance that the applicant would face harm by reason of those development or by religious extremists.[11]

   [7] CB: 135 [26]

   [8] CB: 140 [51]-[52]

   [9] CB: 137 [34]-[35]

   [10] CB: 137 [35]-[36]

   [11] CB: 137 – 138 [37]-[40], 143[65]

Determination

1. A decision affected by jurisdictional error is, as a matter of law, no decision at all. A jurisdictional error in the requisite sense of these proceedings can be understood as an error which has led the Authority to somehow fail to fulfil its duty and function of reviewing the decision of the delegate.

2. In order to succeed, the applicant must establish that the Authority’s decision is affected by jurisdictional error.

3. As made abundantly clear by the High Court[12], on judicial review, a decision of the Authority must be considered in light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or the applicant’s lawyers, at some later stage in the process[13]. Likewise, it is the role of the Authority to consider the application and the criteria which that application has to meet, not the criteria for an application, never made, which might have been put on another basis.[14]

   [12] See Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 at [1] per Gleeson CJ

   [13] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants s134/2002 [2003] HCA 1 at [31]

   [14] Ibid. See also Appellant s395/2002 v MIMA (2003) 216 CLR 473 at [37]

Ground 1

1. The applicant asserts that:

   a)The Authority committed jurisdictional error in that it dealt with a claim or issue different from that which the applicant claimed or that which emerged from the evidence.

   Particulars[15]:

   i)At CB135[26] the IAA held that:

   Even if the extortionist remain in the applicant’s home area and became aware of his return to Sri Lanka, I am not satisfied that the applicant has any profile of being wealthy and there is no evidence before me that there is anything else about him that will mark him out as different to any other returnee, or that would lead him being imputed as being wealthy or a wealthy returnee…

   ii)The applicant's claim is not that he will be marked out as any different to any other returnee but he will be marked out as different to other Tamils in his area because he was returning from Australia and thus being considered wealthy or being in possession of money, and thus being a target of extortion.

   [15] Amended Application filed 14 November 2019.

2. The submissions made by Counsel for the applicant were at times very difficult to follow. Furthermore, Counsel appeared to argue points that were not part of the application before the Court.

3. It is convenient to break the first ground into two sub-grounds for the purposes of dealing with the application for judicial review, namely:

   a)Whether the Authority dealt with a claim or issue different from that which the applicant claimed; and

   b)Whether the Authority dealt with a claim or issue different from that which emerged from the evidence.

   It is noted that the two sub-grounds are internally inconsistent.

Whether the Authority dealt with a claim or issue different from that which the applicant claimed?

1. It was submitted by the applicant that one of the applicant’s claims was that he will be extorted because he will be perceived as wealthy because he was returning from Australia.

2. This written submission was not developed during oral submissions, so much so that the Court was not taken to where the applicant purportedly made such a claim to the Authority.

3. What the applicant did claim was that “Further, if I return to Sri Lanka, I would be perceived as a wealthy Tamil and would be targeted abducted and extorted money”[16].  It is clear that there was no suggestion by the applicant in the claim as made, that he would be considered wealthy because he is a returnee from Australia. Therefore, the actual claim by the applicant is different to what was submitted during the hearing before the Court.

   [16] CB: 78 at [7]

4. It was submitted by Counsel for the applicant that in Sri Lanka returnees were generally considered to be wealthy and that this was common knowledge (within the meaning of s144 Evidence Act 1995 (Cth).) As such, it was asserted on behalf of the applicant that the Authority made a finding contrary to that common knowledge.

5. Apart from the fact that the Evidence Act has no application to proceedings before the Authority[17], the submission did not go to any of the grounds contained in the Amended Application filed 14 November 2019, and no leave was sought to further amend the application.

   [17] The Evidence Act 1995 (Cth) applies to all proceedings in a “federal court” which is defined to include a “person or body… that in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence.” The Authority is a separate office within the AAT: s473JA Migration Act 1958 (Cth). As such, the Evidence Act does not apply to Authority as the Administrative Appeals Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate : s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth).

6. Even if the Authority’s finding was contrary to such alleged common knowledge (noting that the Court rejects that such matters are matters of common knowledge in any event), it was not a finding that was illogical, irrational or unreasonable and was open to the Authority on the information before it.

7. The legal threshold for finding that a decision-maker’s reasons are irrational or illogical is very high. The High Court has observed that:

   “Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.” [18]

   [18] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135]

8. Unreasonableness will be established where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to such decision.[19]

   [19] Minister for Immigration and Citizenship v Li [2013] HCA 18

9. The applicant asserted that the Authority considered two bases for the applicant being considered wealthy, namely:

   a)whether there was anything else about him that will mark him out as different to any other returnee; or

   b)whether there was anything that would lead him being imputed as being wealthy or a wealthy returnee.

10. This submission is not supported by any of the evidence, material or information contained in the Court Book or otherwise before the Court.

11. Upon expanding on his written submissions, the applicant’s Counsel was asked about the specific reference in paragraph [26] of the Authority’s reasons[20], namely as to the Authority’s findings:

    a)That it was not satisfied that the applicant has any profile of being wealthy; and

    b)That it was not satisfied that there was any evidence that would lead to the applicant being imputed as being wealthy (as distinct from being a wealthy returnee).

    (emphasis added)

    [20] CB:135 at [26]

12. In answer to this, it was submitted on behalf of the applicant that while the Authority dealt with the applicant’s claim and said there was no evidence of the applicant being wealthy it did not deal with the applicant’s claim that he was wealthy because he was a returnee.

13. The Court has already noted that the applicant’s claim was never expressed as such, namely that he would be considered wealthy because he was a returnee.

14. In any event, the Authority in its reasons found as follows:[21]

    a)The applicant claims that he will face extortion and harm because of a perception of wealth if he returns to Sri Lanka;

    b)The applicant was extorted in 2007 at a time when he was operating a profitable business and had such a profile, and that more than 10 years has passed since then;

    c)That it was not satisfied that the applicant has any profile of being wealthy;

    d)That there was no evidence before the Authority that there is anything else about the applicant that would mark him out as different to any other returnee or that would lead to him being imputed as being wealthy or a wealthy returnee.

    [21] Ibid

15. The findings of the Authority were not limited in the manner submitted on behalf of the applicant. The distinction which the applicant sought to draw was artificial and is not borne out on the evidence.

Whether the Authority dealt with a claim or issue different from that which emerged from the evidence?

1. The applicant relied on a number of authorities.[22] The authorities relied upon by the applicant are in respect of the proposition that the Authority may fall into jurisdictional error where it “fails to determine a case which has not been clearly articulated by an applicant, but arises on the basis of evidence and material before…[it]”[23].

   [22]DFC16 v Minister for Immigration and Border Protection  [2018] FCAFC 56 (“DFC16”) at [6]-[8], citing NABE v Minister of Immigration and Indigenous Affairs (No 2) [2004] FCAFC 263 (“NABE”) at [68] and Dranichnikov v Minister of Immigration and Multicultural Affairs [2003] HCA 26

   [23] NABE at [58]

2. It is well accepted that such an unarticulated claim must be raised squarely on the material before the Authority and that the review obligations extend to a claim which is not expressly advanced but is apparent on the face of the material before it. In respect of a claim which clearly emerges on the materials[24]:

   a)Such a finding is not to be made lightly;

   b)The fact that a claim might be said to arise from materials is not enough;

   c)To clearly emerge from the materials, the claim must be based on established facts;

   d)There is no precise standard in determining whether an unarticulated claim has been squarely raised; and

   e)Understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

   [24]AYY17 v Minister for Immigration and Anor (2017) FCCA 2886 (“AYY17”) at [18] 

1. The Court was not taken to any evidence or material before the Authority which supported any unarticulated claim. Furthermore and confusingly, it was submitted on behalf of the applicant that “the claim was articulated but even otherwise it arose from the materials”. This was really an argument about the merits of the decision, rather than any asserted jurisdictional error.

Overall in respect of Ground 1

1. A proper and fair reading of the Authority’s decision highlights that the Authority did not in fact confine their assessment of the applicant’s risk of harm as a returnee as asserted by the applicant, but rather more generally. 

2. Furthermore, the Court is not satisfied that there was any unarticulated claim that arose from the material which the Authority failed to deal with.

3. Ground 1 is not made out.

Ground 2

1. The applicant asserts that:

   a)The Authority committed jurisdictional error in that it failed to deal with the issue that he was extorted money on the pretext of his association with the LTTE by CID, Police or groups associated with the Sri Lankan government.

   Particulars[25]:

   i)At CBI 35[24] the IAA accepted that he was subjected to extortion, including abduction and mistreatment, in or around 2007.

   ii)The IAA accepted that the men identified themselves as CID

   iii)The IAA held that even if they were associated with the Sri Lankan authorities, they were not acting in official capacity or does not show that the applicant has an adverse profile.

   iv)But the real issue is not whether he has an actual profile or whether he was attributed with actual LTTE profile, but that he was extorted on the pretext of his LTTE profile. That is that they used that false reason to scare him to extort from him. There is no reason that this could not happen again, and this was not dealt with by the IAA.

   [25] Amended Application filed 14 November 2019

2. Apart from references to the reasons noted directly below and particular extract from the transcript of the applicant’s SHEV interview (in the written submissions), the Court was not taken to any material before the Authority which was said to contain such an unarticulated claim.

3. The applicant, in his written submissions, which were not expanded on at hearing, noted paragraphs [19], [21] and 24] of the Authority’s reasons and said that the Authority’s findings did not “exhaust the issues to be considered”. It was submitted that although the applicant was unrepresented and did no clearly articulate the issue it arose from the evidence and the way his claim was advanced.

4. The Court has already noted the relevant principles in respect of unarticulated claims said to arise from the material[26].

   [26] See paragraph 31 of Reasons

5. It was submitted by the applicant that the real issue was not whether he has an actual profile or whether he was attributed with actual LTTE profile, but that he was extorted on the pretext of his LTTE profile and that there was no reason that this could not happen again, something which the Authority was said to have failed to consider. This submission was no more than a repetition of the particulars of the ground. Nothing further of substance was said during oral submissions.

6. Upon reading the relevant material, the Court finds that a claim in terms of “the issue that … [the applicant] was extorted money on the pretext of his association with the LTTE by CID, Police or groups associated with the Sri Lankan government” was never articulated by the applicant before the delegate or the Authority, and is not a claim which clearly arises on the material before the Authority.

7. The Authority cannot have failed to deal with a claim if it was never made or if it did not arise from material.

8. Ground 2 is not made out.

Ground 3

1. The applicant asserts that:

   a)The Authority committed jurisdictional error in misapplying the real chance test, and alternatively the Authority unreasonably failed to deal with the applicant’s claim that Gotabaya’s emergence posed a threat to him as it could bring back the situation which prevailed when he was extorted.

   Particulars[27]:

   i)At CBI 37[36] the IAA just dismissed the fear about Gotabaya without any serious consideration;

   ii)It failed to consider the real chance of persecution from that real chance of Gotabaya emerging as victorious from the election;

   iii)It failed to speculate about the real chance of persecution where that speculation is legally necessary;

   iv)It failed to look at the history of their racist conduct and failed to consider if they have changed their views;

   v)It failed to look at the reasonably foreseeable future and looked at short term future to decide on the well-founded fear of persecution; and

   vi)It unreasonably considered the very short period in which Mahinda Rajapakse became Prime Minister, because it was too short to be indicative of anything.

   [27] Amended Application filed 14 November 2019

2. During oral submissions, it was submitted that the Authority failed to consider the possibility of Gotabaya Rajapaska becoming president, and then further failed to speculate (in the sense permitted by Minister for Immigration and Ethnic Affairs v Guo and Anor [28] ) what might happen to the applicant if he was to return to Sri Lanka and Gotabaya Rajapaska was president.

   [28] [1997] HCA 22 [“Guo”].

3. The applicant himself at paragraph 12 of his statement dated 10 June 2019[29] indicated that “If Gotabaya Rajapaksa became president there would not be any constructive changes in relation to the country situation now or in the foreseeable future”. It was submitted that such statement by the applicant must be understood in context and that it was not a concession by the applicant that things would not change for the worse in Sri Lanka if Gotabaya Rajapaksa was elected president.

   [29] CB: 80

4. It was submitted on behalf of the applicant that the Authority failed to consider the applicant’s claims in regard to what might happen if Gotabaya Rajapaksa became president by not considering the country information and particular aspects of the applicant’s claim contained in the material provided by the applicant on 11 June 2019.[30]

   [30] CB: 77-94

5. Counsel for the applicant referred to Minster for Immigration and Boarder Protection v MZYTS[31] to support his submissions.

   [31] [2013] FCAFC 114 in particular at [32] - [36]

6. The Authority’s reasons reveal that:

   a)It identified that the applicant’s claims were contained in his SHEV application, a supplementary statement and submissions provided on 11 June 2019, and as raised during the interview with the delegate on 13 June 2019;

   b)It considered the applicant’s statement of 10 June 2019 (provided on 11 June 2019). The statement was summarised in the Authority’s reasons;[32]

   c)It accepted that the applicant (and Tamils in general) may fear the re-emergence of Mahinda and Gotabaya Rajapaksa;

   d)It considered the applicant’s claim in relation to both Gotabaya Rajapaksa and his brother Mahinda:[33]

   i)It considered that Mahinda Rajapaksa was appointed Prime Minister for a short period of time in 2018 but that he was no longer Prime Minister and that his appointment had raised concerns amongst Tamils that history could repeat itself with further violence and discrimination.

   ii)It considered the possibility of Gotabaya Rajapaksa, who had been accused of war crimes during the final months of the conflict, being elected president in that it noted he had confirmed that he would stand as a candidate in the presidential elections to be held later that year.

   e)It found that there was no information that Gotabaya Rajapaksa, in the context of re-emerging on the political scene, expressed any views on returning to the discriminatory practices or oppression that marked the conflict years[34]; and

   f)It found that the applicant’s claim was speculative and not well-founded.[35]

   [32] CB: 130-131 at [6]

   [33] CB:137 at [35]

   [34] CB:137 at [36]

   [35] Ibid

7. It was submitted by the applicant that the Authority speculated about the matter in the impermissible way, that is, it engaged in conjecture or surmise. It was said in oral submissions that the Authority failed to consider whether Gotabaya Rajapaksa would be elected president and then failed to consider what might happen if he was elected president.

8. While it might be correct that there is no specific reference in the reasons of the Authority to a consideration of Gotabaya Rajapaksa becoming president (that is, it is not a matter per se which the Authority assessed as likely to happen or not or assessed at all) there are specific references in the reasons which indicate that the Authority did not have before it any information that if Gotabaya Rajapaksa re-emerged he would then return to discriminatory practices and oppression. The Authority did therefore assess the possibility of what might happen if Gotabaya Rajapaksa was to be elected president, as it found that there was no evidence that what the applicant was fearful of would eventuate.

9. In respect of the applicant’s other particulars of this ground, the Court notes that it can be inferred from the reasons as a whole that the Authority was aware and had considered the oppression of and discrimination against the Tamils during the conflict years and not just during the brief period when Mahinda Rajapaksa was Prime Minister.

10. The applicant did not during his submissions to the Court specifically point to any fact or information contained in the applicant’s material or otherwise which contained information in respect of the “history of their [Mahindra and Gotabaya Rajapaksa’s] racist conduct…” such that the Authority then “failed to consider if they have changed their views.” This is despite the submission being made that the Authority failed to deal with the evidence and/or the claim.

11. In Guo[36]  the High Court stated as follows:

    “…Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation…”

    (citations omitted)

    [36] [1997] HCA 22 at [48]

12. The Authority found that the applicant’s fears are speculative and not well-founded; this is in line with the High Court authority identified above. The Authority did not speculate (in the impermissible sense of conjecture or surmise), it considered the applicant’s claim and found that it was speculative and not well-founded on the material before it. The Authority did not fail to consider the “real chance” issue and thus fall into jurisdictional error.

13. Ground 3 is not made out.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 27 August 2020