ECE21 v Minister for Home Affairs
[2021] FCA 1447
•22 November 2021
FEDERAL COURT OF AUSTRALIA
ECE21 v Minister for Home Affairs [2021] FCA 1447
File number: WAD 104 of 2021 Judgment of: JACKSON J Date of judgment: 22 November 2021 Catchwords: MIGRATION - application for judicial review of a decision made by the Minister under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant's visa - whether the Minister failed to make findings on claims made by the applicant to engage Australia's protection obligations - whether the Minister engaged in an active intellectual process when considering the claims - characterisation of the Minister's findings - Minister rejected claims on the basis of lack of evidence - in the circumstances Minister not obliged to consider the probability that harm would occur - adequate engagement with the claims - application dismissed
PRACTICE AND PROCEDURE - suppression orders - applicant a citizen of South Sudan - Minister accepted that Australia owed non-refoulement obligations to the applicant - real risk of serious harm to the applicant if returned to South Sudan - s 91X of the Migration Act 1958 (Cth) not applicable - suppression order under s 37AF of the Federal Court of Australia Act 1976 (Cth) necessary to protect the safety of the applicant - applicant's name suppressed and pseudonym applied
Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG
Migration Act 1958 (Cth) ss 5AAA, 91X, 197C, 198, 501, 501CA
Cases cited: AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 364 ALR 202
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456
BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; (2020) 385 ALR 286
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474
EXT20 v Minister for Home Affairs [2021] FCA 629
G v Minister for Immigration and Border Protection [2018] FCA 1229; (2018) 266 FCR 511
Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569
Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590
MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441
Perera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 403
Warnakulasuriya v Minister for Immigration and Multicultural Affairs (unreported, Finkelstein J, 6 April 1998)
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 61 Date of last submissions: 1 November 2021 (applicant)
4 November 2021 (respondent)Date of hearing: 22 October 2021 Counsel for the Applicant: Mr HW Glenister Solicitor for the Applicant: William Gerard Legal Pty Ltd Counsel for the Respondent: Mr PR Macliver Solicitor for the Respondent: Australian Government Solicitor ORDERS
WAD 104 of 2021 BETWEEN: ECE21
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
ORDER MADE BY:
JACKSON J
DATE OF ORDER:
22 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant must pay the respondent's costs of the application on a lump sum basis.
3.On or before 6 December 2021, the parties must confer and submit any minute of consent fixing an appropriate lump sum figure as to costs.
4.If no agreement is reached, the costs will be referred to a Registrar to determine an appropriate lump sum figure.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JACKSON J:
The applicant seeks judicial review of a decision that the respondent (Minister) made under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of a visa which the applicant held.
The applicant needed an extension of time to make the application because his solicitor filed it after 4.30 pm on the last day on which it was required to be filed. That meant that he was deemed to have filed the application on the next day on which the court was open for business. The solicitor has affirmed an affidavit which confirms that the time of filing was due to inadvertence on his part. The Minister neither consented to nor opposed the extension of time. Given that the extension was required for a short period of time only, and the circumstances had been adequately explained, I made orders at the hearing that the extension would be granted, and the hearing was conducted as an application for judicial review.
The sole ground of the application is that the Minister, the applicant contends, failed or refused to make findings on claims made by the applicant to engage Australia's protection obligations although, as will be seen, the basis of the application shifted over the course of the hearing. For reasons that follow, the application will be dismissed.
Suppression of the applicant's name
These proceedings concern the likelihood that the applicant will experience significant harm if he is returned to his country of origin, South Sudan. In the decision under review, the Minister accepted that there was a real risk of such harm. In 2019, the applicant applied for a protection visa. That application was refused on the ground that the applicant, having been convicted of a particularly serious crime, was a danger to the Australian community. The delegate who decided the application did, however, accept that Australia had non-refoulement obligations to the applicant because there was a real risk that he would be targeted for serious harm in South Sudan.
Since that application for a protection visa was potentially relevant to the present matter, I required submissions from the parties as to whether s 91X of the Migration Act applied to this proceeding so as to prohibit publication of the applicant's name. Section 91X(1)(a) relevantly provides that the section applies to a proceeding before this court 'if the proceeding relates to a person in the person's capacity as … a person who applied for a protection visa'.
The applicant submitted that s 91X did apply because, while this proceeding is not primarily about the applicant's protection visa application, the Minister repeatedly refers to that application in the decision under review and the court will have to refer to it in its judgment. The applicant submitted that the words 'relates to' in s 91X(1) are capable of being interpreted broadly and, given the obvious beneficial purpose of s 91X, they should be given such an interpretation.
What that submission overlooks, with respect, is that, beneficial or not, s 91X represents an incursion into the important principle of open justice. It is doubtful that it should be given a broad application. The Minister submitted that s 91X does not apply here because it does not relate to the applicant in his capacity as a person who applied for a protection visa. It relevantly relates to the applicant in his capacity as a person whose visa was cancelled under s 501(3A). That submission appears to be correct: see G v Minister for Immigration and Border Protection [2018] FCA 1229; (2018) 266 FCR 511 at [4] (overturned, but not on that point: Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569); and BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; (2020) 385 ALR 286 at [98]‑[100].
The Minister submitted, however, that the court should make orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) on the grounds that the orders are necessary to prevent prejudice to the proper administration of justice (s 37AG(1)(a)) and/or the order is necessary to protect the safety of any person (s 37AG(1)(c)). The Minister submitted that:
(a)the applicant has been found to be someone to whom Australia prima facie has an obligation not to return to South Sudan but nevertheless is not eligible for the grant of a protection visa;
(b)the ground of review in this matter concerns the adequacy of the Minister's reasoning in respect of consideration of representations made to the effect that the applicant engages Australia's protection obligations;
(c)an understanding of the public law issues in this case will not be advanced by the publication of the applicant's identity; and
(d)the obvious protective purpose of s 91X of the Migration Act reflects a legislative intention that identities of refugee applicants in Australia should be protected by anonymisation where possible.
I make no comment on the last of these submissions, but I accept that the other matters raised by the Minister justify a suppression order in this case. In order to be satisfied as to the ground of necessity to protect the safety of a person, the court need not find on the balance of probabilities that harm will occur if the suppression order is not made: see AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 364 ALR 202 at [14]‑[15]. In the circumstances of the present case, it is enough that there is a real risk of serious harm to the applicant and that the risk will be appreciably increased if the order is not made. So I was satisfied that the orders proposed by the Minister were necessary to protect the safety of the applicant (which meant it was unnecessary to consider whether they were necessary to prevent prejudice to the proper administration of justice). I made orders suppressing the applicant's name and he has been assigned a pseudonym on the court file and in the publication of these reasons.
For the same reasons, I have made a similar order in another proceeding the applicant brought in this court (now concluded) to which it has been necessary to refer below.
Background to the present application
The applicant is a citizen of South Sudan. He is of Dinka ethnicity.
According to the findings of the sentencing judge, the applicant suffered a life of great deprivation in South Sudan. He was recruited as a child soldier at the age of 12 and saw many traumatic things, including torture and killings. This had a devastating impact on him, and he suffers from depression, anxiety and post-traumatic stress disorder.
The applicant escaped from the army after four to five years and spent more years in a refugee camp in Kenya before coming to Australia in 2008 as a refugee, at the age of 26. He stayed in Australia under a Class XB Subclass 202 Global Special Humanitarian visa.
From September 2011 onwards the applicant was convicted of a range of offences involving violence, damage to property and breach of a restraining order. In 2013 he committed a particularly serious crime. He got into a fight with an acquaintance. The acquaintance hit the applicant over the head with a glass bottle, which shattered and cut the applicant's head. The acquaintance began to walk away. The applicant followed him and punched him in the head and, when he fell to the ground, the applicant punched him repeatedly until other people intervened. The acquaintance has become severely and permanently disabled as a result. He suffers severe cognitive deficits and lives in a nursing home, unable to stand or sit without being held in place in a wheelchair.
The applicant pleaded guilty to the offence of unlawfully causing grievous bodily harm with intent to do so. In December 2014 he was sentenced to 6 years and 10 months imprisonment, and was eligible for parole after 4 years and 10 months.
A delegate of the Minister cancelled the applicant's visa under s 501(3A) of the Migration Act on 25 July 2018. The applicant then made representations under s 501CA(3) as to why the cancellation should be revoked. The then Minister made a decision not to revoke the cancellation. In a previous proceeding in this court the applicant applied for judicial review and in that proceeding, by consent, the Minister's decision was quashed.
The Minister subsequently made a second decision not to revoke the cancellation, this one on 23 March 2021. It is that decision which is the subject of the present application for judicial review.
The Minister's decision
The Minister was satisfied that the applicant had made representations in accordance with s 501CA(3) of the Migration Act. He was not satisfied that the applicant passed the character test. Accordingly, the Minister proceeded to determine under s 501CA(4)(b)(ii) whether there was 'another reason why the original decision should be revoked'.
The Minister summarised the representations that the applicant made as including a claim that if he returned to South Sudan he could be killed by his father's enemies, by relatives of the victim of the assault in 2013, by rebels if he refused to join them, and by other tribes because of his Dinka ethnicity. The applicant claimed that he will be exposed to genocide and will die there, if returned. The applicant also expressed fear about returning to South Sudan because of a publication he had made while in Australia in which he was critical of political figures in South Sudan. He also said he feared that he would be killed because of discussion of similar matters on his Facebook account.
When the Minister turned to examine these claims, he noted that in 2019 the applicant had applied for a protection visa. The delegate had refused the application on the ground that the applicant, having been convicted of a particularly serious crime, was a danger to the Australian community. The delegate had, however, accepted that Australia had non-refoulement obligations to the applicant because there was a real risk that he would be targeted for serious harm in South Sudan.
The Minister then assessed each of the applicant's claims to fear persecution or harm on return to South Sudan. There were several heads of claim. The Minister's treatment of the first four of these are the focus of the application for judicial review so it is necessary to set that treatment out in full (italics in original, some details have been anonymised):
Threats from his father's enemies
25.In his request for revocation, [the applicant] submits that 'in 2007 my dad had a fight in Bor with someone over the cattle during which both men were injured. In 2012 that man died of unknown causes and his family complained to the police and my dad was charged for murder by the corrupt police who were related to the victim'. He further submits that, resulting from that charge, his father was convicted and sentenced to a term of imprisonment. He was incarcerated in a prison in Bor but after war broke out in 2013 'My dad … escaped from the prison and he run to Juba where he was kidnaped and killed by relatives of the victim as a pay back'. [The applicant] further submits that his cousin, [redacted] 'advised me on the phone that I should not come to South Sudan because those enemies are waiting for me and they made it clear that they will kill me if I come to South Sudan'. He also submits that his father's killer is now a 'top security advisor to president' and 'for me to be safe in that lawless country is absolutely zero'.
26.I note the discussion of this claim in the Protection visa decision and the delegate's conclusion that a number of discrepancies cast serious doubt on these claims. The delegate noted that there had been some historical dispute between [the applicant's] family and the man his aunt married and who later killed her and his family, one of whom, [Person X], was a person of considerable influence - having been [a senior state government official] in Sudan and later [a Minister]. However, the delegate found that the evidence did not establish that [the applicant's] father's death in 2015 was clearly caused by [Person X] or was due to suspicious circumstances.
27.I find that the available information does not support a contention that [Person X] or other members of that family would now seek vengeance on [the applicant] because of his father's limited involvement in a family dispute many years ago. Accordingly, I am unable to make a finding in relation to this claim.
Danger from the family of the person he assaulted on 7 October 2013 (in Australia)
28.[The applicant] further submits that in South Sudan he would be killed by the family of the person he assaulted and seriously injured (in Australia) on 7 October 2013, whose father holds a position of police commissioner there.
29.I note [the applicant] has not submitted any independent corroborating evidence to identify the victim's father or his claimed position, nor has he provided any evidence of threats or other evidence of danger to him in South Sudan from this source.
30.As such, I am unable to make a finding in relation to this claim.
Claims made - Facebook account
31.In his submission dated 7 May 2020, [the applicant] states that he will be subjected to harm at the hands of South Sudanese authorities because of his remarks on his Facebook account about war crimes and atrocities the politicians committed. He also claims that he was threatened on Facebook by [Person Y, a relative of a high-ranking political figure in South Sudan], 'because she knew I am in the immigration detention centre' adding 'the issues of civil wars and human rights violation by the South Sudan government is extremely a great concern worldwide and Australia government need to be careful with the language of deporting refugees to South Sudan'.
32.[The applicant] has submitted two screenshots from his Facebook account, stating that their contents are evidence of him being threatened by [Person Y]. I note that the identity of the person who responded to his Facebook posts has not been verified, nor has [the applicant] provided any evidence that he placed posts or videos about war crimes or that he publicly expressed his political opinions regarding South Sudanese politicians or that he made any remarks on war crimes, or atrocities committed by anyone in South Sudan, on his Facebook account as he claims.
33.I further note the findings of the delegate regarding this claim, in particular that a review of [the applicant's] Facebook account had not found any evidence of the posts he claimed to have made.
34.Given the lack of information or evidence, I am unable to make a finding in relation to this claim.
Forcible conscription to the rebel army
35.[The applicant] further states that if forced to return to South Sudan, he would be at risk from rebels operating there 'if I refuse to join them and fight a war I believe is against humanity …' enlightening [sic] 'If I am deported to South Sudan and to my village of Bor, the rebels will conscripted me by force into their army to kill innocent women and children'.
36.Again, [the applicant] has not provided independent documentary evidence that he is likely to be conscripted by rebel forces. Accordingly, I am unable to make a finding in relation to this claim.
The Minister went on to consider the applicant's fears as to other things that would happen to him on return to South Sudan. The applicant does not impugn the Minister's reasoning in relation to these matters. The applicant claimed to fear for his life due to his Dinka ethnicity and attacks on Dinka people from other ethnic groups in South Sudan. The Minister noted that the delegate considering the protection visa application had found that the applicant would face a real chance of serious harm on this basis. The Minister considered country information and accepted that there was a risk that the applicant would suffer harm on return to South Sudan due to widespread fighting and the poor security and humanitarian situation prevailing there generally. But he then said that he was 'unable to make any finding as to whether this general situation gives rise to international non-refoulement obligations' in respect of the applicant. There is little explanation for this conclusion, beyond the clue provided by the use of the word 'general', the Minister's point apparently being that a risk of harm due to generalised ethnic violence may not constitute persecution (or other adverse treatment) of the kind that engages Australia's international treaty obligations. The applicant does not claim that the Minister erred in his treatment of this claim so it is not necessary to comment on whether it is correct.
The Minister then considered a further claim made by the applicant, that he could not return to South Sudan because of criticisms of government figures which the applicant had made in one or more publications. It is not necessary to go into more detail than that about the publication or the criticisms. The Minister noted that the delegate who decided the protection visa application found that the applicant faced a real chance of persecution on return to South Sudan because of the publication. The Minister, having considered the claim, accepted in line with the delegate's assessment that the applicant 'would face a real risk of serious harm of [sic] persecution on a return to South Sudan' as a result of the publication. He also accepted that the applicant was owed non-refoulement obligations because the publication had made allegations of genocidal activities by members of another tribe.
The Minister then found that the applicant could not be returned to any country other than South Sudan and that he could not safely relocate from there to any other member state of the East African Community (comprised of Burundi, Kenya, Rwanda, Uganda and Tanzania).
The Minister then stated his conclusions about non-refoulement obligations. He accepted the conclusion that the delegate had drawn that the applicant is a person in respect of whom Australia has international non-refoulement obligations, with the country of reference being South Sudan. He said that this meant that his removal to South Sudan would breach those obligations. The Minister acknowledged the statutory consequence of a decision not to revoke the cancellation of the visa would be that, as an unlawful non-citizen, the applicant would become liable to removal from Australia under s 198 of the Migration Act and that s 197C provides that, for the purpose of s 198, it is irrelevant whether Australia has international non‑refoulement obligations in respect of the unlawful non-citizen.
The Minister then considered restrictions on the applicant's ability to apply for another visa, noting that without leaving the migration zone (essentially, Australia) he could not apply for any visa other than a certain kind of bridging visa, which he could only apply for if invited to do so. The Minister also noted that he had certain statutory non-compellable powers to grant a visa to the applicant or to make a residence determination, even if he decides not to revoke the cancellation of the previous visa. The Minister concluded (at para 59):
I have considered that any removal of [the applicant] in breach of Australia's non‑refoulement obligations would have serious implications not only for [the applicant] as an individual in terms of the risk of harm that he faces, but also for Australia in terms of its international standing and reputation. I have found that these considerations weigh in favour of revocation of the cancellation of [the applicant's visa].
The Minister then went on to consider other matters relevant to his decision about whether to revoke the cancellation of the visa. He concluded that the applicant represented an unacceptable risk of harm to the Australian community and that the protection of the community outweighed the other considerations he had described, including that he is owed non-refoulement obligations.
The applicant's case
The nature of the applicant's case, or at least its emphasis, changed after the filing of his written submissions and over the course of the hearing. In the written submissions the applicant, understandably, characterised the Minister's repeated statements that he was 'unable to make a finding in relation to this claim' as an indication that the Minister had made no finding in relation to the claim. Relying on Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Minister for Immigration and Ethnic Affairs v Guo(1997) 191 CLR 559 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, the applicant's essential contention was that the Minister should have, and did not, weigh the probability that the applicant would experience persecution for a reason set out in the Refugees Convention (Convention Relating to the Status of Refugees. Opened for signature 28 July 1951. 189 UNTS 150 (entered into force 22 April 1954); amended by Protocol Relating to the Status of Refugees. 606 UNTS 267 (entered into force 4 October 1967).). So even if the Minister was uncertain about whether the claimed persecution had occurred, he should have assessed the level of probability that it did occur, and should have taken that into account in his determination of whether the applicant faced a real chance of persecution.
In the course of oral submissions, counsel for the applicant refined his characterisation of what the Minister had in fact done in the passage he sought to impugn. Counsel moved away from submitting that the Minister had made no finding at all about the four claims. Instead, his ultimate submission in respect of the claims was that the Minister should be taken to be saying that the information before him did not satisfy him that the claim had been made out, and that this involved error because the Minister should still have gone on to assess the probability that the harm was likely to eventuate, and take that into account (which I will call 'required speculation'). In relation to the second of the claims, concerning risk from the victim's family, counsel also made the further point that the Minister simply failed to engage in an active intellectual process directed at the question of whether the applicant did face a real chance of significant harm.
Ultimately, in relation to the issue of required speculation about all four of the claims, and in relation to the claim about risk from the victim's family, counsel for the applicant submitted that the Minister had failed to display the requisite level of intellectual engagement. This relied on the many cases addressing that ground of jurisdictional error, of which Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 is an authoritative example. The applicant referred in particular to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178.
The Minister's case
In his written submissions, the Minister accepted that he had not made findings in 'specific terms' about the four claims in the long passage quoted above. But he submitted that his obligation was not to make a finding about each claim, but to give consideration to the claims, in the sense of engagement in an active intellectual process.
The Minister submitted that he gave consideration to all of the claims made by the applicant as to the harm he might face upon return to South Sudan. He said it was not a case where he had failed to give consideration to the claims on the mistaken basis that they would be considered in a protection visa application: cf. BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456. Relying on O'Bryan J's decisions in Perera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 403 and EXT20 v Minister for Home Affairs [2021] FCA 629, he submitted that his statements that he was unable to make findings in respect of the claims should be understood as statements that he was not satisfied on the material before him that the applicant faced a risk of harm for the reasons provided in those claims. As for the contention made in this case that the Minister was obliged to ask himself about the probability that the claimed events had occurred, the Minister submitted that this overlooked the requirement in s 5AAA of the Migration Act that it is the responsibility of the non-citizen to specify all particulars of his or her claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim.
The Minister also submitted that if he had fallen into error as the applicant claimed, it was not a jurisdictional error because it was not material to the decision in the sense explained in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590.
Issues
Although the applicant's case changed after the filing of his written submissions and over the course of the hearing, the Minister did not object to meeting the case as finally articulated on its merits. The following issues thus emerge from the parties' submissions:
(1)What findings did the Minister make about each of the four claims which were the subject of paras 25‑36 of his reasons?
(2)In the case of each of the four claims, did the Minister fail to give them adequate consideration because he failed to assess and take into account the probability that the circumstances that were said to lead to the applicant's fears of harm had occurred or would occur, even though the Minister was not satisfied on the balance of probabilities that the claims had been made out (i.e. did he fail to engage in required speculation)?
(3)In the case of the second claim, concerning fear of harm from the family of the victim of the violent assault in 2013, did the Minister fail to give it adequate consideration at all?
(4)If any of the above errors are established, were they material to the outcome?
Principles
Australia's non-refoulement obligations arise primarily under the Refugees Convention: BCR16 at [32]. They are engaged where the non-citizen has a well-founded fear of persecution for a Convention reason. In order to be well founded, it is not necessary to establish on the balance of probabilities that the non-citizen will be persecuted for a Convention reason on return to the country of origin. It is sufficient if there is a real chance of such persecution; real in the sense of not being remote, although it need not be more than a 50% chance or otherwise likely: Chan at 389 (Mason CJ), 397‑398 (Dawson J), 407 (Toohey J), 429 (McHugh J).
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence, and in many if not most cases that will require findings as to what has occurred in the past. That may require estimation of the degree of probability that relevant events have occurred in the past. For example, if the decision maker determines that it is only slightly more probable than not that punishment for a Convention reason did not occur in the past, it must still take into account the chance that the applicant was so punished, in determining whether there is a well-founded fear of persecution for a Convention reason. That can require a degree of 'reasonable speculation' (as distinct from mere conjecture or surmise) about whether past events occurred. But if the decision maker has no real doubt that its findings as to past events are correct, it is not bound then to consider whether its findings might be wrong. See Guo at 575‑576; Rajalingam at [60]‑[63] (Sackville J, North J agreeing).
As to the extent to which the Minister was required to consider the applicant's representations and make findings about them, both parties relied on CTB19. The respondent in that case sought revocation of the cancellation of his visa under s 501(3A) of the Migration Act for the reason, among others, that he would be killed if he were to return to his country of origin, Iraq. The Administrative Appeals Tribunal had made the following findings in relation to that (see at [6], original emphasis and citations omitted):
Although this Tribunal is inclined to believe that [the respondent] would be at some risk if returned to Iraq because of his ethnicity, his religious beliefs and his family history, it is not in a position to make any such definitive finding in the absence of more solid probative or evidentiary material to which it does not have access …
…
As explained, the considerations related to the protection of the Australian community and its expectations weigh against [the respondent]. Issues of [the respondent's] fears of harm if returned to Iraq, his close association with Australia and the impediments he will face on return weigh, to a greater or lesser extent, in his favour. The remaining considerations are neither here nor there in this calculus.
The Full Court summarised the principles concerning the requirement for a decision maker to consider representations that the non-citizen will experience harm if returned to their country of origin, as follows (at [15]):
(1)The task of a decision-maker under s 501CA(4) is to determine whether there is 'another reason' to revoke a cancellation decision;
(2)In discharging the duty under s 501CA(4), a decision-maker is required to have regard to a former visa holder's representations made in response to an invitation under s 501CA(3) as a whole. That is to say, viewed as a whole, the representations comprise a mandatory relevant consideration, but not every statement in the representations can be so described;
(3)Where a former visa holder makes a representation as to the harm that he or she may face if returned to their country of origin, the decision-maker needs to give consideration to it;
(4)There is a distinction between considering harm, or the risk of harm and hardship, on the one hand, and, on the other, considering whether or not the former visa holder is a person to whom non-refoulement obligations are owed: See DOB18 v Minister for Home Affairs (2019) 269 FCR 636 per Robertson J (at [185]);
(5)The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which it is expressed;
(6)The duty to consider representations made in support of revocation of a cancellation decision requires the decision-maker to engage in an active intellectual process with reference to those representations;
(7)The representations need to be 'significant and clearly expressed' ([GBV18 v Minister for Home Affairs [2020] FCAFC 17] at [32(d)]) or 'clearly articulated and substantial or significant': Omar (at [39]); GBV18 (at [32(e)]-[32(f)]) and [EVK18 v Minister for Home Affairs [2020] FCAFC 49] (at [14]). Put another way in [AXT19 v Minister for Home Affairs [2020] FCAFC 32] (at [56]) and applied by Bromberg and Mortimer JJ in [DQM18 v Minister for Home Affairs [2020] FCAFC 110] (at [27]):
[t]he greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the [decision-maker] to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the [decision-maker] to consider the claim.
(See also DQM18 per Snaden J (at [158]-[160])).
As Snaden J observed in Guclukol v Minister for Home Affairs [2020] FCA 61 (at [28]):
[t]he difficulty that often, if not always, arises in cases such as the present … is that determination of the consequences or circumstances that an applicant will face if removed from Australia … typically requires speculation. Often, it requires speculation upon imperfect or incomplete evidence, or to a degree that doesn't easily permit of definitive findings. …
(8)Whether consideration has been given to a former visa holder's representations must be judged in the context of the material placed before the decision-maker by, or on behalf of, the former visa holder: DQM18 per Bromberg and Mortimer JJ (at [36]);
(9)'Depending on the nature and content of the representations', the decision-maker may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate: Omar (at [39]). However, the duty to consider a representation does not necessarily require the making of a finding of fact: see Minister for Home Affairs v Buadromo (2018) 267 FCR 320 per Besanko, Barker and Bromwich JJ (at [46]) and Minister for Immigration & Border Protection v Maioha (2018) 267 FCR 643 (at [41]) per Rares and Robertson JJ;
(10)A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made by a court: GBV18 (at [32(g)], referring to Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352 per Griffiths, White and Bromwich JJ (at [48])); and
(11)Ultimately, each case turns on its own particular facts and circumstances.
At [29], the Full Court framed the question as whether the Tribunal had completed the task of review it was required to undertake. That question required the court to determine whether the Tribunal had appropriately considered the applicant's representations, 'where such "consideration" required an active intellectual process and engagement with the representations that was commensurate to the degree of clarity, certainty and detail with which they were expressed'.
In the particular facts and circumstances of CTB19, the Full Court decided that by proceeding on the assumption that it was not required to reach a 'specific' determination on the claim, the Tribunal failed to consider what findings it could have made: at [31]. It was not possible to tell from the passages from the Tribunal's decision quoted above the extent to which CTB19's claim that he would be killed weighed in his favour, which suggested that it had not been adequately dealt with or given the attention such a serious claim deserved. The question was not so much whether the Tribunal had to reach a definitive finding, but whether it had to actively explore the issue given its seriousness and the centrality to the claim, and weigh the claim in a meaningful way in its analysis of whether there was another reason to revoke the cancellation decision. That did not necessarily require a quantitative assessment but did at least require a meaningful qualitative assessment of the risk that CTB19 would indeed be killed on return to Iraq: see CTB19 at [31]‑[39].
Consideration
Characterising the Minister's findings
With respect, counsel for the applicant was correct to depart from the characterisation of the Minister's findings at paras 25‑36 that he put in his written submissions. The submission that the Minister made no finding at all was, as I have said, understandable. It is the literal meaning of the repeated formulation, 'I am unable to make a finding in relation to this claim'. But considered in context, I do not think that is the objective meaning of that phrase.
For example, in relation to the first claim, about fearing harm from the family of a man the applicant's father was said to have killed, the Minister recounts the applicant's evidence, and then notes that in the discussion of the claim in the protection visa decision, the delegate reached the conclusion that a number of discrepancies cast serious doubt on the claims. He describes some difficulties with the evidence before the delegate. His full conclusion (at para 27) commences by saying that 'the available information does not support' the relevant contention. It is after this where the Minister says: 'Accordingly, I am unable to make a finding in relation to this claim'. Understood in that preceding context, this is a statement that the Minister is unable to find what the applicant is asking him to find, namely that the events on which the applicant relied had occurred, or that the applicant would currently face the risk on return to Sudan as claimed.
It is true that the findings at paras 28‑30 in relation to the claim to fear retribution from the family of the victim of the assault in 2013 are expressed more briefly, and given that these findings were the subject of the most sustained attack by counsel for the applicant, it will be necessary to return to them. But the findings about the next claim, concerning the applicant's activity on Facebook, follow a similar pattern to the findings about the first claim. At para 32 of his reasons the Minister says that the applicant has not provided 'any evidence' of relevant posts he says he has made on Facebook. At para 33 he notes that the delegate also had not found any evidence of the posts the applicant claimed had been made. At para 34 the Minister then said: 'Given the lack of information or evidence, I am unable to make a finding in relation to this claim'. The reference to a lack of information or evidence bases the conclusion on the previous paragraphs and, taken in context and as a whole, is a finding that the applicant has provided no verification of his assertion that he made remarks on Facebook that may expose him to harm on return to South Sudan. It is a finding that the claims have not been made out.
The findings about the fourth claim, about forcible conscription, while briefer, also show that the Minister considered that the claim was not made out.
While each case must of course be considered in the context of its own facts, I read the Minister's unfortunate formulation of his conclusions in the same way that O'Bryan J read a similar formulation in Perera (at [57]). It is a 'finding about the risk of harm as required by the statutory task'; namely, that the claim had not been made out. See also EXT20 at [49] and [52]. It is likely that, within the bounds of the single decision, the Minister used the same formulation in the same way in relation to each of the claims. So, to return to the second claim about fear of harm from the family of the victim of the applicant's assault in 2013, it too is to be understood as a finding that the claim has not been made out. That follows from what the Minister appears to conclude (at para 29) is the applicant's failure to submit any evidence, other than his assertion that he will be harmed.
Where does that leave the alternative characterisation of the Minister's findings that counsel for the applicant ultimately adopted, namely: that the Minister found that the information he had did not support the claim sufficiently for him to be satisfied on the balance of probabilities that it had been made out? Counsel embraced this in contradistinction to another possible characterisation of the findings, to the effect that the Minister found that there was no evidence, or no evidence worth considering, to support each claim, leading to a categorical rejection of the claims. Consistently with the principles set out in Guo and Rajalingam which I have described (at [36] above), only the characterisation which counsel embraced would admit of the need for the Minister to go on to consider the probability that the relevant events had occurred or would occur.
In my view, however, the latter characterisation of the Minister's reasoning is the correct one. That is, the Minister categorically rejected the applicant's claims.
In relation to the first claim, concerning threats from alleged enemies of the applicant's father, the Minister recounted the applicant's evidence about the matter, which concerned an incident as far back as 2007. The Minister referred to a number of discrepancies identified by the delegate which 'cast serious doubt on these claims'. The Minister described the claim as arising out of the applicant's father's 'limited involvement in a family dispute many years ago'. Taken as a whole, the discussion of the claim displays a high degree of scepticism about its veracity. The Minister was not, in those circumstances, obliged to go further and weigh the probability that the claimed events (including the father's alleged murder at the hands of relatives of a victim of another murder, of which the father was wrongly charged by corrupt police) had actually happened, or the probability that the asserted harm in relation to this claim would occur.
The Minister's conclusions were reached with a similar confidence in relation to the other three claims where his reasoning is impugned. The basis of his conclusion in relation to danger from the family of the man the applicant assaulted in 2013 is that there is no independent corroborating evidence of the claim that the father of the victim holds a position of police commissioner in South Sudan. The implication is that evidence of the holding of a public office of that kind could have been readily obtained, but was not. Also, there was no evidence of threats from the family. The Minister's conclusion is thus to be understood as a categorical one. The applicant did not allege that the Minister's apparent requirement for independent corroboration in relation to this and other claims was itself an error: see Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474 at 485 but cf. Warnakulasuriya v Minister for Immigration and Multicultural Affairs (unreported, Finkelstein J, 6 April 1998) quoted with approval in MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441 at [91].
The same analysis applies in the case of the Minister's treatment of the third claim, concerning the applicant's Facebook activity. Proof of activities in such a public forum could be readily obtained, but had not been. The Minister's conclusion is expressed to be based on 'the lack of information or evidence' (para 34). This cannot be understood as a finding that the applicant may have engaged in the relevant activity on Facebook, but has not succeeded in establishing that to the balance of probabilities. It is a conclusion that there is no evidence worth considering to support the claim.
The Minister's treatment of the final claim on which his reasoning is impugned is briefer. He referred to the applicant's own statement that he would be forcibly conscripted into a rebel army and concluded (at para 36): 'Again, [the applicant] has not provided independent documentary evidence that he is likely to be conscripted by rebel forces'. The use of the word 'again' is significant here. Understood in the context of the Minister's treatment of the previous three claims, it is to be understood as a finding that there is a complete absence of persuasive evidence. Whether independent documentary evidence is something that would normally be expected from those in charge of a rebel army in South Sudan was a matter for the Minister to determine, not this court. The applicant made no submission that the Minister's reasoning on this point was illogical or that his conclusion was unreasonable.
The Minister's reasoning on these four claims was in places brief and compressed. He did not fully articulate his conclusions or say expressly how certain he was of them. The way he expressed his conclusions was unfortunate, as has been said. But I do not consider that he merely repeated the claims and rejected them, as the applicant submitted. It must be recalled that he was reaching a conclusion on four claims as part of six claims in all, where the two further claims he came to, after dealing with the first four, were found to have substance, and the sixth claim enough substance to engage Australia's non-refoulement obligations. Also, consideration of the material that the applicant put before the Minister in relation to these four claims shows that it was almost entirely comprised of brief written representations made by the applicant. Only the claim about fear of his father's enemies was articulated in any detail. The Minister's consideration of the claims was commensurate with the nature and extent of the evidence that was provided. His longer consideration of the applicant's final two claims (where his reasoning is not impugned) reflects a greater emphasis on them, consistent with his apparent view that they had more merit.
It is trite that the Minister's reasons are not to be read with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271‑272. In my view, the Minister's reasoning in relation to the first four claims, read as a whole and in context, reflected a high degree of scepticism about their veracity. Whether that level of scepticism was warranted was a question for the Minister and is not a question for this court. Evidently, the Minister did not place the assertions of the applicant in the category of credible evidence, something that was, once again, a matter for him. His conclusions were based on a view that there was an absence of credible evidence. It follows that the Minister did not commit any error when he omitted to weigh the probability that the events in question had happened or would happen.
As a result, this case is different to CTB19. There, the Tribunal had expressly and conspicuously failed to make a finding about the serious claim that the applicant would be killed on return to Iraq, and had failed to ascribe any definite weight to that concern. Here, the Minister rejected the four relevant claims and, in my view, did so categorically.
The Minister's consideration of the claim to fear danger from the family of the victim
The discussion above provides context and background to the further error alleged by the applicant, that the Minister did not engage in an active intellectual process with reference to his claim to fear harm from the family of the victim of the assault in 2013. As the summary of principles in CTB19 that is quoted above shows, the question must also be considered in light of the material concerning the claim that was placed before the Minister. That material may be summarised as follows:
(1)The sentencing remarks for the offence noted that the applicant and the victim had been friends and that each knew something of the background of the other.
(2)In the personal circumstances form that the applicant submitted in support of his revocation request, he gave as a reason for revocation, 'I will be kill[ed] by a victim family in South Sudan because my victim father is a police commissioner in South Sudan'.
(3)Various further representations were made by the applicant in writing to the Minister and to the Department's National Character Consideration Centre (for example at pages 85, 96, 112 and 149 of the court book). The nub of these representations was that he would be killed by the victim's father or police officers in South Sudan because the father was a police commissioner there. A representative example of these representations appears in a letter to the Minister (at page 92 of the court book), where the applicant said:
I will also be kill by my victim family because my victim's father is a police commissioner in South Sudan. He can send his corrupt police and I might be kill. I am not even safe here in Australia because my victim relatives are seeking a revenge on me here in Perth. However, I know Australia police can protect me by issuing them a restraining order. In South Sudan, I would be kill easy because no good security over there and anyone with a gun can take a law into his own hand and shoot me dead.
(4)The delegate who determined the applicant's protection visa application made the following relevant findings:
The applicant asserted during the [Protection Visa] interview that he had received threats from his victim's family. When the applicant was asked to elaborate, he indicated that one of the victim's family members had looked at him in a threatening way when he was in court and his friend told him that the victim's family were going to get him.
The applicant has not provided any evidence to support his claims that his victim's father is a police commissioner in South Sudan. I note the judge's sentencing remarks indicate the applicant's victim was known to him. Therefore, it is plausible that the applicant would know details about his victim's family including his father's status in South Sudan.
…
I accept that members of his victim's family in South Sudan would seek to take revenge on the applicant if he returns to that country.
On that basis, the following observations can be made:
(1)The claim was clearly articulated. However, little detail was provided, and there was no independent corroborating evidence of any kind.
(2)With the exception of the claim made to the delegate that one of the victim's family members had looked at him in a threatening way in court, and the hearsay comment of the applicant's friend, the applicant provided no evidence of any threats having been made to him, whether in Australia or elsewhere. That is, he did not even assert that he had received threats, let alone provide independent evidence of any. There was no assertion of threats coming directly or indirectly from the police commissioner.
(3)The claim, as repeated throughout the materials, was consistently based on the proposition that the victim's father was a police commissioner in South Sudan. It was that person's position as police commissioner which, the applicant said, caused the applicant to fear harm if he were to return to South Sudan.
(4)However the applicant did not even name the police commissioner, let alone say where he was stationed or which police force he was a commissioner of. Nor did he provide any independent corroboration of the person's position.
Judged in light of those matters, and in the context set out in the previous section of this judgment, the applicant has not persuaded me that the Minister failed to display active intellectual engagement in relation to this claim. First, the claim is expressly raised in the Minister's reasons and, as I have found, rejected. This is not a case where a claim is not mentioned at all in the decision maker's reasons and the court has to decide whether that is because the decision maker considered it insufficiently important to mention. Second, it was one of several claims that the Minister considered, and rejected, before coming to two claims which, in the Minister's view, had more substance and were given lengthier consideration. Judged in that context, the relative brevity with which the claim was treated is likely to reflect the relative lack of cogency it had in the Minister's view. That is, the Minister devoted more space to claims he considered had more merit. Third, and following from the second point, the extent of discussion of the claim in the reasons is commensurate with the level of detail about it that the applicant provided in his representations, including the extent of the evidence as to threats the applicant had actually received from the victim's family. Fourth, it was open to the Minister to form the view that the claim hinged on the assertion that the victim's father was a police commissioner in South Sudan and to determine that, in the absence of evidence of that matter, the claim had not been made out. Evidently, that was the course of reasoning the Minister did take in relation to the claim. The Minister specifically referred to a lack of 'any evidence of threats or other evidence of danger to [the applicant] from this source' (emphasis added). The Minister was focussed on the evidence that the alleged police commissioner was the source of threats or danger, and dismissed the claim because there was no independent evidence of that person's existence and positon, let alone that he had made threats or posed a danger to the applicant.
That course of reasoning was open to the Minister and, in all the above circumstances, reflected active intellectual engagement with the claim. As brief as the discussion of the claim was in the reasons, it displays consideration of what it can be inferred the Minister took to be the key factual question, and a rejection of the claim on the basis of that consideration.
Counsel for the applicant submitted that it was inherently plausible that family members of the victim would want revenge, given what the applicant had done to him, so it was a claim that had to be dealt with. That may be so, and indeed the delegate found that members of the applicant's family would seek to take revenge on him if he returned to South Sudan. But the Minister's obligation here was to display active intellectual engagement in relation to the claim the applicant made, which was a specific one to fear harm on return to South Sudan because of the position of his victim's father as a police commissioner. In my view, the Minister did engage with that claim and rejected it.
Conclusion
The applicant has not established that the Minister fell into error in any of the ways alleged. That being so, it is not necessary to consider any question of materiality.
The application will be dismissed. There will be an order for the applicant to pay the Minister's costs of the application, assessed on a lump sum basis.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. Associate:
Dated: 22 November 2021
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