MZZMA v Minister for Immigration & Anor
[2015] FCCA 125
•23 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZMA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 125 |
| Catchwords: MIGRATION – Review of Independent Merits Review – refusal of a protection visa – failure to apply the correct test – relief granted by declaration of legal error. |
| Legislation: Migration Act 1958 (Cth) |
| Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 BZADW v Minister for Immigration and Border Protection [2014] FCA 541 MIEA v Guo (1997) 191 CLR 559 Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 41 ALD 1 S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 9 Leg Rep 2; (1996) 70 ALJR 568; (1996) 41 ALD 1 |
| Applicant: | MZZMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | INDEPENDENT PROTECTION ASSESSOR |
| File Number: | MLG 806 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 2 July 2014 |
| Date of Last Submission: | 2 July 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 23 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Levine of Counsel |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondents: | Mr Mosley of Counsel |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Court declares that in recommending to the Minister that Applicant MZZMA was not a person to whom Australia had protection obligations, the Second Respondent erred at law.
The First Respondent pay the Applicant’s costs fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 806 of 2013
| MZZMA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Independent Protection Assessor made on 15 June 2013 which affirmed a decision of a delegate of the First Respondent to refuse the Applicant a Protection (class XA) visa.
The Applicant was born in Kuwait. He is of Bedouin ethnicity and Shia Muslim faith. The Applicant entered Australia as an unauthorised maritime arrival on 28 January 2011.
On 21 May 2011 the Applicant lodged his application for a protection visa and was interviewed by a delegate of the Minister (CB 151-175).
The Applicant claimed to fear persecution on four grounds: by reason of his ethnicity; religion; actual or imputed political opinion; and, membership of particular social groups, namely a ‘Bidoon’ (a group that are denied citizenship in Kuwait) in Kuwait (CB 57 and 88).
Presently the words Bedouin, Bidoon, Bidoun, Bidun or Badoun are often used in English to refer to the Bidoon of Kuwait. Only the word Bedouin (from the French) appears to have been included in the Oxford English Dictionary. In these reasons I will use the word ‘Bidoon’ to refer to the social group in Kuwait. I have not, however, altered the spelling used in the quoted passages.
On 30 August 2011 a delegate of the First Respondent refused to grant the Applicant the visa (CB 175).
The Assessor’s Findings
The Applicant presented the following information to the Assessor (CB 234):
24. …
“I am 17 years old male. I was born in Dawha in Kuwait… and as a badoun. I have no birth certificate, no identity documents were issued to me. I was not able to be immunised since I am a badoun. I was not allowed to enrol in any school, not even a private school. I was not allowed to receive any treatment in the hospital. There was no private hospital on Kuwait. Whenever we get sick, we can only attend the medical clinic, which cost us an arm and a leg. The medical clinic can only treat simple symptoms. They don’t have any theatre facility for any operation since we are not allowed to have treatment in the hospital, and medical clinics are not equipped for the operation.
“I was not allowed to work legally. If I get caught by the Kuwait police for working illegally, I would be detained and imprisoned. The police would require the Kuwaiti citizen to be my assurance for my release. When I was around 10 years old, my dad was unemployed, and we were struggled to survive. It was illegal to sell fruit and things on the street. I could not rent the vegetable and fruit stall in the market because I am a bedoun. I had no choice but selling the vegetable and fruit on the street. The 2 council came in, took me to Sulaibkhat police station. I was detained in a single cell in the police station. I was only 10 years old, and was very scared to be alone in that cell. My family was very concerned about my welfare but unable to help me until my father found the Kuwaiti assurer for my release. After spending 1 week alone in the cell at the police station, my father brought in the Kuwaiti man, named Sood Al-Rashidi, as my assurance. He paid 10 dinar as the fine before I was released.
“I also was not allowed to be issued with any certificates such as marriage certificate, driving license. When Badoun like myself die, we will not be issued the death certificate. I want to fall in love and get married and have normal life one day. But no parents of any girls would let me married their daughters since our future children would inherit the status of badoun. In Kuawait, if one of the parent is Badoun, their children would become Badoun.
“I was not allowed to join any social club because I am a badoun. I was keen in joining Judo club, but not allowed to join the Judo club because I am badoun. I was forced to train privately. I was trained about 3 years. As I was not allowed to join the club, I was not allowed to be graded and participated in any Judo competitions. Since I was not allowed to progress in becoming a Judo Professional, I gave up my dream; and quit the Judo training… I paid the smuggler around 1,800 dinar to organise the trip to Australia. I borrowed 1,000 dinar; the rest are the lifetime savings from the whole family’
When asked what he thought might happen to him if he returned to Kuwait, the claimant said: “I would be imprisoned for leaving Kuwait; and by seeking the refugee status in Australia, I have tainted the reputation of Kuwait government. I would face the same persecution I have suffered all my life. I was denied, school, medical services, and employment… The Kuwaiti government have persecuted me all my life because I am stateless bedoun. The Kuwaiti government denied that I am existed in Kuwait, I am the person with no identity. … the authority is the main persecutor. There is not safe place in Kuwait for me since the persecutor is the government itself.”
Findings of the Assessor
The Assessor found that:
99. In this case, the claimant has admitted to having been untruthful when discussing his age. He claimed to be an unaccompanied minor when he was not, and he continued to repeat the claim even when confronted with the truth by departmental officials. I accept from my experience as a Reviewer and Assessor over the past two years that many claimants say they are unaccompanied minors because they believe there are benefits in so doing. I also accept that some who are underage overstate their age in the belief that they will get quicker access to work rights. If this was the only area where the claimant's credibility was in question, I would not regard the matter as serious. In this case, however, the claimant has not been truthful about his application to apply to enter the UK and his decision to withdraw that application, even when confronted with evidence by departmental officials. I also found the claimant not to be credible when discussing the issue of his documented or undocumented status in Kuwait, his family situation, his claim to be illiterate and to have not received an education, and his fear of persecution in Kuwait. I do not accept the submission from his adviser that the claimant's version of events put forward in his interview with me is the truthful version, or that I should make a finding that the claimant has now decided, as a last resort, to be honest about his claims.
100. I accept that the claimant is a Bidoon from Kuwait and that he is a Shia Muslim. At interview, the claimant said that his father had never worked. I asked how the claimant's family had survived with no income from any source. The claimant said that 'God is great'. He said that his family had little money, so they ate little. He later said that they ate one meal a day. When the claimant said that none of his brothers were working, I queried again how the family could survive on no income. I said that I did not understand how this could be. The claimant then said that his father had his own car. He said that he drove people for money but that it was risky if the police caught him. He said that his father took great risks driving as he was a Bidoon and so subject to being arrested for driving for money. He said his father had been arrested several times while trying to earn a little money. He said his father did this to support his family. I asked how the claimant's father could afford his own car. The claimant said that his grandmother had sold some sheep. He added that this was back in the 1960s. The claimant said that his father had been in ill health and so was unable to keep driving. I do not accept that it would have been possible for the claimant's family to survive without income or support from friends. I note that the claimant eventually provided an explanation after questioning at interview. He said that his father had owned a car and had worked as an unofficial taxi driver. I accept that such activity is common in the Middle East. I do not accept that the claimant's father was arrested on several occasions for being a Bidoon and for driving without a taxi licence although, if he did indeed drive an unofficial or private taxi, I accept that he may well have been stopped by police from tin1e to time.
101. The claimant said that he had been born in a hospital. At interview, I asked if the health care was free. The claimant said it was difficult for his mother to be admitted into hospital. I accept that the claimai1t was able to access health facilities in Kuwait. I accept that this is consistent with the rights documented Bidoon have in Kuwait (paragraph 94 above).
102. I note that when asked about where he and his family lived that the claimant said the house was so small it was called the house of mice and that it was a rented house. When asked how the family could afford the rent, the claimant said that the family received some money because his brothers occasionally sold vegetables on the street. I do not accept that this is credible. I find the claimant was trying to establish a persona as an undocumented Bidoon in Kuwait. Overall, I find that the claimant was not credible when discussing his upbringing.
Grounds
The Applicant relied upon two grounds as follows:
1. The Second Respondent (“the assessor”) committed an error of law by failing to consider each of the following integers of the applicant’s claim:
i.Whether the Applicant was denied Kuwaiti nationality for a Convention reason; and
ii.Whether the denial of Kuwaiti nationality was capable of constituting or having the consequence of exposing the Applicant to a risk of serious harm.
2. The assessor fell into legal error my misconstruing the “real chance” test in its consideration of whether the Applicant was at risk of serious harm on the basis of his future expression of a political opinion and/or activism in Kuwait.
Ground One
This ground concerns whether the Assessor considered all of the integers of the Applicant’s claim, namely whether the denial of Kuwaiti nationality was for a convention reason, and whether this denial constituted or exposed the Applicant to a risk of serious harm.
The Assessor found that:
109. The claimant said at interview that he had not received a birth certificate, he was not able to study, he said that he was kicked out of school because he was a Bidoon and he was not able to work because he was a Bidoon. The claimant said that as a Bidoon he could be charged with anything in Kuwait. He said all these things had happened to him. As noted above, I do not accept that the claimant is an undocumented Bidoon. I do not accept as credible his claim that he was not allowed to study because he is a Bidoon, or that he was forced out of school because he was a Bidoon, or that he was unable to work because he is a Bidoon. I find that the claimant is a documented Bidoon. I accept the published information that documented Bidoon are subject to some discrimination in Kuwait. This includes a denial of full Kuwaiti citizenship, difficulties in obtaining official certificates, including birth, marriage and death certificates and driver licences. I accept that not being able to access such certificates is discriminatory and that it makes life cumbersome. I also accept that the claimant is resentful that he is not accorded recognition as a Kuwait national. I do not accept that for documented Bidoons, such as the claimant, this discrimination prevents them from receiving health care, educational opportunities or employment opportunities. I am not satisfied, on the basis of that information, that this discrimination amounts to serious harm. I find that the claimant did not have a well-founded fear of persecution for the essential and significant reason of his race as a Bidoon or because he is a member of the particular social group ‘Bidoons’ or ‘Bidoons in Kuwait’ or ‘documented Bidoons in Kuwait’ or ‘stateless Bidoons in Kuwait’, or any similar formulation at the time that he left Kuwait. I have considered whether the claimant would face a real chance of persecution for those same reasons were he [to] return to Kuwait now or in the reasonably foreseeable future. I accept that the claimant, as do other documented Bidoon, would still face discrimination, as just described, in Kuwait. I am not satisfied that there is a real chance that this discrimination would be such that it would amount to serious harm for the purpose of s. 91R(3). I am satisfied that the claimant does not have a well-founded fear of persecution for reason of his race, as a Bidoon, or his membership of the particular social groups ‘Bidoons in Kuwait’ or any similar formulation should he return to Kuwait now or in the reasonably foreseeable future. [emphasis added]
Similar claims were examined by the Federal Court in BZADW v Minister for Immigration and Border Protection [2014] FCA 541, which also involved a stateless Bidoon from Kuwait. Dowsett J made the following findings (at [21]):
21. At paras 22 – 40 of his outline of argument the appellant makes a number of general assertions concerning the second respondent’s conclusions and reasoning. First, at paras 22 and 23, he disputes the alleged implication that recognition as an illegal resident is a right. The second respondent certainly concluded that as a documented Bidoon, the appellant had access to a wider range of government services than would the undocumented Bidoon. I doubt very much whether the second respondent intended to imply anything more. She proceeded upon the basis that in this case, denial of citizenship was not itself persecution, a proposition which I consider to be plainly correct. In other cases the denial of citizenship by reason of nationality, race, religion or membership of a social group may constitute persecution. However that cannot be the case where the relevant social group is identified by reference to the fact that its members are stateless.
In this case the Applicant failed on the question of whether he was at risk of serious harm. In circumstances where the Assessor did not find the Applicant at risk of serious harm, the Applicant could not succeed and therefore there was no need to turn to the Convention nexus question. Although, in this case, it appears implicit in the reasoning that the Assessor accepted the Convention nexus and was focused upon the harm question. In this respect ground 1(a) does not appear to be made out.
In his submissions, the Applicant said that:
[20] Further, the Assessor failed to consider whether the denial of nationality was itself capable of constituting serious harm or had the consequence of exposing the Applicant to a risk of serious harm. In particular, it was specifically put on behalf of the Applicant that “Kuwaiti law gives security officials wide discretionary powers to deport non-nationals” and that “the Ministry of Interior has continued to issue deportation orders” with respect to Bedouins. It was also put in a separate submission on behalf of the Applicant that “Kuwaiti authorities assert that many Bidoon possess foreign nationality and should be deported” and “use deportation jails for such individuals.” The Assessor did not consider whether the denial of nationality to the Applicant had the consequence of exposing the Applicant to a risk of harm in the form of forced deportation. As such, the Assessor failed to consider a specific integer of the Applicant’s claim.
In responding to this ground, the Minister said that:
[43] The claim that the applicant now seeks to articulate, was not one which the assessor was required to consider. At no point did the applicant ever claim that he had a fear of persecution for the reasons of being denied Kuwaiti nationality. Rather, the discriminatory treatment the applicant said he suffered in Kuwait, was on the basis that he was an un-documented stateless Bidoon.
The Applicant relies on a passage in the country information that reads:
The threat of expulsion is ever present in the lives of Bidoons. Kuwaiti law gives security officials wide discretionary powers to deport non-nationals. Despite the fact that Kuwaiti courts have ruled that Bidoons may not be deported, the Ministry of Interior has continued to issue deportation orders-24,000 orders since liberation, according to official figures. The overwhelming majority of these are “administrative deportation” orders, explicitly exempted from judicial review. Most of these orders have not been carried out, because there is no country to which Bidoons can be deported. However, an expulsion order means that the person named in it is subject to arrest and detention at any time they encounter a security checkpoint, thus inhibiting his or her movement…
However, as set out in the submissions to the Assessor, this information is over 16 years old (see CB139). The subsequent references in the submissions of the Applicant to the Assessor set out details of alleged discrimination, but make no reference to forced deportation. When the balance of these submissions is read, there is no fear of deportation articulated.
In post hearing submissions, the Applicant set out:
[The Applicant] explained in his IMR interview how his father had been repeatedly arbitrarily detained for driving an unregistered car. [The Applicant] himself experienced detention when he was young for selling vegetables on the street without permission, and one of [the Applicant’s] brothers is currently detained, though [the Applicant] is unsure why. We submit that Bidoon are particularly vulnerable to arbitrary detention at the whim of Kuwaiti officials due to their undocumented status, and the widely held belief that they are foreigners.
…
Furthermore, Kuwaiti authorities assert that many Bidoon possess foreign nationality and should be deported. It is believed authorities use ‘deportation jails’ for such individuals. However, since they are not accepted in to their alleged countries of nationality; many face indefinite detention. Further arbitrary detentions are mentioned in the section below.
However, in this case, the Applicant was found to be a ‘documented’ Bidoon. To the extent that this integer was raised it appears to relate to undocumented Bidoons. The Applicant was found to be a documented Bidoon, therefore this integer does not arise on the facts as found.
In the case before me the Assessor has concluded that the Applicant is a documented Bidoon and consequently faces discrimination, but not a real risk of serious harm. The Assessor has specifically listed the Applicant’s entitlements as a documented Bidoon and found that the discrimination he faces, including the denial of citzenship, did not constitute serious harm. The Assessor turned their mind to these issues and made findings, which appeared open to them. I do not accept that the Assessor has made any judicially reviewable error in this regard.
Ground Two
The Applicant’s second ground alleged that the Assessor erred by misconstruing the “real chance” test in the consideration of whether the Applicant was at risk of serious harm on the basis of his future expression of a political opinion or activism in Kuwait.
In considering the actual or imputed political opinion of the Applicant, the Assessor noted the following:
114. In her submission of 4 May 2012, the adviser submitted that the claimant met the Refugee Convention definition on the following grounds:
"• His ethnicity - Bidoon, being of Bedouin origin from Nomadic tribes in the region;
• His religion - Shi 'a Islam;
• His membership of the particular social group – stateless Bidoon;
• His political opinion – critical of the Kuwaiti government's treatment of Bidoon;
• His imputed political opinion - due to his ethnicity; his religion and his membership of the particular social group of stateless Bidoon ".
115. I note that this means that there are claims now being made about the claimant's political opinion and imputed political opinion and about his religion. There was no expansion of the claims made in the body of the submission provided to me. I will consider these claims with reference to the discussion at interview with me.
116. At interview, I asked the claimant if had ever attended any demonstrations. He said that he would have liked to do so. He said that the demonstrations are peaceful. The claimant provided a photograph that he said was of a demonstration in Kuwait by Bidoonds which, he said, featured his young brother. I asked when and where the photograph had been taken. The claimant said that he did not know. He said sometime this year, probably January or February He said that he did not know the source of the photograph. I said that there was nothing, except the work of the claimant, to indicate that his brother was one of the demonstrators. The claimant said the person depicted looked like the claimant. The claimant said the demonstration portrayed was one of many demonstrations by Bidoons. He said that they were young people. He said that police even destroy houses. He said they hit women and elderly people. The claimant said that no one defends the Bidoons; no organisation, no one will defend them, only God. He said that none of the demonstrators have identity documents, so what else could they do but demonstrate. I said that I noticed that there were no police shown in the photograph he had shown me so I presumed his brother had returned home from the demonstration safely. The claimant said nothing had happened to his brother but he still has concerns about what will happen to his brothers in the future. Given my overall difficulty with the claimant’s credibility, I do not accept his evidence of his brother’s involvement in demonstrations to be credible.
117. I accept that the claimant has views about the political situation in Kuwait but I do not accept that the claimant, who has never attended a demonstration, would have any political profile with the Kuwaiti authorities based on his past history. I have found that the claimant is a documented Bidoon from Kuwait. I do not accept that being a documented Bidoon would of itself result in the claimant being imputed with a political opinion in opposition to the Kuwait authorities should he return to Kuwait now or in the reasonably foreseeable future. I have also considered whether the claimant is likely to be politically active, if he were to return to Kuwait in the future and whether, if he was not active, this would be for reason of his fear of being persecuted if he did become active. I accept that the claimant would continue to resent his status in Kuwait I do not accept that the claimant would necessarily transfer that resentment into political activity. Nor do I accept, from my observation of him at interview, that the claimant would be politically inactive solely because he was afraid of being persecuted. I find that there is not a real chance that the claimant had a well-founded fear of persecution for reason of his political opinion or imputed political opinion because he is a Bidoon or a documented Bidoon in Kuwait or because he is a member of the particular social group ‘stateless Bidoon in Kuwait’ should he return to Kuwait now or in the reasonably foreseeable future. [Emphasis added]
The ‘real chance’ test was discussed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, where it was found that a well-founded fear of persecution could be established even where the possibility of that persecution occurring is less than 50 percent (see further MIEA v Guo (1997) 191 CLR 559 at 572). When considering this test one must bear in mind the comments made in Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 41 ALD 1:
22. It is highly desirable, in the application of an international convention, designed to have global application, that courts in principal countries of refuge should, if possible, adopt a similar approach. When the matter came before this Court in Chan, a slightly different verbal formula was adopted by the Court, viz that the applicant should show "a real chance" of persecution. This formulation was preferred, according to Mason CJ (75):
"because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v The Queen (76). ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin."
Drawing on the High Court’s findings in S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71, Counsel for the Applicant made submissions that the Assessor had not applied the correct test in that they examined the likelihood of the Applicant becoming politically active, but failed to consider the reasons why the Applicant would not be politically active.
The relevant evidence appears at pp.32-33 of the transcript of the Review:
IPA: Did you ever go to any demonstrations while you were living in Kuwait?
A: No, but I wished that I could go in a demonstration. Those youth are weak, they are gathered after Friday prayer and they walk in a peaceful demonstration and they have no one to assist them, or to protect them. That is why at that time I couldn’t go to the demonstration.
IPA: Ok. I notice there are no police or anything in that photograph. So I am presuming that nothing happened to your brother as a result of that demonstration?
A: Um, nothing happened to him. Thanks god, and the other one, I don’t wish anything to happen to him and I always ask him not to go in the demonstration I am scared that they arrest him. I have sent other photos which shows that people they get hit, they get killed, not only this photo.
IPA: But those photos. Are they the photos taken at the very large demonstration last year?
A: I think they demonstrated this year as well on the 13th of the first and the 13th of the second.
IPA: There was a very large one last year, wasn’t there?
A: Mmm.
IPA: Yep. Ok. Thank you. I have no other questions. Is there anything else you want to tell me before we finish the interview today?
The Applicant points to the Assessor’s use of the words ‘necessarily transfer’ and ‘solely’ as they appear in para.117 (quoted above) as showing that the wrong test was applied. Counsel for the Minister responded by pointing to the often referred to quote of Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 [at 24] that:
The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.
Counsel for the Minister then framed his argument as follows:
31. On a fair reading of the finding, the assessor was simply concluding that the applicant would not be compelled or driven to be politically active. A fortiori, first in light of the fact that he had no history at all of political activity in the past in Kuwait. Secondly, as it was not claimed in the post interview submission in which a political opinion claim was first agitated by the applicant’s advisors, that he would be politically active (CB 260-261, [112]-[115]).
32. Moreover, even were there a doubt, which it is submitted there is not, that reading is confirmed by the assessor’s immediately succeeding sentence [117], in which he addresses the reason that he considers the applicant would be “politically inactive”. That statement of itself confirms that the assessor did not accept that the applicant would be politically active on return to Kuwait.
33. Further, if the assessor had accepted that the applicant would be politically active on return, he would then have gone on to consider if that gave rise to a fear of persecution. As the assessor did not do so, he proceeded on the basis that he had indicated, that is, if he rejected the claim to political activity, whether, “if he was not active, this would be for reason of his fear of persecution if he did become active.” The completion of that foreshadowed process, additionally confirms that the assessor did not accept that the applicant would be politically active on return to Kuwait.
34. Finally, the applicant never claimed that he would be politically active on return. His response to a question whether he would refrain from expressing his political opinion because of a fear of persecution.
35. The applicant further contends that the assessor applied a “sole reason” test to the question of whether he would refrain from expressing his political opinion because of a fear of persecution.
36. First, the assessor did not articulate such a test, nor did he state that such a test was being applied in the assessment. The assessor stated that he had considered “…whether, if [the applicant] was not active, this would be for reason of his fear of being persecuted if he did become active.” The assessor’s subsequent use of the adverb ‘solely’, in conjunction with the rejection of the proposition, was on a fair reading simply an explicit rejection of that as a reason, founded as the assessor stated on his observation of the applicant at interview. The assessor used ‘solely’, in the sense that he did not consider that the applicant would be politically inactive simply or merely because of a fear of persecution.
The Assessor looked to the Applicant’s past conduct and found that the Applicant’s claims were not credible. The only additional evidence to indicate that the Applicant may change his behaviour were four short sentences at the end of the transcript, where he mentions that he would like to become politically active. The Assessor found that the Applicant would not be politically active in the future; a finding that is hardly surprising given the paucity of evidence before the Assessor and the previous findings on the Applicant’s credibility. A careful reading of para.117 disclosed that the Assessor did not apply the correct test when making the finding as to whether the Applicant’s future political inactivity would be motivated by a fear of a real risk of persecution. The other findings that were against the Applicant did not dispose of this question. Even if one views the Applicant’s case as weak (given the other findings) it must be considered using the correct test.
I have considered whether the reasons are just an example of infelicitous language, however, in my view, the phrases go beyond what was contemplated by Kirby J in Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 41 ALD 1.
I therefore find that this ground has been made out.
Conclusion
As the Applicant’s case has established a ground for judicial review, I must therefore allow the application.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 23 January 2015
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