S230 of 2003 v Minister for Immigration - [2007] FMCA 689

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S230 of 2003 v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 689

MIGRATION – Protection visa – well grounded fear of persecution – evidence.

MIGRATION – Jurisdictional error – failure to consider relevant question – obligation on Tribunal to consider argument not advanced.

Migration Act1958; ss.5, 36, 47, 65, 415, 496

Yong v MIMA (2000) 62 ALD 687; [2000] FCA 1391
Kopalapillai v Minister (1998) 88 FCR 547
Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288
Craig v The State of South Australia (1995) 184 CLR 163
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Abebe v Commonwealth (1999) 197 CLR 510
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90
MIMIA v VFAY; MIMIA v SHBB [2003] FCAFC 191
Ramirez v MIMA (2000) 176 ALR 514; [2000] FCA 1000
SBAB v MIMA [2002] FCAFC 161
Gnanasambanther v MIMA[2000] FCA 1911
NABE v MIMIA (2004) 144 FCR 1
Re MIMIA; ex parte Applicant S20/2002 (2003) 77 ALJR 1165
Htun v MIMIA (2001) 194 ALR 224
Chan v MIMIA (2000) 106 FCR 157
Dranichnikovv MIMIA (2003) 197 ALR 329
SGBB v MIMIA (2003) 199 ALR 364
WAKZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1065
S395/2002 v MIMIA (2003) 203 ALR 112
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
WAIJ v MIMIA (2004) 80 ALD 568
Thuraisamy v MIMIA [1999] FCA 1632
SZATG v MIMIA (2004) 215 ALR 358
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; (1999) 56 ALD 43

Applicant:

APPLICANT S230 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2587 of 2005

Judgment of:

Wilson FM

Hearing date:

1 September 2006

Date of last submission:

5 September 2006

Delivered at:

Brisbane

Delivered on:

11 May 2007

REPRESENTATION

Counsel for the Applicant:

Mr Zipser

Solicitors for the Applicant:

Juris Australia

Counsel for the Respondent:

Mr Riley

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

That the name of the Respondent be amended to Minister for Immigration and Citizenship.
That the application filed 14 September 2005 be dismissed.
That the applicant pay the respondent’s costs of and incidental to the application to be taxed, if not agreed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2587 of 2005

APPLICANT S230 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal handed down on 28 April 2000. That decision affirmed a decision by the delegate of the Minister not to grant a protection visa to the applicant. By his application, filed 14 September 2005, the applicant seeks writs of prohibition, mandamus and certiorari on the grounds that the decision of the Tribunal was vitiated by ‘jurisdictional error’.
Notwithstanding a Notice of Objection to Competency filed by its solicitors, the respondent took no issue regarding the delay between the decision of the Tribunal and the filing of the application to this Court. The applicant had been a member of a class action that was concluded by orders made in the Federal Court on 25 August 2005.
The applicant relied on two grounds as manifesting jurisdictional error on the part of the Tribunal:
a)the Tribunal failed to consider a relevant question, namely whether the applicant would continue with his political activities if he were to return to Iran, and if so, whether he had a well grounded fear of persecution as a result;
b)the Tribunal erred in its consideration of whether the applicant was in genuine fear of persecution if required to return to Iran.
The applicant, a citizen of Iran, was born in 1980. The events that led to him leaving Iran occurred whilst he was still at school. He initially travelled to Germany and remained there between 15 December 1996 and 2 March 1997. The applicant arrived in Australia on 3 March 1997. He applied for and obtained a tourist visa, which was subsequently extended. He applied for a protection visa on the grounds that he was a “refugee” on 26 November, 1997.
Section 36 Migration Act1958 (“the Act”) provides for a class of visas known as protection visas. The Minister is required to consider an application for a protection visa under s.47 of the Act, and, if satisfied of various matters stipulated by s.65 of the Act, to grant such a visa. The nature of the power to be exercised pursuant to s.65 was explained by Goldberg J. in Yong v MIMA (2000) 62 ALD 687; [2000] FCA 1391.
In the present case, the Minister delegated his powers under s.496 of the Act. That delegate decided on 17 February 1998 not to issue a protection visa to the applicant.
By application dated 10 March 1998 the applicant applied to the Tribunal to review the decision of the delegate. The Tribunal exercised all the powers and discretions conferred on the original decision maker: s.415 of the Act.
Both at the time of making the application for a protection visa, and at the time of filing an application for review to the Tribunal, the applicant was represented by a firm of solicitors and migration agents. Those solicitors and migration agents ceased acting for the applicant in August 1998, and by the time the Tribunal conducted a hearing on

15 February 2000 the applicant was unrepresented. However, during the time that the applicant was legally represented, statements were prepared on his behalf which sought to articulate his claim to be entitled to a protection visa.
A critical requirement to be satisfied on a successful application for a protection visa is that the applicant be a non-citizen of Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The applicant is a non-citizen, as that term is defined in s.5(1) of the Act. Reference to the Refugees Convention is to the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951. This was amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967, referred to as the Refugees Protocol. Article 1A(2) of the Refugees Convention defines a “refugee” as:
“any person who . . . owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”
To achieve a protection visa, the applicant had to satisfy the Minister that he was a refugee as defined. Put more correctly, a determination made pursuant to the Act and Regulations is a decision as to satisfaction that the criteria for the grant of a protection visa have been established (formerly a decision as to the status of the applicant as a refugee); it is not a raw determination of refugee status. Although a decision as to "satisfaction" is not immune from review, as the Full Court said in Kopalapillai v Minister (1998) 88 FCR 547:
"it is not to be overlooked that the criterion reflects a decision to make the satisfaction of an administrative decision maker, and not the satisfaction of a judge or a court, the determinant of eligibility for the grant of a protection visa."
The Tribunal, like the delegate, had to determine the applicant's claim for a protection visa in light of the facts and circumstances at the time of the decision: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288.
The applicant contends that the decision of the Tribunal is infected by jurisdictional error. A general description of what constitutes jurisdictional error is to be found in the decision of Brennan, Toohey and McHugh JJ in Craig v The State of South Australia (1995) 184 CLR 163 at 179:
"If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
See also Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
It will normally only be the case that the Tribunal has made a jurisdictional error by failing to address an issue where the matter is raised by the evidence and the applicant requests the Tribunal to address the matter. As the principal submission on behalf of the applicant before this Court was that the Tribunal had failed to consider the question of whether the applicant would resume his political activism if he returned to Iran, it is necessary to look at what information the applicant put before the Tribunal.
In answer to question 36 on his application for a protection visa, when asked “Why did you leave that country” the applicant responded “I feared being subject to further persecution by the Iranian security forces. Refer to statement of claims for further details”.
In answer to question 37 “What do you fear may happen to you if you go back to that country” the applicant responded “I fear being persecuted. Refer to personal statement of claims”.
In answer to question 39 “Why do you think they will harm/mistreat you if you go back” the applicant said “I think I will be harmed because I will always be suspected of being a supporter of the leftist youth group Peshgam”.
In his agent’s submission to the Department it was contended that, despite his age, the applicant was sufficiently mature to have developed a subjective fear of persecution and was able to express those fears subjectively. It was submitted by the applicant that a denial of education would amount to persecution where it is imposed in a discriminatory manner as a form of political punishment.
In his accompanying statement the applicant said:
·Whilst at school he became involved, with a friend, in the distribution of pamphlets for a political organization “Peshgham”
·After the New Year holiday, when he returned to school he was taken by persons, tortured, interrogated and detained for two months
·When he returned to school after detention he was expelled. This meant he could not enroll in a decent school in Iran nor continue tertiary education
·He left Iran so he could continue his education
·He did not apply for refugee status in Germany because there were many Iranians in Germany, many of whom were in contact with the Iranian government
·He did not apply for refugee status on arrival in Australia because he had a student visa
·“My situation would be a miserable one if I shall be forced to return to Iran much to my great desire to study I will not be permitted to go through tertiary education or be allowed into government jobs or positions”.
On 24 March 1998 the applicant submitted a further statement to the Tribunal, which expanded on why he had not made earlier application for refugee status in Germany or in Australia.
On 5 April 2000 the Tribunal made a decision, which was handed down on 28 April 2000. The Tribunal affirmed the delegate’s decision not to grant a protection visa.
Although in its decision, particularly at AB86, the Tribunal makes no reference to the applicant’s statement of 24 March 1998 it is apparent that it was taken into account. There is reference to its contents at AB88.8. No complaint was made by the applicant’s counsel that the Tribunal failed to take into account relevant considerations arising from this statement. The Tribunal accurately recounted the applicant’s version of what occurred in Iran, and following his departure. The applicant’s version of how he came to leave Iran was disbelieved. The Tribunal accepted that the applicant distributed pamphlets and was arrested and detained for two months or so. However, it rejected the applicant’s version about court appearances, and bribes, and concluded that the matter was finalized, so far as the authorities were concerned, when the applicant was released from custody and that the authorities had no further interest in the applicant from that time. The Tribunal relied, in part, on the applicant’s ability to leave Iran, using an Iranian passport, by conventional means. There is no error in this process of reasoning.
In its reasons, the Tribunal set out, at AB89, the applicant’s claim to have a well founded fear of persecution should he be required to return to Iran:
“The applicant fears that he will be intercepted if he returns to Iran because he failed to attend court on charges of anti-government activities. He believes he will be jailed for his political activities and opinions. He says he cannot resume education at secondary or tertiary level and will be deprived of proper employment. He explained that his father is a successful businessman but he did not want to work in his father’s business and would be unable to obtain any of the documentation required to run his own business such as a shop.”
The applicant submitted that the Tribunal failed to consider whether, if he returned to Iran, the applicant would resume his political activities. It was submitted that this failure to consider a relevant question constituted jurisdictional error. The applicant’s case was that he would be persecuted because of his political opinion. The respondent submitted that the Tribunal was not required to consider this question because it was not raised on the applicant’s material.
In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 it was held that an applicant for refugee status must show a well founded fear of persecution. The fear must have a real substantial basis and not be merely assumed or based on mere speculation. However, the applicant need not show that persecution is more likely than not to eventuate. A real chance of persecution will suffice. In determining whether there is a real chance that an event will occur for a particular reason in the future, the degree of probability that similar events have or have not occurred in the past for particular reasons is relevant.
In Guo at 572 their Honours said that 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. Their Honours said:
“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.”
The Court expressly rejected the reasoning of Einfeld J in the Full Court that a well founded fear of persecution should be assumed unless there are facts to negate it. At page 575 their Honours said:
“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 of that thing. In many, if not most, cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”
In the present case, there is no evidence that the applicant is at risk of persecution. The applicant’s submission requires the Court to accept that because the applicant engaged in political activity in the past, there was a real chance he would do so again, and that if he did, he was at risk of persecution. This line of argument has similarities to the reasoning of Einfield J, rejected by the High Court. However, the Tribunal found that, so far as the applicant’s past activities were concerned, the matter was finalized, and the applicant was at no further risk of persecution. So far as the future is concerned the applicant adduced no evidence, despite at least three opportunities to do so, that he may again engage in political activity should he return to Iran. Rather his case was that, because of what had happened in the past, he would be persecuted upon his return to Iran by being precluded from further educational opportunities and certain types of employment.
In Abebe v Commonwealth (1999) 197 CLR 510 at [81] Gleeson CJ and McHugh J said:
“ In determining whether the prosecutor had a well founded fear of persecution, the Tribunal had to form an opinion as to what was likely to occur if the prosecutor was returned to Ethiopia (citing MIMIA v Guo (1997) 191 CLR 559 at 574).”
Their Honours then set out a passage from Guo at 574-5:
“Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”
At [83] their Honours made clear that the prosecutor (the applicant for the protection visa) carries no onus of proof. As Guo makes clear at 575-6 even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well founded fear of persecution in the future.
At [192] Gummow and Hayne JJ (who were in dissent as to the result) said:
“The question that the Tribunal was called on to decide in this case was whether the applicant showed that she then had a well founded fear of persecution on a Convention ground. What is meant by well founded has been considered by this court in several cases . . . and it is not suggested that the Tribunal failed to apply the correct principles in this regard. No doubt, a Tribunal will often find assistance in deciding whether a person has a well founded fear of persecution by looking at that person’s prior experiences. If a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well founded. But proving persecution in the past is not an essential step in an applicant demonstrating that he or she has a well founded fear of persecution.”

These authorities demonstrate that the Tribunal in this case was required to consider what was likely to happen if the applicant returned to Iran. It was against that background that the Tribunal was required to consider, in those circumstances, whether the applicant had a well founded fear of persecution.
The Tribunal did consider what was likely to happen if the applicant returned to Iran. It was satisfied that the authorities no longer had any interest in the applicant and he could continue with his education, if he so wished, or could obtain employment. In those circumstances, the Tribunal concluded that the applicant could not have a well founded fear of persecution.
However, the applicant contends that the Tribunal should have gone further, and considered whether the applicant would have resumed his previous political activities upon his return to Iran, and, if he did so, what was likely to happen. The applicant in particular refers to the passage extracted at paragraph 23 above, and says that it is consistent with him asserting that he intended to continue with his political activities, and feared persecution as a result.
Counsel for the applicant properly accepted that the passage relied upon was ambiguous, at best. In my view, it plainly refers to the applicant’s past activities. Nowhere in his application for a protection visa, in his statement forming part thereof, in his application for review or in his statement made in support thereof, does the applicant state an intention to resume his political activities if he returned to Iran. Rather, his emphasis in the documents just referred to is that he will be persecuted because of his past conduct, and as a result be unable to undertake education or obtain certain types of employment. This is reinforced by those passages of the transcript of the hearing with the applicant referred to by counsel for the respondent.
In my view, the Tribunal was not bound to consider whether the applicant would continue with his political activities if required to return to Iran. This was not an argument advanced by the applicant, nor was it an argument open on the material provided by him.
Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 made well known observations to the effect that it is no part of the duty of a decision maker to make the applicant’s case for him, but in a case where it is obvious that “material is readily available which is certainly relevant to the decision to be made”, to proceed to a decision without making any attempt to obtain that information may be so unreasonable as to vitiate the exercise of the decision making power.
The Full Federal Court in SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 said at [8]:
“It is well established that all substantive issues raised by the evidence before the Tribunal must be considered even if an applicant does not articulate all such claims; Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 294; and Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 at [24]. It is, however, no part of the Tribunal's function `to make good a case, which the applicant has not articulated, only because there is some evidence of elements of a claim.' Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85 at [13].
The Full Federal Court in MIMIA v VFAY; MIMIA v SHBB [2003] FCAFC 191 (French, Sackville and Hely JJ.) said at [97]:
“It may be accepted that the RRT should not limit itself to the case articulated by an applicant where the facts found by it, or not negated by its findings, might support an argument that the applicant is entitled to the protection of the Convention: Minister v Applicant S at 371 [73], per Stone J, citing Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28; Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38.
The principle referred to above in Paramananthan was restated in Ramirez v MIMA (2000) 176 ALR 514; [2000] FCA 1000 by a Full Federal Court at [29] as:
“The tribunal is not bound by the way in which the case is presented. If there is material before the tribunal which raises a basis upon which an applicant might satisfy the Convention criteria, then the Tribunal is obliged to deal with the issue whether or not it is expressly relied upon by the Applicant”.
Ramirez was followed in SBAB v MIMA [2002] FCAFC 161 by the Full Federal Court:
However, the broad principle remains as stated by Tamberlin J in Gnanasambanther v MIMA[2000] FCA 1911 at [3]:
“There is no duty on the RRT to embark on a general inquiry (emphasis added) into every aspect of the evidence presented on a refugee application if that evidence is not raised, relied on or advanced (emphasis added) by the applicant or the representatives of the applicant. As Gummow and Hayne JJ said in a Abebe v The Commonwealth (1999) 162 ALR 1 at 51:
"The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out."
The leading authority on the extent to which the Tribunal must consider arguments not expressly advanced by an applicant is NABE v MIMIA (2004) 144 FCR 1. It is not enough that there be a factual error by the Tribunal. To constitute jurisdictional error the claim must be a substantial clearly articulated argument relying upon established facts. At [55] the Full Federal Court said:
“Although the discussion in S20 did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on a “substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v MIMIA (2003) 77 ALJR 1088 at [24] and [95]”
The reference to S20 is to Re MIMIA; ex parte Applicant S20/2002 (2003) 77 ALJR 1165.
The Court endorsed the nature of the review function articulated by Allsop J in Htun v MIMIA (2001) 194 ALR 224 at [42] namely that a review of the decision requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration. This is to be distinguished from errant fact finding.
Their Honours said at [58] that the review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chan v MIMIA (2000) 106 FCR 157 at [114]. Their Honours continued:
“It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v MIMIA (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.”
Reference was made to the observation of Kirby J in Dranichnikovv MIMIA (2003) 197 ALR 329 that the function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances. The Full Court endorsed the characterization of Selway J (a member of the Full Court) in SGBB v MIMIA (2003) 199 ALR 364 at [18]:
“The question, ultimately, is whether the case put by the appellant before the Tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.”
At [60] the Full Court said this does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
At [63] their Honours concluded that it is plain enough, in the light of Dranichnikov that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.
In my view the applicant’s material before the Tribunal, and the evidence available to the Tribunal, did not raise a case that the applicant would, or even may, resume his political activities if he returned to Iran. Therefore, it did not fall into error in failing to consider that the applicant would resume his previous political activities if he returned to Iran. The reasoning process of the Tribunal, by which it concluded that the authorities had finished dealing with the applicant before he left the country is, in my view, one reasonably open to it.
In my view this conclusion is supported by the comments of French J in WAKZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1065. His Honour said at [57]-[58]:
‘Where a tribunal considers, by reference to the previous activities of a person in the country which they have left, that the person was not a political dissenter at a level likely to attract persecution and that the person is unlikely to become a political dissenter upon return to the home country, it engages in an entirely legitimate exercise. Otherwise every applicant for a protection visa, however bland their history of activity in the country from which they have come would have to be considered for a protection visa on the hypothesis that upon return such a person could become a political activist of a kind likely to be persecuted by the authorities of the home country.

If the Tribunal had simply approached its consideration of the applicant’s likely conduct on return by a process of extrapolation based on her pre-departure history in Burma and her subsequent history in Australia, it would not have erred. In this case, however, in the passage to which counsel has drawn attention, it seems to have gone further. The Tribunal accepted that the applicant’s brief record of anti-government activity while in Burma was one for which she paid dearly. Its satisfaction that she would not be "motivated to be involved in anti-government activities in Burma in such a way as to put herself at risk with Burmese authorities" implied a finding that fear of persecution would prevent her from being involved in such activities. If that is so, then the Tribunal appears to have overlooked a subjectively and objectively based fear of persecution on the part of the applicant for a Convention ground.’
The Tribunal in the present case embarked upon the former, perfectly legitimate exercise. It considered the applicant’s history of political activism and concluded that, by the time he left Iran, the authorities had no further interest in the applicant. The Tribunal did not fall into the error identified in the second paragraph just quoted. No finding was made that the applicant would curtail his activities because of a fear of persecution. As is evident from its reasons at AB90 the Tribunal viewed the applicant’s likely behaviour prospectively.
The Tribunal did not act contrary to the observations of Gaudron J in Chan at 414-5:
“If an applicant relies on his past experiences it is, in my own view, incumbent on a decision maker to evaluate whether those experiences produced a well founded fear of being persecuted. If they did, then a continuing fear ought be accepted as well founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality”
In this case, the Tribunal has accepted the applicant’s claim of past experience of detention and punishment as a result of his activities. It however concluded, as it was open to it, that that episode had been finalized and the applicant had nothing further to fear. In the absence of a case that the applicant would renew his political activities, there was nothing left to consider. As I have said, such a case was not raised by the applicant, either expressly or by implication. One cannot assume that every applicant will resume political activities, just because they have engaged in that conduct in the past. There must be something in the applicant’s case that enlivens that possibility as a real chance.
Nor was this a case similar to S395/2002 v MIMIA (2003) 203 ALR 112. In this case, there is no evidence, one way or the other, that if the applicant returned to Iran he would not engage in political activities because of his fear of the authorities, and would alter his behaviour accordingly. Because there was no evidence that the applicant would resume his political activities, and because this was not raised by him as even a possibility on the material he supplied to the Tribunal, the argument based on S395/2002 does not arise for consideration.
That, however, is not the end of the matter. The Tribunal was required, as I have said, to consider whether the applicant had a well founded fear of persecution if he returned to Iran. For example, if the applicant had engaged in political activities in the past (which was accepted by the Tribunal as having occurred) could the applicant have a well grounded fear that he would be persecuted on that ground alone.
In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388 Mason CJ referred to persecution as requiring “some serious punishment or penalty or some significant detriment or disadvantage”. McHugh J at 429-30 said persecution was selective harassment and that in appropriate cases it could include single acts of oppression and measures in disregard of human dignity.
In the present case, the applicant asserts that if he returned to Iran, he would be precluded from further education and certain types of employment. This may amount to persecution. The Tribunal considered this possibility, and rejected it. The Tribunal was satisfied that the applicant would not be exposed to the risk of persecution. Any attempt to overturn that finding calls in aid a merits review, which is not permissible.
The applicant argues that the Tribunal also fell into error in resolving the “genuine fear” issue. The applicant raised four bases for his submission. First, it was said that in determining whether the applicant had a genuine fear of persecution, the Tribunal had to consider whether the applicant would resume his political activities if he were to return to Iran. As I have concluded, this was not an argument that was raised on the applicant’s material or by him in argument before the Tribunal.
Secondly, it was submitted that the Tribunal’s assessment of whether the applicant’s fear of persecution was well founded ought to have affected the decision as to whether the applicant had a genuine fear of persecution. In my view, the Tribunal has properly addressed this. By accepting the applicant’s account of what had happened to him following his brief foray into political activism, but then finding that the matter had been dealt with by the authorities and that the applicant was no longer of any interest to them, the Tribunal properly concluded that the applicant could not have a genuine fear of persecution.
Thirdly, the applicant complains that the Tribunal determined whether the applicant had a genuine fear of persecution at the time he arrived in Australia, rather than at the time of its decision. This was, it was submitted, contrary to the decision in Singh, referred to above. However, there was nothing put before the Tribunal to suggest that anything had changed between when the applicant arrived in Australia, and when the decision was handed down. Further, in my view, the language of the last two paragraphs of the Tribunal decision correctly addresses the question of genuine fear, at the time of the decision.
Fourthly, the applicant submits that the Tribunal ought to have been more cautious in rejecting the applicant’s claim on the basis of delay in making the claim for a protection visa. Reliance is placed on Kopalapillai, referred to above, and WAIJ v MIMIA (2004) 80 ALD 568 at [30]. Here the Tribunal rejected the applicant’s claim, not because of his delay in making a claim for a protection visa, but because it was not satisfied that the applicant had a well founded fear of persecution if he were forced to return to Iran, because the matter against him had been finalised.
The Tribunal was entitled to take account of the applicant’s delay in applying for the visa: Thuraisamy v MIMIA [1999] FCA 1632 at [10]. The Tribunal considered his explanation and rejected it at RD 93.8. There was no error of principle and the appeal in this regard is no more than a merits review.
The issue of delay confirmed the Tribunal’s finding in that regard. If the applicant had a well founded fear of persecution, an earlier claim for protection ought to have been made. Whilst the applicant gave an explanation for why he did not make such a claim in Germany, his claim as to why he did not make such a claim in Australia does not withstand scrutiny. The applicant says he did not make a claim for protection in Germany because of the large Iranian community there. This means that he must have turned his mind to seeking protection as a refugee, and decided against it because of the risks he says were involved. When he came to Australia, he says that he was unaware of his right to seek a protection visa. However, that is inconsistent with the reasoning process he engaged in Germany. Further, the applicant seems only to have sought a protection visa in Australia when his tourist visas expired. In my view, the Tribunal was correct in concluding that these delays were consistent with its primary finding that the applicant could not have a well founded fear of persecution if he was required to return to Iran.
In my view, the Tribunal correctly set out the legislative framework under which the application was to be dealt with. It applied Chan as requiring the applicant to have a subjective fear of persecution and objective justification or foundation for the fear (referring to Dawson J at 396; Toohey J at 406; Gaudron J at 413, 5 and McHugh J at 429).
In SZATG v MIMIA (2004) 215 ALR 358, Hely J constituting the Full Federal Court considered that the Tribunal is not required to speculate on possible future events but rather to deal with the case actually raised by the material or evidence before it. In my view, that is what the applicant is asking the Court to do here. That is impermissible.
There is one further argument, which although not raised by the applicant, I think I should deal with. In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; (1999) 56 ALD 43, Sackville J (with whom North J agreed, Kenny J in separate reasons taking a similar approach) discussed the principles to be applied when it is claimed that a Tribunal should have considered the possibility that its findings of primary facts were wrong, before reaching an affirmative conclusion that an applicant did not have a well-founded fear of persecution. That is, if the Tribunal in this case ought to have considered whether the applicant would have a well founded fear of persecution if his claims about failing to attend at court appearances and the like were accepted. His Honour made these observations in paras 60-64:
“It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a "real substantial basis" for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring…
The RRT performs its fact-finding task as an administrative decision-maker. Although the civil standard of proof is not irrelevant to the process, the RRT cannot simply apply that standard to all fact-finding. Moreover, the RRT must frequently make its assessment on the basis of fragmented, incomplete and confused information. It has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision-maker/investigator. As Gummow and Hayne JJ remarked in Ex parte Abebe (at par 191):
"[i]t is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself."
Even applicants with a genuine fear of persecution may not present as models of consistency or transparent veracity.
In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s476 (1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found".
In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.”

In this case, the Tribunal expressed no reservations in its findings at AB92. Nevertheless, even if it accepted that the applicant failed to attend court appearances and escaped from the country with the assistance of bribes, this does not detract from the Tribunal’s conclusion that the matter was finalized, and that the applicant does not face persecution if he returns to Iran, for what occurred in the past. The observations of Sackville J, just quoted, do not apply to future political activities, because as I have concluded, this was not an argument advanced by the applicant, nor raised on the material. In considering what might occur in the future if the applicant returned to Iran, the Tribunal could have been satisfied that, if everything the applicant said was true, there was no risk of persecution. Accordingly, this argument does not assist the applicant.
In my view, the Tribunal was correct in concluding that, on the evidence and arguments presented to it, there was no real or substantial basis for concluding that the applicant had a well founded fear of persecution in the future, if required to return to Iran.
Accordingly, the application must be dismissed.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Wilson FM

Associate: Lynnette Chin

Date: 11 May 2007