SZSSQ v MIBP - [2013] FCCA 1762

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSSQ v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1762

Catchwords:

MIGRATION – Application for review of Refugee Review Tribunal ‑ alleged failure by the Tribunal to consider claim and evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 36

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Applicant S v The Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2003) 217 CLR 387
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 75 ALD 630
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 120
Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 52
SZQNO v Minister for Immigration and Citizenship [2012] FCA 326
SZNOE v Minister for Immigration and Citizenship [2012] FCA 96
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1
MZYQZ v Minister for Immigration and Citizenship [2012] FCA 948
Minister for Immigration v Khawar [2002] HCA 14; (2002) 210 CLR 1
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

Applicant:

SZSSQ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 666 of 2013

Judgment of:

Judge Nicholls

Hearing date:

30 July 2013

Date of Last Submission:

30 July 2013

Delivered at:

Sydney

Delivered on:

31 October 2013

REPRESENTATION

Counsel for the Applicant:

Ms S Cirillo

Solicitors for the Applicant:

Fragomen

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application made on 2 April 2013 and amended on 10 April 2013 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 666 of 2013

SZSSQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 2 April 2013 pursuant to s. 476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 10 April 2013, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 March 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

The applicant is a citizen of Cambodia (Court Book – “CB” – CB 14) who came to Australia on 15 December 2010 as a tourist (CB 15). She applied for a protection visa on 1 November 2012 (CB 1 to CB 62). She was assisted in this application by a registered migration agent, who was also a solicitor (CB 1 and CB 60). Prior to that time the applicant had been “detected” by immigration authorities as not having permission to remain in Australia (on 14 October 2011), and taken into immigration detention.
The applicant’s claims to protection were relevantly set out in:
1)A Statutory Declaration of 29 October 2012 (CB 36 to CB 40).
2)An interview before the Minister’s delegate (CB 120).
3)Written submissions by her representative dated 23 November 2012 (CB 108 to CB 110).
4)Written submissions by her representative dated 4 January 2013 (CB 148 to CB 159).
5)Her evidence to the Tribunal at the hearing on 8 January 2013 ([38] at CB 171 to [69] at CB 176).
6)Oral submissions made by her representative to the Tribunal at the hearing on 8 January 2013 ([67] at CB 176).
The applicant’s factual claims were that she had been subjected to abuse in two domestic relationships in Cambodia. The first, in 1985, resulted from her being forced to marry a man who had raped her. She claimed that life with the man was “hard and painful” and that she left him when she fell pregnant. Further, that man was killed about year after the birth of her first son.
The applicant subsequently met another man with whom she fell in love. She lived with him for some years. Over time he became verbally abusive, but never hit her. They had three children together. He left her in 2009. In December 2010 she came to Australia as a tourist.
In the applicant’s Statutory Declaration (of 29 October 2012) she stated, relevantly, that if she were to return to Cambodia ([27] at CB 39 to [32] at CB 40):
[27] I fear that I will be subjected to cruel or inhuman treatment or punishment if I was forced to return to Cambodia.
[28] I fear that I will be subjected to degrading treatment or punishment if I was forced to return to Cambodia.
Who I think will harm / mistreat me if I was forced to return to that country
[29] I fear that my ex-partner will harm / mistreat me if I was forced to return to Cambodia.
[30] I fear that the community would harm / mistreat me if I was forced to return to Cambodia. Being a raped woman in Cambodia is seen as a disgraceful act. People look down on you and blame you for what happened.
Why I think I will be harmed / mistreated if I return to that country
[31] I will be harmed /mistreated if I was forced to return to Cambodia because I am a single mother and I have been sexually abused.”
[Emphasis in original]
The delegate refused the application for a protection visa on 26 November 2012 (CB 113 to CB 127). The delegate’s conclusion was (CB 124.6):
“On the basis of the above credibility issues, I am not satisfied that the applicant has a genuine fear of being killed if she returns to Cambodia. I accept that the applicant wants to make a better life for herself and her children and she feels that she can do this in Australia. However, there is no evidence before me to suggest that the applicant genuinely fears being killed in Cambodia. I therefore find that the applicant’s claims are not made out and there is no real chance of her being persecuted in Cambodia.
I have considered the submission that state protection might be unavailable to the applicant, however, given that I am not satisfied that her fear of harm is genuine, the absence of state protection is not a relevant consideration.
The applicant applied for review to the Tribunal on 3 December 2012, with the assistance of the same firm of migration agents and lawyers (CB 128 to CB 134). In written submissions, the applicant’s representative described the issues in the review before the Tribunal ([33] at CB 152):
“The issues arising in this review are as follows:
A. Is the Applicant’s fear of persecution on account of her membership to a particular social group well founded; and
B. Is the Applicant entitled to complementary protection.
The representative further submitted ([34] at CB 152):
“The Applicant fears persecution for reasons of her membership to any one or more of the following particular social groups:
a. women in Cambodia;
b. single women in Cambodia; and/ or
c. separated women in Cambodia.
The Tribunal’s account of the hearing, contained in its decision record, is not challenged before the Court by any other evidence from the applicant. That account relevantly reveals:
1)The applicant said she came to Australia for a holiday ([39] at CB 171).
2)When asked to elaborate on her “issue” she ([39] at CB 171):
“…gave a rambling account, saying variously that she came as a tourist because she liked Australia; that her brother had been killed in Cambodia; and that she had a hard life there, which she contrasted with life in Australia was wonderful as she had a boyfriend who took her to the beach and the casino and they could stay anywhere without worries of being killed or robbed.”
3)The Tribunal told her that it “found her evidence confusing” (on the issue of what the applicant thought would happen to her if she returned to Cambodia) ([41] – [43] at CB 172).
4)Her further responses were “vague” on this matter ([45] at CB 172).
5)As to her reasons for coming to Australia initially ([48] at CB 173 and [51] at CB 173):
“[48] Asked when she decided to go to Australia, the applicant said she left in 2010 but had always wanted to go to Australia because her life was so hard in Cambodia, with her boyfriend bashing her and having another woman. She had also decided that she would never return to Cambodia. Asked what she was planning to do in Australia and how long she was planning on staying, the applicant confirmed that, at the time she left Cambodia, she already knew she would not return. She was long to bring her children, but knew there was no way of doing that. She knew her visa was for a stay of only three months, but she hoped the Australian government would let her stay and migrate here.
…
[51] The applicant confirmed that she signed the application form [for her tourist visa] knowing that a Tourist visa was for 3 months and that she was not planning to return to Cambodia. She said the reason she was prepared to come under false pretences was that she wanted live in Australia as it was an easier life than in Cambodia and she was willing to give up everything in order to come here, including her family identity card and the deeds of her house.”
[Emphasis added.]
6)The applicant agreed her claims were as follows ([53] at CB 174):
“I summarised and the applicant agreed that her claims were as follows. She was afraid to return to Cambodia because she will be subjected to harm by her former partner, the father of three of her children, because he heard that she has another boyfriend in Australia. She also fears that the people who took her house in order to facilitate her visa and passport will throw her children out of the house. Asked if there were any other reasons she feared to return to Cambodia, the applicant said because life in Cambodia was poor and hung by a thread – if someone disliked you, they could go and shoot you; and because people in Cambodia thought those who returned from overseas had plenty of money, which she did not.”
7)The Tribunal raised with the applicant various inconsistencies in her evidence, which raised doubts about whether she was telling the truth ([54] at CB 174 to [62] at CB 175).
8)Given the ground of the amended application (see at [18] below), the following from the Tribunal’s account is also relevant ([63] at CB 175):
“With regard to the applicant’s claims regarding her membership of several particular social groups, I noted that at no stage in the hearing had she raised these issues herself, in particular that she feared that she would be subjected to cruel and inhuman or degrading treatment by the community as woman who had been raped; or a single mother who has been sexually abused. I had read her adviser’s submission on these issues but noted that she made no mention of them when asked why she was afraid to return to Cambodia.”
The Tribunal found that it could not be satisfied that the applicant was “in genuine fear of persecution for a Convention reason or that there is a real chance of such persecution on her return to Cambodia” ([71] at CB 177). The Tribunal found that none of the applicant’s claims, as she had put them to the Tribunal, engaged the Refugees Convention ([72] at CB 177).
The Tribunal noted the representative’s submission as to a

well-founded fear of persecution as a member of a particular social group. It noted that the applicant “…did not elaborate on any issues in this regard…” ([73] at CB 177).
The Tribunal found adversely to the applicant’s credibility ([74] at CB 177):
“For the reasons set out below I do not find the applicant to be a reliable, credible or truthful witness about her experiences in Cambodia and question whether anything she said can be relied upon. On a number of issues central to her claims, the applicant’s evidence was variously vague, implausible, inconsistent an embellished.”
It gave reasons for this adverse credibility finding ([75] at CB 177 to [80] at CB 178). Importantly, the Tribunal found ([76] at CB 177):
“Notably, on the question of whether her former partner, who she feared would harm her if she returned to Cambodia, had previously been violent towards her, the applicant’s evidence shifted from stating that he had not been violent towards her (in her statutory declaration and Departmental interview); to telling me at hearing that he had been violent and bashed her. The applicant offered no explanation of substance when I put this to her. When I suggested that she may have embellished her evidence after receiving the negative decision from the Department in order to enhance her protection claims, the applicant claimed that her memory was not very good and she was confused because she had been hit too many times.”
The inconsistent, “shifting”, and vague evidence was found to be characteristic of a number of the applicant’s factual claims (see [77] and [79] – [80] at CB 178). Further, the Tribunal did not accept that her claimed memory loss, or possible mental illness, affected her ability give her evidence at the hearing ([78] at CB 178).
Ultimately, the Tribunal rejected the applicant’s factual basis for her claimed fear ([81] – [82] at CB 178):
“[81] Considered together, the reasons discussed above lead me to find that the applicant has not been truthful about her experiences in Cambodia and the reasons she fears returning. I am not satisfied that the applicant was raped in Cambodia or had to marry or live with her alleged assailant; nor that her former partner subjected her to violence while she was in Cambodia; or that he has threatened to kill her if she returns, as claimed. I am not satisfied that if she returns to Cambodia, the applicant will lose her house or that her children will be thrown out of her house, as claimed; or that she will face persecution as a member of the particular social groups of single and/or separated women in Cambodia, as submitted by her adviser.
[82] On the basis of the evidence before me, I am satisfied that the applicant does not now or in the reasonably foreseeable future face a real chance of persecution arising essentially and significantly for a Convention reason or reasons. It is, therefore, unnecessary for me to consider the claim of failure of state protection.”
Although not relevant to the ground of the application, I note that the Tribunal also addressed the complementary protection criterion (s. 36(2)(aa) of the Act) for the grant of the protection visa and found that there were not “substantial grounds for believing” that the applicant would face “significant harm” if returned to Cambodia ([86] at CB 179).

Application to the Court

The amended application before the Court is in the following terms:
“1. The Tribunal fell into jurisdictional error in that it failed to consider the applicant’s claim (referred to below as ‘the Claim’) to fear persecution by reason of her membership of any one or more of the following particular social groups, being:
a. Women in Cambodia;
b. Single women in Cambodia;
c. Single mothers in Cambodia; and / or
d. Separated women in Cambodia.
Particulars
i. The Claim was apparent on the face of the material before the Tribunal which included:
A. The applicant’s 29 October 2012 Statutory Declaration which stated at paragraph [31],
I will be harmed / mistreated if I was forced to return to Cambodia because I am a single mother and I have been sexually abused.
B. The 23 November 2012 written submissions to the Minister’s delegate which stated at paragraph [2].
The Applicant fears harm for reasons of her membership to any one or more of the following particular social groups:
a. Single women in Cambodia; and / or
b. Single mothers in Cambodia.
and which went on to cite various items of country information submitted to support that claim at paragraph [4].
C. The 4 January 2013 written submissions made on behalf of the applicant and addressed to the Tribunal which stated at paragraph [34]:
The Applicant fears persecution for reasons of her membership to any one or more of the following particular social groups:
a. women in Cambodia;
b. single women in Cambodia; and/ or
c. separated women in Cambodia.
and which went on to cite various items of country information submitted to support that claim at paragraphs [36] to [38].
D. The oral submissions made by the applicant’s advisor at the 8 January 2013 Tribunal hearing (see paragraph [67] of the Tribunal’s Decision).
ii. In paragraph [81] of the Tribunal’s Decision, under the heading “Findings and Reasons”, the Tribunal stated that it was not satisfied that if the applicant returns to Cambodia “she will face persecution as a member of the particular social groups of single and/or separated women in Cambodia…”. However, the Tribunal did not make the determinations necessary to allow it to make this ultimate finding, and therefore be taken to have considered the Claim, namely.
A. Whether any one or more of the groups or classes to which the applicant claimed to belong constituted “particular social groups” for the purposes of Article 1A(2) of the Convention;
B. Whether in fact the applicant belonged to any one or more of the claimed particular social groups; and
C. Whether the applicant faced serious harm by reason of her membership of one or more of the claimed particular social groups.
iii. The findings in paragraph [81] of the Tribunal’s Decision, relating to:
A. the applicant’s claims about her alleged rape and forced marriage.
B. the applicant’s fears about her former partner, and
C. the applicant’s fear that she would lose her house or her children would be removed from it.
were not findings of a greater level of generality than the findings that could have possibly flowed from a consideration of the Claim, such that it could be said that the Claim was subsumed by any of the findings made by the Tribunal.
iv. The Claim was premised on one or more of the following facts:
A. the applicant was a woman in Cambodia;
B. the applicant was single in Cambodia;
C. the applicant was separated from a former partner or partners in Cambodia; and
D. the applicant was a mother in Cambodia,
none of which were rejected by the Tribunal.
At the hearing before the Court Ms S Cirillo of counsel appeared for the applicant. Mr T Reilly of counsel appeared for the Minister.

The Applicant’s Ground

The applicant’s sole ground asserts jurisdictional error on the part of the Tribunal because it failed to consider whether the applicant’s claim to fear persecution by reason of her membership of a particular social group, variously described as ([17] of the applicant’s written submissions):
“…
1. Women in Cambodia;
2. Single women in Cambodia;
3. Single mothers in Cambodia; and / or
4. Separated women in Cambodia.”
The applicant submits that these claims expressly arose before the Tribunal with reference to the applicant’s statutory declaration (CB 40), her representative’s oral submissions ([67] at CB 176), and her representative’s written submissions (see above at [8] – [9]). The applicant argued that the written submissions, in particular, cited country information to support the view that the members of the claimed particular social groups faced persecution in Cambodia.
The thrust of the applicant’s ground is that the Tribunal did not consider this claim in accordance with the test set out in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov”). The applicant’s written submissions conveniently provide the description of the relevant test ([21] of the applicant’s written submissions):
“To have considered the social group claims, the Tribunal was required to undertake the enquiry required by the Dranichnikov test by considering:
(a) Whether any one or more of the groups or classes to which the applicant claimed to belong constituted “particular social groups” for the purposes of Article 1A(2) of the Convention. This was to be determined by reference to the country information submitted by the applicant in accordance with the test in Applicant S v The Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2003) 217 CLR 387 per Gleeson CJ and Gummow and Kirby JJ at [36]. This would be a matter for a Tribunal on any reconsideration of the case: Minister for Immigration v Khawar [2002] HCA 14; 210 CLR 1 per McHugh and Gummow at [81];2
(b) Whether in fact the applicant belonged to any one or more of the claimed particular social groups; and
(c) Whether the applicant faced a well-founded fear of serious harm by reason of her membership of one or more of the claimed particular social groups.”

In essence the applicant’s attack is as follows. The Tribunal rejected much of the applicant’s factual account of what she said had occurred in the past in Cambodia. Before the Court, the applicant makes no challenge to these findings.
However, the Tribunal left “untouched”, or accepted, a number of other factual assertions made by the applicant. For example, the Tribunal accepted that the applicant had been in the past, and would be if returned in the foreseeable future, a single woman, a single mother and a separated woman in Cambodia.
The applicant also argues that, through her representatives, she submitted information to the Tribunal relevant to her claims to fear harm for reason of her membership of the particular social groups indicated by the above factual assertions.
The applicant argues therefore, that in line with the authority of Dranichnikov, the Tribunal should have asked, first, whether any of the groups the applicant proposed constituted a “particular social group” for the purpose of Article 1A(2) of the Refugees Convention (see Applicant S v The Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2003) 217 CLR 387 per Gleeson CJ and Gummow and Kirby JJ at [36]). Second, whether the applicant belonged to any one of the particular social groups if any could be found to be so constituted. Third, whether the applicant faced a well-founded fear of serious harm by reason of any such membership.
The Tribunal’s failure to embark on this consideration, in the circumstances, is said to have amounted to jurisdictional error.
The applicant also submitted that while the Tribunal did say that it was not satisfied that the applicant would face persecution as a member of a particular social group in Cambodia (see [81] at CB 178), this was merely a “conclusion”. There was nothing in the Tribunal’s analysis to demonstrate that it considered this set of claims in accordance with the required test.
The parties differ on how the Tribunal’s decision record should be understood in light of the above attack. In reaching any such understanding it must be accepted, as the applicant submits, that the absence of any such consideration as the applicant asserts, and if made out, raises an inference that the Tribunal did not consider the applicant’s claim in accordance with the required test (Dranichnikov; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] and WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 75 ALD 630 at [47]).
Further, while the Tribunal’s reasons are to be read fairly (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (Wu Shan Liang)) they are not to be accorded a “beneficial construction”, or to excuse ambiguity. The Court cannot assume that the claim was addressed in the absence of any evidence as such (SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]).

The Minister’s Response

The Minister submitted that the applicant’s case failed for two separate reasons. The first arises from [71] of the Tribunal’s analysis (CB 177):
“I am not satisfied that the applicant is in genuine fear of persecution for a Convention reason or that there is a real chance of such persecution on her return to Cambodia. My reasons for this finding are as follows.”
The Minister argued that a plain reading of this paragraph reveals a finding that the applicant did not have a genuine, subjective fear of persecution for a Convention reason, and that this, non-existent, fear was not well-founded.
I should note that there was some note of “academic” difference expressed by the applicant as to the Minister’s expression of the relevant law, and its application to this case. In any event the Minister relied on a number of authorities for his position:
1)SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 120 at [12], [20] and [25] per Cooper J:
[12] The definition of `refugee' involves both subjective and objective elements. Elements (2) and (3) as identified by the High Court in Guo require the existence of a subjective fear of persecution, and it must be shown that this fear is held by the relevant person in fact and that this fear is a fear of persecution for a Convention reason: see also the judgment of the High Court in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 389, 396, 406, 429 and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 658. The objective element is introduced in the fourth element, which requires that the subjective fear objectively be `well founded'.
…
[20] To succeed before the RRT in respect of the contended alternative case of imputed [religious] beliefs, the appellant would have had to satisfy the RRT that he had a subjective fear that he would be persecuted if he were returned to Iran. He would also have to show that the persecution he feared would be for a Convention reason. Relevantly to the circumstances of the appellant, he would have to show that the reason for the persecution he feared would be Baha'i religious beliefs imputed to him by the Iranian authorities because he had a girlfriend and other friends of the Baha'i faith when he was in Iran. That required that the appellant satisfy the RRT, on the materials before it, that the Iranian authorities had imputed, or would impute, to him Baha'i religious beliefs because of previous association with persons of that faith. There was no evidence before the RRT that the Iranian authorities had imputed, or would impute, to the appellant Baha'i religious beliefs based on his association with persons of that faith. There was also no evidence that the appellant had any fear of persecution because of such imputed religious beliefs.
…
[25] The test as formulated by his Honour is in accordance with the Australian and United Kingdom authorities set out above. The test advanced by the appellant as sufficient to attract refugee status is totally inconsistent with those authorities and the language of Art 1A(2) of the Convention.”
2)Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 (“Iyer”) at [29] per Heerey, Moore and Goldberg JJ:
“Whether the appellant had been obliged to pay a bribe to the LTTE in order to bring his children out of Jaffna, and whether that extortion constituted Convention-based persecution, was not a material question of fact which the Tribunal had to determine, having regard to the Tribunal's clear and explicit finding that:
‘…I do not accept that the Applicant genuinely fears that he will be persecuted for Convention reasons if he returns to Sri Lanka. I consider that his claimed fear of being persecuted is ‘merely assumed’’
Once this finding had been made, it was not necessary for the Tribunal to determine whether factual occurrences relied upon by the appellant provided an objective basis for the fear of persecution claimed by the appellant. Once the Tribunal rejected the claim that there was such a subjective fear, it was not necessary for the Tribunal to determine whether the non-existent fear was well-founded. This is so even if the approach of the Tribunal might be viewed as illogical to the extent that it relied upon the appellant's return to Sri Lanka without his son in circumstances where the well-founded fear was based, in part, on what might happen to his son in Sri Lanka.”
[Emphasis added]

Consideration

In my view, the Minister’s submissions were correct at law. In Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (“Chan Yee Kin”) the High Court set out the test for a “well-founded fear”. This was said to involve both a subjective and an objective element. See for example Chan Yee Kin at [16] per Dawson J:
“The phrase ‘well-founded fear of being persecuted’ has occasioned some difference of opinion in the interpretation of the relevant Article of the Convention. Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear…”
(See also Wu Shan Liang at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.)
It is the case that this subjective element of a “well-founded fear” concerns the applicant’s state of mind. This element is important in the present case given the way the applicant’s claims and circumstances were presented over the time of the application for a protection visa, and ultimately before the Tribunal.
It is important to note that if a relevant decision maker finds that an applicant does not have any Convention based subjective fear then that, if it is reasonably open on the evidence to so find, could be the end of the inquiry and obviate the need for any further analysis of the applicant’s claims.
This explained the Minister’s reliance on Iyer (see both at first instance Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 52 per O’Connor J particularly at [32] – [34]; and on appeal, see [33] above).
As I respectfully understand these authorities (including SDAQ referred to above), once the relevant decision maker finds that an applicant does not hold a relevant subjective fear, there is no need to then go on to consider whether there is an objective basis for whatever fear was claimed. Importantly, given the authorities, it is also not necessary to go on to consider whether other aspects of the Convention definition are satisfied. For example, as in this case, the matter of membership of particular social groups.
I should also note more recent Federal Court authorities (binding on this Court) in support of the Minister’s position:
1)SZQNO v Minister for Immigration and Citizenship [2012] FCA 326 at [48] per Katzmann J:
“The question whether the appellant had a well-founded fear of being persecuted on any Convention ground involved both subjective and objective elements: Chan at 396 per Dawson J, at 406 per Toohey J, at 415 per Gaudron J. In other words he had to fear persecution for a Convention reason and that fear had to be well-founded. The matter complained of affected the objective element but not the subjective one. If the appellant did not meet the subjective element, then he could not satisfy the definition of refugee, regardless of whether there was material that provided objective support for such a fear. Contrary to what might have been expected if she held such a view (see Chan at 387 per Mason CJ) the reviewer made no express finding that the appellant did not fear persecution for the reason that in the foreseeable future he could be a member of social group of failed asylum seekers returning from a western country. She merely said he did not claim to have this fear. It is implicit, however, in what she did say that she did not accept that the appellant feared persecution for this reason. (I appreciate that in paragraph 103 under the heading ‘summary’ she stated that the appellant’s fear of the Taliban and the police was not well-founded on any of the posited Convention grounds. But I do not consider that this was intended to be a finding that, despite the appellant’s failure to make the claim that he feared persecution as a member of the social group of failed asylum seekers returning from a foreign country, he actually had that fear.) In those circumstances, it was strictly unnecessary for her to address the country information at all or to decide whether there was a foundation for any such fear: cf. Emiantor v The Minister for Immigration and Multicultural Affairs (FCAFC, 20 July 1998, unreported). As the denial of procedural fairness only affected the objective element, it makes no difference to the outcome. Whether or not there may have been good reason for entertaining such a fear, the appellant did not claim to have it. Accordingly, having failed on all the other grounds, he did not satisfy the definition of refugee.”
[Emphasis added]
2)SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78] per Greenwood J:
“Further, as Burnett FM correctly notes, there is clear authority for the proposition that the principles exposed by Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 do not require the Tribunal to consider whether the particular social group of which the appellant claims to be a member (either expressly or implicitly by reason of the material) is a ‘social group’ for the purposes of Art 1A(2) of the Refugees Convention (and the Act), in circumstances where the Tribunal has found that the appellant does not hold a well-founded fear of persecution as contemplated by s 91R(1) of the Act for any Convention reason (MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 at [18], [25] and [29] per Finkelstein J; SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 at [49]- [50] per Besanko J; and BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543 at [21]- [25]). Unless the Tribunal makes a jurisdictional error, on the question of fact of whether the applicant holds a well-founded fear of persecution for any one of the contended reasons, no jurisdictional error arises by the mere failure to identify and consider the precise social group to which the applicant claims membership.”
For present purposes, therefore, resolution will turn on how [71] (at CB 177) of the Tribunal’s record is to be understood. The Minister says it represents a finding that the applicant does not hold a subjective fear of persecution. The applicant says it is no more than a “conclusion” often seen in cases of this type, and lacks evidence of any consideration.
This latter submission was put by the applicant, initially, in relation to the Minister’s second point (see below) and with reference to [81] (at CB 178) of the Tribunal’s record. However, in submissions before the Court, I understood it to be also put in relation to [71] (at CB 177). The applicant’s relevant footnote, in written submissions, illustrates the point pursued by the applicant before the Court (footnote 1 at page 5 of applicant’s written submissions):
“This inference may also be drawn in light of what is stated to be required by the following authorities: Tickner v Chapman (1995) 57 FCR 451 at 462 [39] per Black CJ (‘consideration’ requires ‘an active intellectual process’); NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [212] (‘fleeting, uncritical references’ were insufficient in that case), and Lafu v Minister for Immigration (2009) 112 ALD 1; [2009] FCAFC 140 at [48]-[50] (there was a lack of engagement with a requisite consideration despite a reference to it). Furthermore, consideration of a claim must be ‘proper, genuine and realistic’: see SZJSS v Minister for Immigration and Citizenship (2009) 113 ALD 270; [2009] FCA 1577 at [42]-[46] and the authorities cited therein.”
Paragraph 71 on its own is certainly a “concluding” statement (CB 177). But, as is often said, Tribunal decisions are meant to read fairly (Wu Shan Liang). This includes a holistic reading. As the Tribunal member made plain, the finding set out at [71] (at CB 177) was derived from the entire analysis: “…My reasons for this finding are as follows…” ([71] at CB 177).
In my view, those reasons and the analysis there, satisfied the requirements set out in the authorities referred to by the applicant now (see [41] above).
It is the case that, at [71] (at CB 177), the Tribunal did not use the word “subjective”. But any plain reading, let alone a fair reading, of what follows reveals that that is what the Tribunal meant.
The Tribunal found that the applicant was not “a reliable, credible or truthful witness” ([74] at CB 177). Importantly, it questioned “…whether anything she said can be relied upon…” ([74] at CB 177). It found that on issues “central to her claims the applicant’s evidence was variously, vague, implausible, inconsistent and embellished” ([74] at CB 177).
Further, the Tribunal had concerns about the applicant’s evidence as to what would happen in relation to her personal circumstances if she returned to Cambodia ([75] at CB 177). In this regard, the Tribunal found that her evidence “shifted”, offered “no explanation of substance” when confronted with this, and that she “may have embellished her evidence after receiving the negative decision from the Department” ([76] at CB 177). The Tribunal gave no weight to the applicant’s claim of memory loss when put in explanation of her unsatisfactory evidence ([77] – [78] at CB 178).
Importantly, the Tribunal found at [80] (at CB 178):
“By her own evidence, the applicant was prepared to sign her Tourist visa application which committed her to return after three months, knowing she would not return to Cambodia; and was prepared to give up everything, including her house and identity, in order to come to Australia for a better life. She gave no coherent response when asked why, if she seriously feared harm, she did not apply for a Protection visa earlier; or why I should not believe that she fabricated her story because she overstayed her visa and got caught.”
[Emphasis added]
Ultimately, the import of the succession of these findings, culminating in the findings at [80] (at CB 178), plainly lead to the conclusion that the Tribunal did not believe that the applicant had a subjective fear of harm in Cambodia, but came to Australia for a better life and “fabricated her story” because she was detained by immigration officials after overstaying her tourist visa.
I agree with the Minister that this provides the complete answer to the applicant’s ground and the application should be dismissed on that basis.
It is the case, however, that the basis for dismissing the application can also be derived, independently, from the Minister’s second, and separate, response to the ground of the application.
This argument is that the Tribunal did, in any event, address the claims relating to particular social groups at [81] (CB 178) (see [16] above). The Minister’s submissions were, relevantly, as follows. Dranichnikov requires a substantial, clearly articulated claim relying on established facts. What can be added to this is that such authorities as NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (“NABE (No 2)”) only require the Tribunal to address claims expressly made or clearly arising from the circumstances presented (see at NABE (No 2) at [63]).
The Minister’s position was that the Tribunal dealt with (particularly at [81] at CB 178) the claims in a manner that did not offend the Dranichnikov requirement.
This leaves the question as to what exactly was claimed before the Tribunal. Regard must, therefore, be had to what the applicant, and relevantly her representative on her behalf, claimed. The question now, therefore, is what did the applicant and the applicant’s representative’s submissions articulate as the applicant’s claims in relation to particular social groups and how did the Tribunal deal with it?
It is not an oversimplification to say that the Tribunal had two sources before it in relation to the applicant’s claims. The first was the applicant herself. The second was the written and oral submissions of the representative. In stating this distinction it should plainly not be taken that a claim presented by a representative is of lesser import in itself, or should, because of that sole reason, be treated differently by the Tribunal. But, the importance of the distinction here is that it explains what the Tribunal relevantly meant at [73] (at CB 177).
Before the Court, the applicant took issue with what she said was the Tribunal’s observation that she “did not elaborate on any issues” relating to the particular social group claims ([73] at CB 177):
“The applicant’s advisers have claimed that the applicant has a well-founded fear of persecution as a member of the particular social group of single women and/or separated women in Cambodia. I note that the applicant herself did not elaborate on any issues in this regard, even when invited to do so at the hearing.”

Amongst other matters, the applicant’s position was that in circumstances where the applicant’s representative pressed the particular social group claims, the application’s perceived failure to have elaborated on the claim cannot be taken as an abandonment of the claim (MZYQZ v Minister for Immigration and Citizenship [2012] FCA 948).
On a plain reading, the Tribunal, here, was simply observing (“I note” at [73] at CB 177) that the only source of any claim in this regard came from the representative and not from the applicant herself. I cannot see that the Tribunal then subsequently rejected the claim as expressed by the representative, or gave it lesser weight, simply because it did not come from the applicant herself. In my view, it was an appropriate distinction to make given the nature and character of the applicant’s evidence and, the nature and character of the representative’s submissions.
It is now becoming a common feature in cases of this type seen before this Court, for representatives before the Tribunal (or “assessors” or “reviewers”) to make general assertions about either conditions in the countries of claimed persecution or matters such as membership of particular social groups. These assertions are usually accompanied by (sometimes a large volume of) material which can be described as “country information”. Generally, and as in this case, no real attempt is made beyond the mere presentation, to link the stated groups to the country information, or an applicant’s or claimant’s circumstances to both.
In the current case, any plain reading of the representative’s submissions to the Tribunal (both the written and the reported oral submissions), on which the applicant now primarily relies in this particular argument, reveals an important limitation in the context of a substantial, clearly articulated claim relying on established facts. That is, the test to engage the Dranichnikov “assessment”.
Before the Court, the applicant submitted that the mere recitation of possible social groups by the applicant’s representative was sufficient to engage the reliance on Dranichnikov. Bearing in mind the need for substantial clearly articulated claims, the best that can be said of the applicant’s representative’s written submissions and the highest level of an attempt to link the applicant’s specific circumstances to the country information, is that found in the written submissions of 4 January 2013 (particularly CB 152).
Both sets of the representative’s written submissions before the Tribunal make reference to the concept of particular social groups. The submissions of 23 November 2012 do no more than state two possible groups ([2] at CB 108). There is nothing in these submissions to explain how these groups can be said to be linked to the applicant’s circumstances, or vice versa, such that it can be said that there is a clearly articulated claim to fear Convention related harm relevant to the applicant.
The submissions of 4 January 2013 again state certain groups ([34] at CB 152). While there is some statement in the submissions of the characteristics of these groups and the nature of harm occasioned to members of these groups ([36] at CB 153 to [38] at CB 155), the only attempt to give substance, or even to articulate the applicant’s claims in any relevant context is as follows ([39] – [40] at CB 155):
“[39] The Applicant’s former partner has committed to act on threats against the Applicant’s personal safety should she return to Cambodia. As the above information indicates, in the circumstances that these threats actualise, the Applicant would be deprived of adequate protection by inadequate and complacent protection services.
[40] In light of the above information, the Tribunal should find that the chance of the Applicant facing serious harm for reasons of her membership to the abovementioned particular social groups is not remote.”
The Tribunal’s unchallenged account of the hearing relevantly reports ([67] at CB 176):
“In his oral submission, the applicant’s adviser noted that regarding particular social groups, their submissions focused on separated women and single mothers in Cambodia and referred to country information about the systematic abuse such women faced in Cambodia; where there were no mechanism for protection, access to shelters or state protection in the face of domestic violence which was endemic in Cambodia. He noted that the applicant had spoken of domestic violence in respect of her former partner. The adviser requested that I consider the arrangement the applicant made to come to Australia and the impact of her return on her and her children in terms of significant harm under complementary protection.”
This reflects the written submissions. That is, some general reference to social groups, with the only clearly articulated claim of fear in this context being the fear of harm from her former partner.
I can only agree with the Minister that the assertion of the existence of social groups was at its highest an “abstract” contemplation. It does not meet the threshold of a substantial, clearly articulated claim referable to the applicant.
Ultimately, the only element that came close to that description was the reference to fear harm from her former partner. The Tribunal considered and specifically rejected the factual basis of this claim ([76] at CB 177 to [77] at CB 178 and [81] at CB 178) in the context of a member of a particular social group. The relevant findings here were reasonably open to the Tribunal, and it gave cogent reasons for them.
This situation can be distinguished from such cases as Minister for Immigration v Khawar [2002] HCA 14; (2002) 210 CLR 1 (“Khawar”). In that case Mrs Khawar was subjected to domestic violence from her husband and his family in Pakistan. Her fear of harm in this regard was clearly articulated and accepted.
In Khawar, the High Court found that the necessary nexus between the harm feared from private sources (her husband and his family) and a Convention reason was to be found in the State’s tolerating and condoning of such domestic violence towards such persons (women in Pakistan) as Mrs Khawar (Khawar at [31] – [33] per Gleeson CJ).
In the current case, the applicant submitted that had the Tribunal followed the path urged by the applicant now it may have been necessary for it to consider the failure of state protection, another reference made in the representative’s submissions.
However, in the current case, once the Tribunal ultimately found that the claimed fear from her former partner was a fabrication ([80] at CB 178) then there was nothing left against which to consider the existence, or absence, of state protection.
For the sake of completeness I note that before the Court, the applicant submitted, with reference to [81] (at CB 178), that the Tribunal restricted itself to making findings about the past, and that while that may assist in assessing what may happen in the future, it is not determinative (with reference to Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 and Wu Shan Liang, the relevant test is a forward looking test.)
Again, the Tribunal’s record must be read holistically. What is set out at [81] (at CB 178) must also be informed, amongst other things, by what is set out at [75] and [76] (at CB 177), where the Tribunal was plainly focussed on the situation in the event that the applicant was to return to Cambodia. That is, it had a focus on the reasonably foreseeable future.

Conclusion

The Minister’s “second” response also stands in answer to the applicant’s sole ground. It is appropriate that the application to the Court be dismissed. I will make an order accordingly.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 31 October 2013