SZSZM v Minister for Immigration
[2014] FCCA 741
•17 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSZM v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 741 |
| Catchwords: MIGRATION – Application to review decision of the Refugee Review Tribunal – whether the Tribunal erred in its findings in relation to future disclosure of the Applicant’s former drug addiction and/or criminal history in the manner considered in Appellant S395/2002 v Minister for Immigration. |
| Legislation: Migration Act 1958 (Cth) ss.91R(2)(d), 36(2A) |
| Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 75 ALD 630; [2003] FCAFC 184 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Citizenship v SZSCA [2013] FCA 155 MZYUV v Minister for Immigration and Citizenship [2013] FCA 498 MZXRI v Minister for Immigration and Citizenship (2008) 105 ALD 1; [2008] FCA 1613 NALZ v Minister for Immigration & Multicultural Affairs (2004) 140 FCR 270; [2004] FCAFC 320 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40 SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1;[2012] FCAFC 58 SZQWV v Minister for Immigration and Citizenship [2012] FCA 817 S635 of 2003 v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCAFC 65 |
| Applicant: | SZSZM |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1427 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 27 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 17 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | J. F. Gormly |
| Counsel for the Respondent: | P. Knowles |
| Solicitors for the Respondent: | DLA Piper Australia |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1427 of 2013
| SZSZM |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 28 May 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant is a citizen of Pakistan who was born in 1988. His parents brought him to Australia in 2002 when he was 11 years old. He has lived in Australia since then, apart from a 16 month period from mid-2003 when he lived in Dubai for 6 months and then attended a boarding school in Pakistan. He became a permanent resident of Australia in July 2006.
The Applicant has what his Counsel described as a “significant criminal history” dating back to 2005. He has served multiple terms of imprisonment in Australia. He admits he was a heroin addict and is now on a methadone program. On 17 October 2012 the Applicant’s permanent residence visa was cancelled on character grounds related to his criminal record.
On 7 February 2013 the Applicant applied for a protection visa. In a statutory declaration annexed to his application, the Applicant referred to his history. He claimed it was not safe for him to return to Pakistan. He claimed to fear that, as a person who had lived in Australia most of his life he would be seen as an outsider and would be at risk of harm because of his Western values, his view of religion, the fact that he did not share the fundamentalist view of Islam or identify with cultural and religious views in Pakistan and his Westernised manner and dress. He claimed his Urdu language skills were very limited, that he spoke with an accent, used English words and that he could not read and/or write Urdu.
The Applicant also claimed to fear he may be kidnapped and a ransom demanded because he would be perceived as coming from a family living in a Western country that had access to money. He claimed that he would have problems getting employment and accommodation in Pakistan as he did not speak, read and write Urdu and had a criminal record for drug-related offences. He claimed that disclosure of this information in trying to obtain employment or accommodation may put him at risk of being targeted. He claimed that he may not be able to continue on a methadone program Pakistan. He claimed the authorities would not offer him protection as the police were corrupt and many members of the police and army had fundamentalist religious views and may harm him.
The Applicant attended an interview with a delegate of the First Respondent. His representative submitted that there was evidence that individuals in Pakistan took action against people perceived not to be following Islam and that if the Applicant tried to get a job it would be unlikely that he would be able to obtain employment because of his Western values and criminal record. It was claimed that his ability to subsist would be at risk for these reasons and because he was a former drug user.
The application was refused. The Applicant sought review by the Tribunal. His advisor submitted that the Applicant feared persecution by Islamic fundamentalist groups and individuals in Pakistan because of his rejection of Islam and imputed political opinion. It was also submitted that because the Applicant had criminal convictions in Australia and would be involuntarily returned to Pakistan as a failed asylum seeker, he would be at risk of both Convention-related persecution and significant harm within the complementary protection criterion.
The Applicant attended a Tribunal hearing on 19 April 2013. A transcript of the Tribunal hearing is in evidence before the Court as an annexure to an affidavit of Sue Archer affirmed on 21 August 2013.
The Tribunal Decision
In its decision of 28 May 2013 the Tribunal summarised the claims made by the Applicant’s agent that the Applicant feared persecution by Islamic fundamentalist groups and individuals in Pakistan because of his rejection of Islam and by reason of an imputed political opinion of opposition to fundamentalism and Islamic fundamentalists, that there was no effective protection and that relocation would not avoid persecution. It recorded that the Applicant made complementary protection claims for the same reasons he claimed to be at risk of Convention-related persecution.
The Tribunal recorded that at the Tribunal hearing the Applicant also claimed to fear being identified as a Westernised person (who would stand out because of his western clothes and the fact he did not go to mosque, pray five times a day or fast at Ramadan) and therefore targeted for harm by fundamentalist Islamists, that he would be targeted for extortion or kidnap and ransom because Pakistanis would think his family was wealthy if he was Westernised and that he would be unable to get employment in Pakistan or to obtain accommodation because of his criminal record. While the Applicant had acknowledged that his English language skills would be of benefit to him, he had claimed that disclosing his criminal record “would not help”. The Tribunal continued:
When I asked why he thought his criminal record would become known, he responded that he does not know how it works in Pakistan, that it is pretty corrupt, so maybe they only give jobs to people they know, or maybe because he looks Westernised they will ask questions or they will find out when he returns.
The Tribunal also recorded that at the hearing that the Applicant had indicated that his parents, who both still worked, had said they would help him financially until he got on his feet, although he was ashamed to ask them because they had given him a lot and were getting old.
The Tribunal was satisfied there was no real chance or real risk of the Applicant being subjected to the harm he feared. It accepted that he would experience difficulties adjusting to living in Pakistan, but found that such difficulties were likely to be ameliorated by his parents’ undertaking to provide some financial support and his English language skills.
The Tribunal found that the evidence available indicated that the Applicant’s circumstances as a Westernised Pakistani Muslim who attended mosque infrequently were unlikely to result in his being targeted for harm, whether by Islamic fundamentalists or by criminals and did not support a conclusion that the Applicant’s fear of harm by Islamic fundamentalist groups or individuals was well-founded. It had regard to the fact that the Applicant had had no personal experience of such harm in his periods of residence in Pakistan and had not nominated any experience of harm on the part of anyone known to him. The Tribunal accepted that independent information indicated that certain groups were at risk of harm by Islamic fundamentalists, but found that the Applicant, a Muslim of the majority Sunni denomination, did not share any characteristics with such groups. The Tribunal found that there was no evidence that indicated any risk on the part of Sunni Muslim Pakistanis who were irregular or infrequent in their religious habits, that the Applicant was not anti-Islamic, and that he did not hold that views which could be described as “unIslamic”.
Nor was the Tribunal satisfied there was a real chance or real risk that the Applicant would be kidnapped for ransom or extorted. It had regard to independent country information that the targets of such criminal enterprises were overwhelming members of religious minorities (such as Hindus and Sikhs) and that kidnappings of others perceived to be wealthy, such as visiting expatriates and foreigners, were random and rare and to the absence of evidence to indicate or support a conclusion that returning citizens were targeted for kidnap and ransom.
In addition, the Tribunal found (at [28]) that there was “no evidence … to indicate that it would be necessary for the Applicant to reveal in Pakistan either his former drug addiction or his criminal record in Australia” and “that the chance of these matters coming to the attention of others is remote”.
Finally, the Tribunal found no evidence to indicate that the Applicant would be unable to access health services, attend rehabilitation services or obtain treatment for his other health issues in Pakistan.
The Tribunal was not satisfied that the Applicant’s fear of harm in Pakistan was well-founded. For the same reasons it was not satisfied that he met the complementary protection criterion. It affirmed the decision not to grant the Applicant a protection visa.
This Application
The Applicant sought review by application filed in this Court on 24 June 2013. He now relies on a further amended application filed with leave of the Court on 25 September 2013. There are four grounds in the further amended application as follows:
1. The Tribunal’s finding at [28] that the chance of his former drug addiction or criminal record in Australia coming to the attention of others was remote on the basis there was no evidence that it would be necessary for the Applicant to disclose this history, was made on an implicit expectation that the Applicant would or should, not disclose his criminal history “unnecessarily”. The Tribunal erred in failing to consider whether the discretion required of the applicant not to disclose his criminal history “unnecessarily” would be a voluntary choice or influenced by the fear of harm.
2. The Tribunal failed to consider whether any harm the applicant would suffer if he did not act discreetly and “unnecessarily” disclosed his criminal history could constitute persecution or significant harm.
3. The implicit expectation that the applicant would or should not “unnecessarily” disclose his drug and criminal history implicitly required the applicant to take reasonable steps to avoid the claimed persecutory or other harm by being discreet about this history.
4. The reasoning and finding referred to in Ground 1 was arbitrary and or unreasonable, in that there was no material evidence either that the applicant would not disclose his history beyond what was “necessary” or that the chance of the history coming to the attention of others was remote.
Appellant S395/2002 issues
The first three grounds involve contentions that the Tribunal erred in the manner considered by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71. Counsel for the Applicant took issue with what was said to be the Tribunal’s implicit expectation that the Applicant either would not or should not disclose his criminal history or drug addiction beyond what was “necessary”. It was submitted that in proceeding on this basis the Tribunal had failed to consider whether the discretion not to make “unnecessary” disclosure would involve a voluntary choice or would be influenced by the Applicant’s claimed fear of harm. It was also submitted that the Tribunal had erred in failing to consider whether the harm the Applicant would suffer if he did not act discreetly and “unnecessarily” disclosed his criminal past could constitute persecution. Further it was said to be an error of law for the Tribunal to require the Applicant to be discreet about his criminal history to avoid the harm he claimed to fear.
The Applicant submitted that it was apparent from the evidence before the Tribunal that on removal to Pakistan he would stand out for his accent, Western attitudes and manners, dress and religious attitudes. It was contended that this would raise questions about the Applicant’s background and why he was in Pakistan and that the story of his young adult life, with an extensive criminal history, long periods in jail and a background of drug addiction, would have to be confronted by the Applicant whenever questions arose about issues such as his previous work experience, qualifications and family life. It was said to be clear from the claims made by the Applicant and the transcript of the Tribunal hearing that the Applicant expected and intended to deal honestly with his past and to tell the truth.
Counsel for the Applicant pointed out that in the statutory declaration accompanying his protection visa application the Applicant had not only expressed concern about problems he would have in getting employment and accommodation in Pakistan because of his criminal record for drug-related offences, but had also claimed that “disclosing this information when trying to obtain employment or accommodation may actually put me at risk of being targeted”.
In addition, the delegate had recorded that in the departmental interview the Applicant’s advisor had submitted that if the Applicant attempted to get a job he would be unlikely to be successful because of his Western values, criminal record and that his ability to subsist would be at risk for these reasons and also because he was a former drug user. In written submissions to the Tribunal, the Applicant’s advisor had submitted that having criminal convictions in Australia and being involuntarily returned as a failed asylum seeker put the Applicant at risk of both Convention-related persecution and significant harm.
In particular, reliance was placed on the evidence given by the Applicant at the Tribunal hearing. In discussion of his claim that he would be identified as someone who was not an observant Muslim, the Applicant had stated that if he did not go to the mosque local people in the small communities in Pakistan would know about it and “slowly steadily things will get out” and that:
…they’ll start saying this guy he, like he dresses different to us, he looks different, he speaks – he doesn’t know how to speak his language properly, yeah so that will make, you know, I think that will make me, over there.
Subsequently, the Tribunal put to the Applicant that his English-language skills might be of benefit to him in Pakistan in terms of things like employment. He responded that he did not know if he would be able to get employment over there. The Tribunal explained to the Applicant that English was an official language in Pakistan (which he did not know) and the hearing continued:
Q. And what that suggests to me is that your English language skills might actually be a benefit to you, an advantage to you if you go back to Pakistan. What do you think about that?
A. Yeah, most probably.
Q. In terms of things like employment.
A. Well employment, if we’re looking at that miss, like I don’t know if I’ll be able to get employment over there.
Q. What I’m – all I’m suggesting to you is that being able to speak English fluently as you do, that might be something that would assist you to get employment, particularly in a place like Karachi which is a very big city, a fairly metropolitan city.
A. Yeah, yeah.
Q. What do you think about that?
A I thought – yeah, maybe I thought because I’ve got a criminal record they won’t, I won’t be able to get employment disclosing that to my employer or for a house or anything like that.
Q Why do you think you would have to disclose your Australian criminal record?
A Because I thought that’s, you know I’d have to disclose it, I don’t know. I thought it was disclosed already.
Q You think that they already know about it?
A No, I thought, well if I was to tell them that then they would know about it, yeah, yeah.
Q I’m asking whether you..
A Yeah.
Q --is there any reason why you would tell them?
A Well, just because just telling the truth and I just, yeah, like, I’ve got a record and that’s about it, because I thought maybe they needed disclosure too.
Q All right.
A Yeah.
Q So you don’t know what the situation is about that sort of thing in Pakistan, getting employment in Pakistan?
A No.
Q I don’t either. I know in Australia, if you were go for a job in a government agency ..
A Yep.
Q .. that they will ask you, and they often do police checks.
A Yes.
Q But I don’t think that’s necessarily the case in the private sector.
A Oh yeah. I just thought that maybe if you’re deported or something like that, you know, they would be aware about it or I don’t know much. Over there like the only jobs I can think of would be like an English speaking job. I’m not sure how, like, the jobs work over there, like like, to be, you know like, it’s a pretty corrupt country so maybe they just give good jobs to people that they think, you know, they, they are known to them and, and, like I thought, maybe if I want to try and go for a job like that, you know, they would have my criminal record, it would be disclosed that he was from overseas. Just with my accent and all that, you know, like I thought maybe just because of the way I speak they will be able to – yeah, I’m not sure.
Q They will be able to what, make some inquiries about you do you think?
A Yeah that’s what I think, yeah.
Counsel for the Applicant submitted that it was apparent from this part of the transcript of the Tribunal hearing that the Applicant clearly evinced an intention to tell the truth and that he intended to be honest about his past, albeit for the pragmatic reason that people would find out anyway.
It was submitted that in contrast to the desire on the part of the Applicant to tell the truth and to deal honestly with his own history, in finding that there was no evidence to indicate that it would be necessary for the Applicant to reveal in Pakistan either his former drug addiction or his Australian criminal record the Tribunal had expected or assumed that the Applicant would not, or should not, disclose his criminal history unless it was necessary for him to do so.
The Applicant contended that in proceeding in this manner the Tribunal had arbitrarily imposed a condition of “necessity” and that it had failed to deal with the real dilemma the Applicant had to face if he wanted to deal honestly with people and tell the truth, given that questions about the Applicant’s past would come up both in relation to employment and housing and that disclosure could affect his chances of getting employment and housing.
It was submitted that the imposition of such a condition by the Tribunal begged questions and left them unanswered in the manner contended for in grounds one and two in the further amended application. This was said to constitute a constructive failure by the Tribunal to exercise its jurisdiction to consider what would happen if the Applicant were to disclose his history. The Tribunal was said to have erred in failing to consider whether if the Applicant did not disclose his history he would be acting in that way voluntarily or would be influenced by fear of harm. In addition it was submitted that, in proceeding in this manner, the Tribunal had failed to consider what would occur if the Applicant did not act discreetly and did disclose his history and whether any harm he would suffer if he did not act discreetly could constitute persecution or significant harm. It was said to be necessary in this context for the Tribunal to consider whether being open and truthful about his past beyond what was necessary would ruin the Applicant’s chances of getting employment or housing as he had claimed.
The Applicant submitted generally that the Tribunal had fallen into error in the manner considered in Appellant S395/2002 per McHugh and Kirby JJ at [34] – [35]. Appellant S395/ 2002 involved the consideration by a Tribunal of claims by appellants that they feared persecution in Bangladesh because of their homosexuality. After rejecting their claims of past persecution, the Tribunal had considered what might happen if the appellants returned to Bangladesh. It found there was no real chance they would be persecuted because of their sexuality. McHugh and Kirby JJ pointed out (at [33]) that “Central to that conclusion was the assumption or implicit finding … that homosexual men in Bangladesh will not be subjected to persecution if they act discreetly”. Their Honours accepted (at [34]) that the Tribunal had not imposed a requirement that the appellants be discreet about their membership of a group. Rather, it had found they would live discreetly in the future as they had done in the past because there was “no reason to suppose that they would not continue to do so if they returned home now”.
However McHugh and Kirby JJ continued (at [35]):
The reasons of the Tribunal show, however, that it did not consider whether the choice of the appellants to live discreetly was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly. It did not consider whether persons for whom the government of Bangladesh is responsible condone or inculcate a fear of harm in those living openly as homosexuals, although it seems implicit in the Tribunal's findings that they do. Nor did the Tribunal's reasons discuss whether the infliction of harm can constitute persecution where an applicant must act discreetly to avoid that harm. Nor did they discuss whether, if the appellants wished to display, or inadvertently disclosed, their sexuality or relationship to other people, they were at risk of suffering serious harm constituting persecution. If the Tribunal could not have properly exercised its jurisdiction without considering these matters, it has fallen into jurisdictional error and the Federal Court should have set aside the Tribunal's decisions.
Reliance was also placed on part of what was said by McHugh and Kirby JJ (at [39]), insofar as their Honours suggested that it may be an error of law to reject a Convention claim “because the Applicant can avoid harm by acting discreetly.”
Counsel for the Applicant submitted that except for the fact that the Tribunal made no explicit finding that the Applicant would be discreet about his criminal past, the factual circumstances in this case were analogous to those considered in Appellant S395/2002 and that it was implicit in the Tribunal’s reasoning that the Applicant would not disclose his criminal history beyond what was “necessary”. It was submitted that by reasoning that the chance of the Applicant’s criminal history being revealed in Pakistan was remote on the basis that there was no evidence that it would be necessary for the Applicant to reveal it, the Tribunal had effectively required the Applicant not to reveal his criminal history.
Reliance was placed on the fact that in the hearing the Applicant had claimed that he would not be able to get employment or accommodation “disclosing that [his criminal record] to my employer” that when questioned about disclosure the Applicant answered “I’d have to disclose it” and said “If I was to tell them they would know about it” and that the reason he would tell them was “Well just because telling the truth and I just, yeah, like I’ve got a record and that’s about it, cause I thought maybe they needed disclosure too”. It was submitted that this evidence revealed that the Applicant intended to reveal his history and to be honest and that while he acknowledged that potential employers would find out anyway, he had indicated his intention to tell the truth.
The Applicant submitted generally that in reasoning in the way it did the Tribunal had imposed an implicit obligation on the Applicant to take steps to avoid the feared harm by not disclosing or not telling the truth if asked questions that raised his past. It was pointed out that, as McHugh and Kirby JJ observed in Appellant S395/2002 at [43]:
The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality.
While the First Respondent did not accept that paragraphs [34], [35] and [39] in Appellant S395/2002 stood for the propositions asserted for by the Applicant, it was accepted that at a level of abstraction general propositions could be drawn from the decision in Appellant S395/2002 that were reflected in the manner in which grounds one, two and three in the Further Amended Application were expressed.
Thus, it was accepted that Appellant S395/2002 established that if the Tribunal found that a person would act in a way that would reduce a risk of persecution, it may be relevant to consider whether the person would act in that way because of the threat of harm (Appellant S395/2002 at [43] and [53] per McHugh and Kirby JJ and [88] per Gummow and Hayne JJ). This issue was raised by ground one, insofar as it was contended that if the Tribunal found that the Applicant would not disclose his criminal record it should have considered why he would not do so and whether it would be because he feared harm.
It was also accepted that (as raised in ground two) Appellant S395/2002 established that if a person will take steps to reduce the risk of persecution, it may be relevant to consider whether, despite the conduct that reduces the risk, there is still a real risk that the person will be persecuted (Appellant S395/2002 at [56] per McHugh and Kirby JJ and at [85] – [86] per Gummow and Hayne JJ). The First Respondent acknowledged that if there was evidence of past “discreet” conduct, the Tribunal may be required to consider the risk that a person will not act discreetly in the future or, even if he or she does act discreetly, that his or her Convention nexus (such as membership of a particular social group) might be inadvertently disclosed.
The First Respondent also accepted that (as raised by ground three) Appellant S395/2002 established that the Tribunal may err if it assessed a refugee claim on the basis that an applicant was expected to take reasonable steps to avoid persecution if returned to his or her country of origin and that in this sense the risk of harm was to be assessed based on what the applicant “will do” rather than what he could or should do (Appellant S395/2002 at [40] and [50] per McHugh and Kirby JJ and at [80] and [82] per Gummow and Hayne JJ). It was acknowledged that it was not appropriate for the Tribunal, generally speaking, to consider a claim by reference to what an applicant could do to avoid harm and that the risk of harm had to be assessed by making a prediction as to how the applicant would actually act.
However the First Respondent submitted that these general principles were subject to two caveats, both of which were relevant in this case. First, it was asserted that such principles could not be divorced from the facts of a particular case and that individual conclusions must be read in light of the evidence before the Tribunal and the Tribunal reasons as a whole (MZYUV v Minister for Immigration and Citizenship [2013] FCA 498 at [45] per Gordon J). In particular, it was said that regard should be had to all of what was said by McHugh and Kirby JJ in Appellant S395/2002 at [39]. Their Honours stated:
On a number of occasions this Court has said that proceedings before the Tribunal are inquisitorial in nature. The arguments and evidence of Applicants or the Minister cannot narrow the Tribunal’s jurisdiction to investigate the generality of a claim for a protection visa. Whatever the arguments or evidence of an Applicant, the Tribunal is entitled, but not bound, to look at the issue generally. If the Tribunal elects to exercise its jurisdiction more widely than the Applicant or the Minister has asked, however, it must do so in accordance with law. Given that the appellants claimed that Bangladesh was "not a safe place for [them] at all" and that they had "a real fear of persecution", the Tribunal was entitled to go beyond examining whether the appellants faced persecution because of their personal history. Notwithstanding that it rejected the particular claims of the appellants, it was entitled to investigate the matter more fully and determine whether the appellants' more general fear of persecution was well-founded. Rejection of an applicant's specific claims of persecution and the failure to identify other forms of harm provide a reason for holding that the applicant has no fear of persecution. But that is all. In the present case, for example, although the appellants did not raise any issue of modifying their behaviour because they feared persecution, it seems highly likely that they acted discreetly in the past because they feared they would suffer harm unless they did. If it is an error of law to reject a Convention claim because the applicant can avoid harm by acting discreetly, the Tribunal not only erred in law but has failed to consider the real question that it had to decide - whether the appellants had a well-founded fear of persecution.
The Minister submitted that it was made clear that the Tribunal was not bound to look at issues more “generally” than the case put by the Applicant. However if it chose to do so, then (as in Appellant S395/2002) it must act in accordance with law in so doing. It was submitted however that if the Tribunal in Appellant S395/2002 had simply rejected the appellants’ case as presented and had not gone on to consider the general issue of discreet-living homosexuals in Bangladesh, no error would have arisen.
In contrast, it was submitted that in this case, having regard to the transcript of the Tribunal hearing and the Tribunal’s reasons, it was apparent that the Tribunal had taken the more limited approach of confining its consideration to the claims as put and that it did not investigate any wider issue, such as that now raised for the Applicant. The Minister submitted that the Tribunal was not bound to look at wider issues generally and because it did not do so, it did not fall into the errors raised in the Further Amended Application.
The First Respondent submitted that the Applicant did not state an intention or a desire to disclose his criminal record voluntarily and that the Tribunal did not adopt an implicit expectation that the Applicant would not unnecessarily disclose his history. It was also contended that when one considered the factual context of the Tribunal’s decision closely, the Tribunal had not adopted an implicit expectation that the Applicant would not, or should, not “unnecessarily” disclose his criminal record. Rather it was submitted that the Tribunal finding that there was no evidence that it would be necessary for the Applicant to disclose his criminal record on return to Pakistan should be understood as a specific response to the Applicant’s unsupported assertion at the Tribunal hearing that he might be required to disclose his criminal record to potential employers or accommodation providers. On this basis it was submitted that grounds one to three were not made out as a matter of fact.
The First Respondent submitted that a further caveat to the principles outlined in Appellant S395/2002, and another reason these grounds were not made out, was that the Tribunal was not required to consider every modification of behaviour by an applicant by reference to the principles in Appellant S395/2002 because modification or a suggested modification of behaviour that did not involve the surrender of fundamental rights as protected by the Refugees Convention did not attract the principles considered in Appellant S395/2002 (see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40 at [93] – [94] per Kirby J, NALZ v Minister for Immigration & Multicultural Affairs (2004) 140 FCR 270; [2004] FCAFC 320 at [47] per Emmett J and S635 of 2003 v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCAFC 65 at [3] – [5] per Tamberlin J).
The First Respondent submitted that while Appellant S395/2002 involved a modification of behaviour that went to a question that was at the heart of what the Refugees Convention was intended to protect, the freedom to disclose one’s criminal or drug taking history is clearly outside the rights of the kind protected by the Refugees Convention so that, even if the Applicant’s case was otherwise accepted on the facts, the circumstances would not bring it within the principles considered in Appellant S395/2002.
The First Respondent submitted on this basis that grounds one, two and three failed as a matter of law as the principles in Appellant S395/2002 had no application because the modification of behaviour said to have been required by the Tribunal (a restraint on the ability to disclose one’s criminal history or drug taking) was not protected by the Refugees Convention (S635 of 2003 at [3] – [5] per Tamberlin J).
Consideration
It is relevant to consider first how the claims made by the Applicant raised his former drug addiction and criminal history. In the Statutory Declaration accompanying his protection visa application, in addition to claims he would be harmed because of his values, views of religion and westernised manner and dress and that he may be kidnapped, the Applicant stated:
Another problem that I will have in Pakistan is getting employment and accommodation. I do not speak, read and write Urdu. I have a criminal record for drug-related offences. I will not be able to obtain employment and disclosing this information when trying to obtain accommodation may actually put me at risk of being targeted.
While this may be seen as raising a claim of economic hardship (see s.91R(2)(d) of the Migration Act 1958 (Cth)), the Applicant did not assert or give evidence of a basis on which such claims could be seen as having a Convention nexus or amount to “significant harm” within s.36(2A) of the Act. He did not explain the manner in which he feared he could be “targeted”. Nor did he suggest that he intended or wanted to live openly as a former criminal or drug user.
According to the delegate’s account, at the Departmental interview the Applicant did not make claims for protection related to these matters. His adviser submitted that if the Applicant tried to get a job he would be unlikely to do so because of his Western values and his criminal record and that his ability to subsist would be at risk for these reasons and also because he was a former drug user. The delegate had pointed out that if the Applicant was unable to subsist it had to be on account of one of the Convention reasons.
The delegate accepted that the Applicant would have difficulty adapting to Pakistani society, but was unable to conclude that there was a nexus between any difficulties he may have in adapting or subsisting to a perception he held Western values or his criminal record or former drug use. The delegate saw no reason to conclude that the Applicant’s Australian criminal record or former drug use would be public knowledge in Pakistan and considered it highly speculative to conclude he would be denied the ability to subsist for reasons associated with either trait and found no substantial basis to support such claim. The delegate was not satisfied that the issue of whether the Applicant would have the ability to subsist in Pakistan for whatever reason was a type of harm within the definition of “significant harm”.
In written submissions to the Tribunal the Applicant’s adviser submitted generally that having criminal convictions in Australia put the Applicant at risk of Convention-related persecution and significant harm (on the basis that his ability to obtain employment and housing would affect his ability to subsist in Pakistan). However these claims were not presented in terms of any Convention nexus (unlike other claims said to be based on political or imputed political opinion). There was no suggestion this submission that these matters raised a claim such as membership of a particular social group. Nor was there any explanation of how the suggested harm would amount to significant harm within the definitions in the Act.
The part of the Applicant’s evidence at the Tribunal hearing relied on in support of grounds one, two and three is set out above. However his evidence about things getting out and the claim that “that will make me, over there” was in response to questions about how he would be identified as not being an observant Muslim and had nothing to do with his criminal history or drug use. It is the case that the Applicant then expressed concern about his prospects of obtaining employment and housing but, contrary to the Applicant’s submission, his qualified and somewhat hesitant evidence does not go so far as to amount to an indication of an intention to disclose voluntarily his criminal record. He made no reference to disclosure of his history as a drug user and did not claim that the fact of that history put him at risk of harm.
Rather, when the Tribunal put to the Applicant that being able to speak English fluently may assist him to get employment, he initially agreed and then, somewhat uncertainly, indicated that “maybe I thought because I’ve got a criminal record they won’t, I won’t be able to get employment disclosing that to my employer or for a house or anything like that”. Importantly, when asked why he thought he would have to disclose his Australian criminal record the Applicant stated he thought it was “disclosed already”. Read in context, the Applicant’s subsequent response to the question of whether there was any reason he would tell them (“Well just because telling the truth and I just, yeah, like I’ve got a record and that’s about it, cause I thought maybe they needed disclosure too”) does not evince an intention to disclose voluntarily his past record, as is apparent from his subsequent clarification:
Q. So you don’t know what the situation is about that sort of thing in Pakistan, getting employment in Pakistan?
A. No.
Q. I don’t either. I know in Australia if you were to go for a job in a government agency –
A. Yep.
Q. –that they will ask you and they often do police checks.
A. Yes.
Q. But I don’t think that’s necessarily the case in the private sector.
A. Oh yeah. I just thought that maybe if you’re deported or something like that, you know, they would be aware about it or I don’t know much. Over there like the only jobs I can think of would be like in English speaking jobs. I’m not sure how, like the jobs work over there, like, like to be, you know, like it’s a pretty corrupt country so maybe they just give good jobs to people that they think, you know, they, they are known to them and, and like I thought maybe if I want to try and go for a job like that, you know, they would have my criminal record, it would be disclosed that he was from overseas. Just from my accent and all that, you know, like I thought maybe just because of the way I speak they will be able to – yeah I’m not sure.
Q. They will be able to what, make some inquiries about you do you think?
A. Yeah that’s what I think, yeah.
In other words, the Applicant indicated that if he was required to disclose his past criminal record he would do so, but he was unaware of whether such disclosure was required in Pakistan. He did not clarify how these claims raised any Convention nexus or claim of significant harm within the complementary protection provisions in the Act. There is nothing in the Tribunal’s account of the hearing to suggest that the Tribunal understood that the Applicant was claiming that he wanted to disclose his criminal record voluntarily.
Before the hearing ended, the Tribunal asked the Applicant about his parents’ support for him if he went back to Pakistan. He replied that they had made it clear “they would help [him] a little bit financially just to get on [his] feet” and agreed that they were both working.
In its findings and reasons the Tribunal accepted that the Applicant would experience difficulty adjusting to living in Pakistan, but found that his difficulties were likely to be ameliorated by his parents’ undertaking to provide financial support and his English language skills. Considered in context, this finding clearly encompassed the Applicant’s claims about his ability to obtain employment or accommodation and hence to subsist in Pakistan. In addition, the Tribunal made the finding with which the Applicant takes issue as follows:
There is no evidence before me to indicate that it would be necessary for the applicant to reveal in Pakistan either his former drug addictions or his criminal record in Australia, and I find that the chance of these matters coming to the attention of others is remote.
These findings were part of the reasons the Tribunal concluded that it was not satisfied that the Applicant’s fear of harm was well-founded or that there was a real risk of significant harm if he returned to Pakistan.
As indicated, in support of the first three grounds in the Further Amended Application the Applicant relied on remarks of McHugh and Kirby JJ in Appellant S395/2002. Gummow and Hayne JJ also formed part of the majority in that case. As Kirby J subsequently stated in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40 at [89]:
The common ground in the two joint majority reasons in S395 was the need for the decision-maker to focus attention on the propounded fear of the individual Applicant and whether it was “well-founded”; to consider that issue on an individual basis and not, for example, be reference to a priori reasonable conduct that could or might avoid persecution; and to concentrate on what would happen to the applicant in fact, not what could or might happen if the applicant behaved in a particular way that would reduce the risk of persecution, as for example by behaving discreetly. (Emphasis added)
(and see Appellant S395/2002 per McHugh and Kirby JJ at [40] – [45] and per Gummow and Hayne JJ at [82] – [83]).
As the First Respondent submitted, it is necessary to consider the factual context of the Tribunal’s decision closely. The Applicant’s claims about harm associated with disclosure of his criminal history or drug use suggested an impact on his ability to find employment and housing and hence to subsist, but did not assert a Convention nexus or that such suggested impact would be within the definition of significant harm. Moreover it is apparent from the qualified and somewhat hesitant nature of the Applicant’s evidence in the part of the transcript relied on by him that the Applicant did not say that he had a desire to live openly in the sense of telling the truth or expressing his history as a drug user and as a criminal. Rather, he expressed concern that, in seeking to obtain employment and/or accommodation, he would be required to disclose this past. In that context he indicated that if he was so required then he would tell the truth about his past. However on the Applicant’s own admission, he was not aware of whether such disclosure was required in Pakistan. He thought so, but did not know. In other words, the Applicant’s evidence was to the effect that if required in an application to make disclosure he would do so truthfully, but he did not go so far as to state an intention or a desire to disclose his criminal record voluntarily.
When the Tribunal came to consider the Applicant’s claims and evidence, it found that there was no evidence to indicate that it would be necessary for the Applicant to reveal in Pakistan either his former drug addiction or his criminal record in Australia. The Tribunal found that the chance of these matters coming to the attention of others was remote.
I am not satisfied that the Tribunal adopted an implicit expectation that the Applicant would not or should not “unnecessarily” disclose his criminal record. Rather the Tribunal finding that there was no evidence that it would be necessary for the Applicant to disclose his criminal record on return to Pakistan is to be understood in context as a specific response to the Applicant’s unsupported assertion at the Tribunal hearing that he might be required to disclose his criminal record to potential employers or accommodation providers. The Tribunal found there was no evidence that he would be so required.
It is clear that the Tribunal was deciding the issue on the narrow basis of the claims raised by the Applicant. In that context it considered whether in fact he would be required to disclose information about his past record when making applications for accommodation and employment (see SZATV at [89]). It found, in effect, that there was no evidence to indicate that he would be so required. Moreover, in contrast to the situation considered in Appellant S395/2002, the Tribunal did not go on to consider generally the position of former criminals in Pakistan. It was not obliged to do so because no claim was made on that more general basis. The principles in Appellant S395/2002 did not arise because the Tribunal was not requiring the Applicant to make any modification of his behaviour.
Thus, insofar as it was asserted (in ground one) that the Tribunal should have considered whether any “discreet” non-disclosure by the Applicant of his criminal history would be influenced by the fear of harm, the Applicant did not claim a desire to disclose his criminal record (or his drug use) voluntarily. Nor is this a case in which any issue of adopting a discreet lifestyle arose (cf. Appellant S395/2002). The Applicant did not claim an intention or desire to express his history or live openly as a former drug user and/or convicted criminal. All that he claimed was that he was concerned that in seeking to obtain employment and accommodation he would be required to disclose his past and if he was so required he would tell the truth about it. As discussed in Appellant S395/2002 (at [39]), per McHugh and Kirby JJ it was unnecessary for the Tribunal to go beyond the Applicant’s claims by considering whether he would be prevented from disclosing such information because of the fear of harm. The Tribunal did not have to consider whether the applicant would act in a certain way because of a desire to reduce the risk of serious harm (or significant harm) because it found that he would not be required to act in that particular way and the evidence was not to the effect that in fact he intended or desired to disclose his criminal record voluntarily. Ground 1 is not made out as the Tribunal did not proceed in the manner contended for by the Applicant.
In ground two it is asserted that the Tribunal failed to consider whether any harm the Applicant would suffer if he did not act discreetly and “unnecessarily” disclosed his criminal record could constitute persecution or significant harm. However the Tribunal held that the risk of this information coming to the attention of others was remote. Having rejected this fundamental premise of the Applicant’s claim, it was not necessary for the Tribunal to consider whether, on the remote chance such information came to the attention of others, any persecutory harm would follow (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 75 ALD 630; [2003] FCAFC 184 at [47]). In any event, the Tribunal also found (relevant to both the question of serious harm and significant harm) that the Applicant’s difficulties adjusting to living in Pakistan (which clearly encompassed his accommodation and employment and hence subsistence issues) were likely to be ameliorated by his parents’ undertaking to provide financial support as well as his English language skills. Ground two is not made out.
In respect of the third ground in the Further Amended Application it was asserted that the Tribunal effectively required the Applicant to modify his behaviour to avoid harm. However, the Applicant did not express the desire to disclose his criminal record voluntarily. There was no evidence he had done so in the past. The Tribunal did not impose a requirement that the Applicant take reasonable steps to avoid harm, but simply considered the claims as presented and what would in fact be likely to occur in the individual circumstances of the Applicant. The Tribunal did not expect the Applicant to take any reasonable steps to avoid persecution. Rather, it considered the claim (as expressed) that if in making an application for employment or accommodation, the Applicant was required to disclose something (such as his criminal history), then he would disclose it truthfully. There was no modification of behaviour involved or required. The Tribunal simply did not accept the premise of that claim because there was no evidence that the Applicant would be required to disclose such matters. Hence as a matter of fact this ground is not made out.
In the alternative, even if the Applicant’s claims and the approach taken by the Tribunal are to be seen in the manner contended for by the Applicant, the principles in Appellant S395/2002 have no application as a matter of law. In SZATV Kirby J addressed the application of the reasoning in Appellant S395/2002 in considering whether the Tribunal had fallen into error in proceeding on the basis that the appellant could move elsewhere in Ukraine (even though he might not be free to express his political views by continuing to work as a journalist). Relevantly, his Honour pointed out (at [84]) that the majority in Appellant S395/2002 had decided that refugee applicants were not required to take reasonable steps to avoid persecutory harm “if this involved them in a denial of the basic rights to freedom from persecution which the Refugees Convention is designed to uphold and safeguard”.
This limitation on the application of the principles in Appellant S395/2002 is of relevance in the present case if, contrary to my view, the Tribunal expected that the Applicant could (rather than would) act discreetly in relation to disclosure of his criminal history. It was considered by Emmett J in NALZ, which involved an Indian national who claimed to have a well-founded fear of persecution owing to suspected connections with a Sri Lankan separatist organisation based on his religion as a Muslim and his engagement in the business of selling electrical goods to Sri Lankan nationals. In essence, the applicant in NALZ had claimed that he would be imputed with an anti-Government belief because he sold electrical goods to Tamils and that doing this would give rise to an imputation that he supported the Tamil Tigers. The Tribunal had found that his religion was immaterial and concluded that he could avoid future arrest by not selling electrical goods to Sri Lankan nationals and that it would not be unreasonable for him to avoid arrest by so doing.
In issue in the Full Court of the Federal Court in NALZ (on appeal from a judgment of a single judge of the Federal Court) was whether this approach of the Tribunal was an impermissible variation on the theme of “acting discreetly”. Emmett J and Downes J distinguished Appellant S395/2002. Madgwick J (dissenting) considered that the Tribunal’s reasoning involved the very kind of error that Appellant S395/2002 had identified.
Relevantly, as Kirby J pointed out in SZATV, Emmett J suggested in NALZ that Appellant S395/2002 could be distinguished not only on the facts but also on the basis that the suggested adjustment of ceasing to sell electrical goods “did not involve, in itself, surrender of fundamental rights of the kind protected by the Refugees Convention categories” (SZATV at [93]). Emmett J made the point that, unlike the situation in Appellant S395/2002, the applicant in NALZ did not claim he feared persecution by reason of any opinion or belief he held or his membership of a particular social group. The same may be said in this case in relation to the part of the Applicant’s claims in issue.
In SZATV Kirby J suggested that such reasoning offered an “acceptable way” of reconciling the High Court’s holding in Appellant S395/2002 with authority in relation to the availability of internal relocation where that course would be reasonable where it was neither contrary to the facts (because the source of persecution was local) nor contrary to the essential purpose of the Refugees Convention of protecting “the important, but limited grounds of persecution specified in the Refugees Convention” (at [94]).
This limitation on the application of the principles in Appellant S395/2002 was also referred to with approval by Tamberlin J in S635 of 2003. In S635/2003 the appellant had claimed, among other things, to fear persecution because he had converted from Christianity to Islam, but had subsequently re-converted to Christianity. Relevantly, in the Full Court of the Federal Court the appellant unsuccessfully sought to raise an additional ground of appeal to the effect that the Tribunal’s reasoning required him to conceal that part of his past relating to his apostasy that gave rise to a real chance of persecution on religious grounds contrary to the principles in Appellant S395/2002.
Tamberlin J considered whether the suggested modification of behaviour involved the surrender of fundamental rights of the kind protected by the Refugees Convention categories. Relevantly, his Honour expressed the view (at [5]) that that the appellant’s inability to publicly express his history of apostasy was peripheral to the free exercise of his fundamental beliefs and not sufficient to give rise to persecution in the Convention sense.
Further, as Gray J stated in MZXRI v Minister for Immigration and Citizenship (2008) 105 ALD 1; [2008] FCA 1613 at [22]:
…a person will only be seen to have a well-founded fear of persecution if there is a need, or a perceived need, to curtail activities in order to avoid persecution. Given that s 91R of the Migration Act equates serious harm with persecution for this purpose, it will be necessary to show that a person must adopt, or perceives the need to adopt, restrictions on that person’s activities in order to avoid serious harm. The imposition of restrictions on activities simply to avoid threats, or simply to avoid harm that does not amount to serious harm, will not itself become a form of serious harm.(Emphasis added).
Finally, while judgment in this matter was reserved, the Full Court of the Federal Court considered the principles arising out of Appellant S395/2002 and the approach taken in NALZ and SZATV in Minister for Immigration and Citizenship v SZSCA [2013] FCA 155. The parties were offered, but declined, the opportunity to make further submissions in relation to SZSCA.
The majority in SZSCA considered that the principles in Appellant S395/2002 were applicable to a case in which the Tribunal had found that the applicant, a truck driver, would not face a real chance of persecution if he were to return to his most recent place of residence and change his occupation. However in that case the Tribunal had found that if the applicant resumed work as a truck driver carrying construction materials he would face a real chance of serious harm from the Taliban by reason of an imputed political opinion inherent in such conduct (SZSCA at [57]-[59], [64], [66], [75] and [80] per Robertson and Griffiths JJ). In addition, their Honours were of the view that the Tribunal had proceeded in a manner inconsistent with the principles in Appellant S395/2002 in that it had considered what the applicant could do to avoid persecution, rather than what he would in fact do (at [58]-[63]).
Relevently, Robertson and Griffiths JJ found that it was inconsistent with NALZ (at [50]) and with Appellant S395/2002 to expect or require a visa applicant to cease the behaviour that was the foundation for the particular Convention nexus attribute relied on (in SZSCA an imputed or attributed political opinion).
In the present case, on my view the Applicant was not required or expected to cease any past behaviour, but in any event even if the Tribunal had been in effect requiring or expecting the Applicant not to unnecessarily disclose his drug and criminal history (and in that sense to be discreet), this would not require him to modify conduct that was the foundation for a claim to protection for one of the reasons within the Refugees Convention. The Applicant did not suggest that he feared persecution by reason of his membership of a particular social group or that his claims in relation to his criminal history and/or drug use had any nexus with religion, race or actual or imputed political opinion (see SZSCA). In other words, there was no expectation of abnegation of any Refugee Convention attribute. Any discretion in disclosure of the Applicant’s past criminal history would not involve a “surrender of fundamental rights of the kind protected by the Refugees Convention categories” (SZATV at [93] per Kirby J).
The unrestricted freedom to disclose the history of how one came to have a criminal record or the freedom to disclose one’s history of drug abuse is clearly outside the rights which the Refugees Convention protects. Thus the circumstances are not such as to bring this case within the principles considered in Appellant S395/2002 and grounds one to three fail on this basis.
I note that the grounds relied on by the Applicant also appear to suggest error in relation to the Tribunal’s consideration of the complementary protection criterion as well as the Refugees Convention criterion. However the manner in which the principles in Appellant S395/2002 would apply in relation to complementary protection claims was not elaborated on in submissions. Nor was I addressed on whether the Tribunal is permitted to require or expect an applicant for complementary protection to take reasonable steps to avoid significant harm of the type covered by the complementary protection criterion. In any event, when the Tribunal decision is read fairly and as a whole, it is clear that the Tribunal did not accept that the Applicant’s claims about his ability to subsist amounted to a real risk of significant harm within the complementary protection criterion.
For the reasons discussed above, I am satisfied that the manner in which the Tribunal proceeded was not contrary to the principles in Appellant S395/2002 at [43]-[58] per McHugh and Kirby JJ, (and see Appellant S395/2002 at [82] per Gummow and Hayne JJ and SZATV at [84]-[89] per Kirby J). Hence both as a matter of fact and law the contentions in grounds one to three are not made out. No jurisdictional error on the part of the Tribunal is established on any of the bases contended for in these grounds.
Ground 4 in the Further Amended Application is that the Tribunal’s reasoning and finding referred to in ground one (that the chance of the Applicant’s former drug addiction or criminal history coming to the attention of others was remote) was arbitrary and unreasonable in that there was no material evidence either that the Applicant would not disclose his history beyond what was “necessary” or that the chance of the history coming to the attention of others was remote.
In particular, the Applicant submitted that the assumption that he would not unnecessarily disclose his criminal history was arbitrary and that the arbitrary nature of this finding affected the rational basis of the Tribunal’s conclusion that the chance of his criminal history coming to the attention of others was remote. It was contended that such an assumption was arbitrary, not only because there was no evidentiary basis for it, but also because the Applicant’s evidence was that he would tell the truth about his criminal history and that he thought employers needed disclosure. It was pointed out that the Tribunal had made no finding against the Applicant’s credibility and that the existence of his extensive criminal record, the lengthy periods he had spent in prison and the fact that he had spent most of his adolescence and all of his adult life in Australia were not in issue. It was also pointed out that Tribunal had not taken issue with the Applicant’s claim that he would be recognised to be from overseas from his dress, accent and cultural and religious attitudes. It was also said to be relevant that at the hearing the Tribunal member had said that she did not know about what the situation was about getting employment in Pakistan and that there was no inquiry at the Tribunal hearing in relation to the Applicant’s claim that his criminal history would prevent him from getting accommodation. It was submitted that the Tribunal did not consider and made no finding against the claimed consequences of disclosure in respect of either employment or accommodation. In addition, the positive finding about the chance of the Applicant’s criminal history coming to the attention of others being remote was said to be dependent on the Applicant not “unnecessarily” disclosing his criminal history.
The Applicant submitted that it was not open for the Tribunal to engage in this process of reasoning or to make the findings it made on the material before it, having regard to the approach taken in SZMDS v Minster for Immigration and Citizenship (2010) 240 CLR 611; [2010] HCA 16 at [133] and [135] – [136] per Crennan and Bell JJ that (in contrast to the situation in SZMDS), on the probative evidence before the Tribunal a logical or rational decision maker could not have come to the same conclusion as the Tribunal as there was no probative evidence which contradicted the Applicant’s claims (in particular his wish to be candid and honest) and nothing to indicate that the Applicant had any intention of lying or not telling the truth. For the same reasons it was submitted that the Tribunal’s reasoning could be said to be arbitrary (SZMDS at [116]).
As the First Respondent contended and as discussed in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; FCAFC 58, the threshold for illogicality or irrationality is high. Crennan and Bell JJ stated in SZMDS at [130]:
In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
Their Honours when on to state at [131]:
…the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
(and see Heydon J at [78] and [86])
Their Honours explained that the correct approach was to ask whether it was open to the Tribunal to engage in its process of reasoning and to make its findings “on the material before it” (at [123]) and that this involved a consideration of all the evidence (at [134]). Thus, as was stated at [135]:
…Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
As Rares J in SZOOR pointed out (at [15]):
The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.
Moreover, in considering whether the decision was irrational or arbitrary on the basis that it was not supported by evidence, it is relevant to have regard to the Tribunal’s function. While the Applicant bore no legal onus of proof, it was for him to put forward evidence capable of satisfying the statutory criteria for a protection visa. There is no requirement that there be evidence rebutting the claims of an applicant before a Tribunal can hold that a particular assertion is not made out. Nor is the Tribunal required to accept uncritically the claims of an applicant (see SZQWV v Minister for Immigration and Citizenship [2012] FCA 817 at [21] - [23] per Gilmour J and authorities cited therein).
In the particular circumstances of this case, the finding by the Tribunal that there was no evidence that it would be necessary for the Applicant to disclose his criminal record or his drug addiction in Pakistan was clearly open to it in circumstances where the Applicant had provided no evidence to the contrary, apart from his own assertion that he may have to disclose these matters. Indeed, he had accepted at the hearing that he did not know, one way or the other, whether he would be required to disclose such information to prospective employers or whether they would know in advance of his criminal history.
Insofar as the Applicant claimed that the Tribunal made no finding against the claimed consequences of disclosure in relation to either employment or accommodation, the Tribunal found that the prospects of disclosure were remote. In those circumstances it was not necessary for the Tribunal to go on to consider whether harm suffered in the event of disclosure would amount to persecution.
The Tribunal made a positive finding that the chance of these matters coming to the attention of others was remote and not simply a negative finding of non-satisfaction. However this was a factual assessment involving questions of judgment and degree. The Tribunal did not need evidence to rebut the Applicant’s claims in this regard. It was entitled to make such an assessment having regard to the lack of evidence submitted by the Applicant.
It has not been established that the decision was irrational or unreasonable or arbitrary in the manner contended for by the Applicant. The Applicant did not state that he intended to reveal his past. His remarks about honesty if the issue arose do not go to show that the Tribunal acted arbitrarily or capriciously or that it reasoned in a way that no reasonable person could have reasoned. The Tribunal considered, in its description of the hearing, the Applicant’s claims in relation to whether his drug addiction or criminal history would become known. However the Tribunal proceeded on the basis that the Applicant did not give a clear indication of intending to reveal his past. It was not arbitrary or unreasonable for the Tribunal to proceed on this basis. The Tribunal addressed the claims made and evidence given by the Applicant in finding an absence of evidence to indicate it would be necessary for the Applicant to reveal these matters and that the chance of such matters coming to the attention of others was remote. In other words, it was open to the Tribunal to engage in this process of reasoning to make these findings on the material before it (SZMDS at [133]). Indeed, a mere wrong finding of fact would not suffice (SZOOR at [12] per Rares J). It cannot be said that no reasonable or rational decision-maker could have reached this decision on the material before the Tribunal (SZMDS at [130], SZOOR at [13] – [15]). Ground 4 is not made out.
As none of the grounds relied upon has been established the application must be dismissed.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 17 April 2014
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