SZTFI & Anor v Minister for Immigration & Anor - [2014] FCCA 740

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTFI & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 740

Catchwords:
MIGRATION – Refugee Review Tribunal (Tribunal) decision – whether Tribunal was required to assess the risk of future harm to the applicant on the basis that facts asserted by the applicant which the Tribunal neither accepted nor rejected may be true – whether the Tribunal assessed the risk of future harm to the applicant on the assumption that such asserted facts were not true – whether the Tribunal correctly understood that the applicant’s claim for complementary protection was based on the same asserted facts as the applicant’s claim for being a refugee within the meaning of the Refugee Convention – whether there was before the Tribunal a claim based on an asserted fear of persecution in the form of repression of political opinion – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.88F

Migration Act 1958 (Cth), ss.36(2)(a), 476

Appellant S395/2002 & Anor v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
SZSGA v Minister for Immigration and Border Protection [2013] FCA 774
SZSHK v Minister for Immigration & Anor [2013] FCAFC 125

First Applicant:

SZTFI

Second Applicant:

SZTFJ

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2013 of 2013

Judgment of:

Judge Manousaridis

Hearing date:

11 December 2013

Delivered at:

Sydney

Delivered on:

11 April 2014

REPRESENTATION

Counsel for the Applicant:

Mr Hughes

Solicitors for the Applicant:

D’Ambra Murphy Lawyers

Counsel for the Respondent:

Mr Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Subject to orders 3 and 4, the application is dismissed.
The applicant pay the costs of the first respondent.
Pursuant to s.88F of the Federal Circuit Court of Australia Act 1999 (Cth), up and until 28 April 2014 these reasons for judgment not be disclosed other than to:
(a)the parties and their external legal representatives; and
(b)the Court.
There be liberty to apply on two days’ notice to the Court for:
(a)the extension of the order referred to in paragraph 3; or
(b)the making of any other order under s.88F of the Federal Circuit Court of AustraliaAct 1999 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2013 of 2013

SZTFI

First Applicant

SZTFJ

First Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

In most cases the effective exercise of this Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (Act) to review decisions of the second respondent (Tribunal) requires the Court to manifest in its reasons for judgment an understanding of the claims for protection an applicant made before the Tribunal, and the reasons for which the Tribunal affirmed the decision under review.
At the commencement of the hearing, however, counsel for the first applicant (applicant) informed the Court that to set out in my reasons for judgment the claims the applicant made before the Tribunal, and the Tribunal’s reasons for decision, may enable authorities of the country of which the applicant is a national to readily ascertain the identity of the applicant; and if those authorities ascertain his identity, the applicant will be exposed to a significant risk of harm if he is required to return to his country of nationality. I indicated that I would attempt to write my reasons in a way that would not reveal the applicant’s identity or country of nationality.[1]
[1] I am satisfied I have power under s.88F of the Federal Circuit Court of Australia Act 1999 (Cth) to so draft my reasons.
To that end, in these reasons I will:
a)refer to the applicant’s country of nationality as the “applicant’s country of nationality” (ACN), and to the two state agencies of the ACN which are relevant to the applicant’s claimed fear of persecution as “State Agency 1” (SA1) and “State Agency 2” (SA2);
b)I will replace each date with “[X]”; and
c)order that, up to and including 28 April 2014, these reasons not be disclosed to any persons other than the parties and their legal representatives.

The applicant’s claims for protection

The applicant’s claim for protection before the Tribunal was based on the following alleged facts:
a)The applicant joined SA1 in [X], and remained a member of SA1 until he retired in [X].
b)All telephone calls, contacts and movements of members of SA1 were monitored by intelligence services nestled in SA1 who tried to purify SA1 internally from all opposition.
c)On his retirement, the applicant was required to join SA2.
d)After the applicant joined SA2 the applicant was required to train for anti-demonstration activities.
e)To avoid participating in anti-demonstration activities, the applicant resigned from SA2 and re-joined SA1. The applicant had no choice when he re-joined SA1 but to serve in SA1 for a minimum of four years.
f)The applicant attended a meeting with other members of SA1 at which a public official spoke. As a result of an incident at the meeting, a friend of the applicant was arrested. Later, the applicant was questioned by the ACN’s intelligence services, at the end of which the applicant felt compelled to sign a strong declaration of loyalty, and to agree to keep secret the arrest of the applicant’s friend.
g)Sometime after these events, the applicant decided to visit relatives in Australia. As a member of SA1, however, he was not permitted to leave the ACN but, after discovering through inquiry that his name was not on any list of persons who were not permitted to leave the ACN, the applicant left the ACN.
h)Shortly after the applicant left the ACN, SA1 became aware of the applicant’s departure from the ACN and searched the applicant’s house for books, diaries and other materials. Those materials contained opinions that were hostile or critical of the government of the ACN.
i)The applicant consequently claimed fear of being “persecuted for having political opinion against . . . the current regime [of the ACN] and my Ideologies and political views that have been revealed to the authorities of my country”.[2]
j)The applicant also claimed fear of significant harm in the ACN because “he believed he would be charged with being a spy on [his] return to” the ACN.[3]
[2] CB62
[3] CB192, [88]

Tribunal’s decision

The Tribunal was of the view that the applicant’s fear of harm if he were to return to the ACN “relates solely to his concern that a political opinion might be imputed to him”.[4] As viewed by the Tribunal, the success of the applicant’s claim for protection, therefore rested on the resolution of three issues.[5] The first was whether the applicant’s claim that he has been imputed in the ACN with a dissident political opinion was credible. The second was whether, as a failed asylum seeker, the applicant might face Convention-based persecution on his return to the ACN.[6] And the third was whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to the ACN, there is a real risk the applicant will suffer significant harm.
[4] CB192, [89]
[5] CB180, [11]-[14]
[6] The reference to “Convention” is a reference to the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967). In these reasons, the word “Convention”, whenever used, is intended to refer to that Convention.
As to the first issue:
a)the Tribunal referred to and accepted country information indicating that former members of SA1 had shown dissatisfaction with the regime in the ACN, and that former commanders faced severe reaction from government officials for expressing their views;[7]
[7] CB181, [21]
b)The Tribunal understood the applicant:
i)said he knew it was dangerous that he had left the ACN “but he had not thought that [SA1] would find out”;[8]
[8] CB185, [48]
ii)“now claims that there have been very serious consequences for him as a result of his decision to leave [the ACN] in [X]”;[9] and
[9] CB185, [49]
iii)“is claiming to have been a serving senior officer in the [SA1] who chose to make this trip without [SA1] knowledge or authority, in mid-contract, using a passport to which he was not entitled, and that he left [the ACN] expecting to return to complete his contract with the [SA1]”.[10]
[10] CB186, [50]
c)although the Tribunal had some doubt about the applicant’s having been re-employed by SA1, it could not find with confidence the applicant did not resume employment with SA1, and, for that reason, the Tribunal “considered his claims on the assumption that he did”;[11]
d)the Tribunal was “unable to establish with confidence what [the applicant’s] employment relationship was with [SA1] by [X]”;[12] however, the Tribunal did not “necessarily accept that [the applicant] remained in that employment as he claimed”, and the Tribunal did not accept “that it had the consequences he claimed”;[13]
e)the Tribunal was satisfied there was no restriction on the applicant’s departure from the ACN in [X];[14] and it was not satisfied that, when he left the ACN, the applicant considered there was any risk to him in doing so, or that there was in fact any such risk;[15]
f)the Tribunal was satisfied of the matters referred to in (e) because:
i)the applicant’s going on holiday for the claimed purpose of visiting his brothers in Australia when one of his brothers had visited the applicant in [X] seemed “incompatible with [the applicant’s] claimed concerns that he was not allowed to travel abroad”;[16]
ii)the applicant’s deciding to visit Australia in the middle of what he claimed to be a four-year contract for no other reason than that he was an “emotional person” indicated that the applicant’s decision to visit his brothers in Australia was “more consistent with having no contract with [SA1] by [X] and being free to leave [the ACN] as an ordinary citizen at that time”;[17] and
iii)the applicant’s willingness to leave the ACN through the international airport in the ACN using an ordinary passport of the ACN was “entirely consistent with his having established that [the applicant] was entitled to leave using it”.[18]
g)the Tribunal did not accept that, after he left the ACN, the applicant’s home was searched and dissident political materials were found there.[19]
[11] CB185, [43]
[12] CB186, [50]
[13] CB185, [43] (emphasis in original)
[14] CB186, [50]
[15] CB186-187, [50]
[16] CB186, [50], first dot point, first paragraph.
[17] CB186, [50], first dot point, second paragraph.
[18] CB186, [50] second dot point.
[19] CB190, [74]
On the basis of these findings, the Tribunal concluded:[20]
I do not consider that the applicant has a well-founded fear of being persecuted in [the ACN] for the Convention reason of political opinion. If he returns to [the ACN] he will do so as a person who has a record of long-standing loyalty to the regime. I have not accepted that any material has been located at his home that might change this perception of him.
[20] CB191, [78]
As to the second issue, the Tribunal concluded the applicant did not have a well-founded fear of persecution because he was a failed asylum seeker. That is so because the Tribunal could see no reason why the authorities in the ACN would regard the applicant as a person who had sought asylum outside of the ACN.[21]
[21] CB192, [84]
As to the third issue, the Tribunal found that the applicant’s fear of harm in the ACN “relates solely to his concern that a political opinion might be imputed to him” and that for “the reasons set out… in relation to the Refugees Convention [the Tribunal was] not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being returned to [the ACN], there is a real risk he will suffer significant harm”.[22]
[22] CB192, [89]

First ground of review – failure to consider a claim

The applicant submits the Tribunal failed to consider the following claim (Asserted Claim) the applicant says was squarely before it:[23]
[T]he first applicant had a well-founded fear of persecution by reason of the fact that, as a serving senior member of the [SA1] who had left the country without explanation for over 18 months, he would have imputed to him by [the ACN’s] authorities a political opinion adverse to the [ACN’s] regime, and he would suffer persecution as a result.
[23] Paragraph (h) of the particulars to ground 1 of the amended application.
In the amended application, and in his written submissions, the applicant asserts the Tribunal was bound to determine the Asserted Claim on the assumption that the applicant had re-joined SA1 in [X] and had remained an employee of SA1 up to the time he left the ACN in [X].[24] In the amended application and in his written submissions, the applicant says the Tribunal was so bound because the Tribunal was unable to find with confidence that the applicant did not re-join SA1 in [X] as the applicant had claimed.[25] In his written submissions, and relying on the Full Federal Court decision in Minister for Immigration & Multicultural Affairs v Rajalingam,[26] the applicant also contended the Tribunal was bound to consider the claim because “[t]hat was required by the ‘real chance’ test that the Tribunal was bound to apply”.[27]
[24] Paragraph (e) of the particulars to ground 1; Applicant’s written submissions, [9]
[25] Paragraph (d) of the particulars to ground 1 of the amended application; Applicant’s written submissions, [9]
[26] (1999) 93 FCR 220 (Sackville, North and Kenny JJ)
[27] Applicant’s written submissions, [9]
In oral address, counsel for the applicant modified these submissions. Counsel did not submit the Tribunal was required to consider the applicant’s claim on the assumption that the applicant re-joined SA1 in [X] and remained a member until [X] when he departed from the ACN. Again relying on Rajalingam, counsel submitted:
a)the Tribunal was required, but failed, to consider whether the applicant had a well-founded fear of persecution if he were to return to the ACN on the assumption there was a possibility that it was true that the applicant had re-joined SA1 in [X] and remained a member until 2011 when he departed the ACN (“away-without-official-leave hypothesis”[28]);
b)instead, the Tribunal assessed whether the applicant had a well-founded fear on the assumption that the “away-without-official-leave hypothesis” was incorrect; that is, on the assumption that the applicant was not a member of SA1 at the time he departed the ACN, and was not, at that time, bound to SA1 by a four-year contract which had two or so years to run.
[28] T9.35, that is the description counsel for the applicant gave to the applicant’s claim that he was a bound to a four-year contract with SA1 at the time he departed the ACN.
In his oral submissions, counsel for the Minister submitted that the Asserted Claim was not raised by the material that was before the Tribunal. In any event, the Minister submitted the Tribunal made findings “of sufficient generality to negative the possibility that the Applicant would nevertheless be imputed with an anti-regime political opinion because of his having left” the ACN.[29] The Minister identifies three findings he submits demonstrate that generality: the applicant did not consider he was at any risk when he left the ACN in [X] and the applicant faced no such risk;[30] the applicant did not have a well-founded fear of being persecuted in the ACN because of his political opinion, and that if he returns to the ACN he will do so as a person who has a record of long-standing loyalty to the regime;[31] and there was no reason why the applicant might be suspected of having sought asylum in Australia, and that his loyalty to the regime has been imputed.[32]
[29] Minister’s written submissions, [5].
[30] Which the Minister says is contained at CB186, [50]
[31] CB191, [78]
[32] CB191-192, [83]
From these competing submissions, four issues arise:
a)Was the Asserted Claim before the Tribunal?
b)If so, was the Tribunal bound to assess whether the applicant had a well-founded fear of persecution on the assumption that the “away-without-official-leave hypothesis” may have been true?
c)Did the Tribunal in any event assess whether the applicant had a well-founded fear on the assumption that the “away-without-official-leave hypothesis” was incorrect?
d)Did the Tribunal otherwise consider the Asserted Claim?

Was the Asserted Claim before the Tribunal?

I accept the applicant’s submission that the Asserted Claim was sufficiently raised before the Tribunal. That it was before the Tribunal is apparent from what the Tribunal understood the applicant claimed; and what the Tribunal understood is recorded in the passages set out in paragraph 7(b) of these reasons.

Was the Tribunal bound to consider the applicant’s claim on the assumption that the “away-without-official-leave hypothesis” may be true?

In submitting that the Tribunal was required to assess the applicant’s claim on the assumption that the “away-without-official-leave hypothesis” may be true, the applicant relied on the Full Federal Court’s decision in Rajalingam. I therefore need to identify the principles discussed in that case before I consider this part of the applicant’s claim.
Rajalingam
The principal question before the Full Federal Court in Rajalingam was whether the Tribunal, when assessing whether three applicants for a protection visa had a well-founded fear of persecution, was required to take into account the probability that allegations of past facts made in support of those claims were true, even though the Tribunal did not accept the allegations to be true.
That the Tribunal may ever come under an obligation to have regard to alleged facts it does not accept when assessing whether an applicant for a protection visa has a well-founded fear of persecution might seem “surprising at first glance”.[33] A number of decisions, however, and in particular, the High Court decisions in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[34] and Minister for Immigration and Ethnic Affairs v Guo & Anor,[35] held that there are circumstances in which the Tribunal may come under such an obligation. And it will be necessary to briefly state the principles that have emerged from those cases before I identify the principles the Full Court expounded in Rajalingam.
[33] Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 239 ([60]) (Sackville J)
[34] (1996) 185 CLR 259
[35] (1997) 191 CLR 559
The starting point is the proposition that an applicant for a protection visa must satisfy the criterion specified in s.36(2)(a) of the Act, namely, that the applicant is “a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”. That requires the Minister to be satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention referred to in s.36(2)(a) (Convention). That is, the Minister must be satisfied the applicant is a person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or, who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Second, whether a person falls within this definition depends on a decision-maker (in this case, the Tribunal) assessing what will occur in the future. That requires the Tribunal to assess whether the applicant faces a real chance of being persecuted,[36] recognising, however, that the expression “real chance of being persecuted” should be seen as a clarification of, not a synonym for, the expressions “well-founded fear of being persecuted”.[37]
[36] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
[37] Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, page 572
Third, when assessing the probabilities of something occurring in the future, the Tribunal ordinarily must make findings about whether all or part of the applicant’s account of past events should be accepted.[38] That is so because in many areas of life proof of past events, although not a certain guide to the future, “often provides a reliable basis for determining the probability – high or low – of their recurrence”.[39] Further:[40]
In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
[38] Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 231 ([34]) (Sackville J)
[39] Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, page 574
[40] Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, page 575
Fourth, the approach to fact-finding followed by courts when assessing past events – as explained by the High Court in Malec v JC Hutton Pty Ltd[41] - does not apply to the Tribunal.[42]
Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term "balance of probabilities" played a major part in those submissions, presumably as a result of the Full Court's decision. As with the term "evidence" as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance.
[41] (1990) 169 CLR 638
[42] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at page 282
From these principles, it follows that when assessing the future chance or likelihood of persecution, the Tribunal may, and it usually must, make findings about events an applicant claims occurred in the past, and, to the extent the Tribunal finds past events have occurred, it may, and usually must take into account those events when assessing what will occur in the future. Unlike the approach of courts, however, the Tribunal may also be required to take into account alleged past events which the Tribunal is not satisfied have occurred.[43]
[T]he very uncertainty of what has happened in other cases is itself material to the assessment of the chance of persecution in the instant case. As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future: the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event.
[43] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at page 281
The Tribunal, however, is not required to take into account the probability of the truth of every alleged fact it does not accept to be true. In Guo the High Court held, first, that the Tribunal was entitled to weigh the material before it and make findings before it considered whether fear of the applicant in that case was well-founded and, second, having made strong findings against the applicant’s claims, the Tribunal was “not bound to consider the possibility that its findings were inaccurate”.[44]
[44] Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, pages 575-576
In Rajalingam Sackville J (with whose reasons North J agreed) reviewed Wu Shan Liang and Guo and other cases and then identified the following principles:
a)There are circumstances in which the Tribunal “must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur”. The Tribunal “must not foreclose reasonable speculation about the chances of the hypothetical future event occurring”.[45]
b)The Tribunal “performs its fact-finding task as an administrative decision-maker”, which means it cannot simply apply the civil standard of proof to all fact-finding; that is particularly so because the Tribunal “must frequently make its assessment on the basis of fragmented, incomplete and confused information” and “that it has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision-maker/investigator”.[46]
c)Given (b), “it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence”. In these circumstances:[47]
it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. Similarly, if the non-occurrence of an event is important in the applicant’s case . . . the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
[45] (1999) 93 FCR 220 at 239, [60]
[46] (1999) 93 FCR 220 at 239, [61]
[47] (1999) 93 FCR 220 at 239, [62] (emphasis added)
These principles indicate that it is not necessary for the Tribunal to incorporate in its assessment of future risk claims of past events about which the Tribunal has made strong findings. But these are not the only kinds of claimed past events the probability of the truth of which the Tribunal need not take into account. There may be claimed past events the truth of which it may have been open to the Tribunal to consider to be irrelevant, either on their own or because the Tribunal has made strong findings of facts on other parts of the claim which render the truth of certain claimed past events to be irrelevant. That the probability of the truth of such claimed past events may not be required to be incorporated in the Tribunal’s assessment of the applicant’s claim is suggested by the emphasised portion of the passage from the reasons of judgment of Sackville J I have set out in the preceding paragraph. As I will attempt to show in the following paragraphs, the “away-without-official-leave hypothesis” was a claimed past event the truth or falsity of which the Tribunal did not consider to be relevant to its assessment of the applicant’s claim.
Was the “away-without-official-leave hypothesis” a claimed past event that the probability of the truth of which the Tribunal was bound to consider?
As submitted by the applicant, the Tribunal did not make a finding about the truth or falsity of the “away-without-official-leave hypothesis”. The applicant does not suggest, however, that the Tribunal did not do so because it did not consider that claim. The Tribunal was aware of and considered the applicant’s claim that he was bound to a four-year contract at the time he left the ACN in [X]. The Tribunal decided, however, that whether or not that claim was true did not bear on the resolution of the question of whether it was satisfied the applicant had a well-founded fear of persecution. And that is because the Tribunal was satisfied there was no restriction on the applicant’s departure from the ACN at the time he left the ACN, whether or not at the time the applicant left the ACN he was bound to SA1 by a four-year contract. In other words, being satisfied there was no restriction on the applicant’s departure from the ACN, the Tribunal did not consider it necessary, when assessing whether the applicant had a well-founded fear of persecution, to determine whether the applicant’s claim that he was bound to a four-year contract was true or false.
That this is how the Tribunal proceeded is apparent from its reasons for decision. The Tribunal stated that, “as will become apparent”, it did “not necessarily accept that [the applicant] remained in that employment as he claimed, and [it did] not accept that it had the consequences [the applicant] claimed”.[48] This indicates the Tribunal had doubts about the applicant’s claim that he was bound by a four-year contract. It also indicates, however, that the Tribunal was of the view that the claim, if correct, did not have the consequences the applicant claimed it had. And in paragraph 50 of its reasons the Tribunal set out why it did not accept these matters. These are that it was “satisfied that there was no restriction on the applicant’s departure from [the ACN] in [X]” and that the Tribunal was “not satisfied that when [the applicant] left [the ACN] in [X] he considered there was any risk to him doing so, and” the Tribunal was “not satisfied that there was any such risk”.[49]
[48] CB185, [43] (emphasis in original)
[49] CB187, [50]
That the Tribunal did not consider it necessary when assessing whether the applicant had a well-founded fear of persecution to determine whether the applicant’s claim he was bound to a four year contract was true is particularly apparent in the following passage from paragraph 50 of its reasons:[50]
I am unable to establish with confidence that [the applicant’s] employment relationship was with [SA1] by [X]. He has provided a letter from [SA1] indicating that he was employed from . . . in the . . . section on a 4 year contract. If this document is genuine it may be that he was halfway through a contract when he left [the ACN]. Alternatively the contract may have been terminated prematurely, or he may in fact have been allowed to leave [the ACN] as an [SA1] employee with the knowledge and permission of his employer. I am unable to make a finding on this point, but am not satisfied that when he left [the ACN] in [X] he considered there was any risk to him in doing so, and am not satisfied that there was any such risk.
[50] CB186-187
In this passage, the Tribunal in effect found that, whether or not the applicant was bound to a four-year contract when he left the ACN was irrelevant to the Tribunal’s conclusion that the applicant did not fear risk of harm, and had no objective grounds for believing he was at risk of harm. Whatever the true position was in that regard, the Tribunal found the applicant did not consider, and there were no objective grounds for the applicant considering, he was at risk of persecution when he left the ACN.
Given the Tribunal found that the truth or otherwise of the “away-without-official-leave hypothesis” had no bearing on the Tribunal’s concluding that the applicant did not fear, and there were no objective grounds for his fearing, a risk of harm, it was open to the Tribunal to assess the applicant’s risk of persecution if he were to return to the ACN on the basis of that finding without having to incorporate in its assessment the probability of the truth of the “away-without-official-leave hypothesis”. There is nothing in the principles discussed in Rajalingam that prevented the Tribunal from doing that.

Did the Tribunal consider the Asserted Claim on the assumption that the “away-without-official-leave hypothesis” was untrue?

It will be apparent from what I have said in paragraphs 28-30 of these reasons that I cannot accept the applicant’s submission that the Tribunal assessed whether the applicant had a well-founded fear of persecution on the assumption that the “away-without-official-leave hypothesis” was incorrect. As the passages I have set out from the Tribunal’s reasons show, the Tribunal proceeded on the basis that it was not necessary for it to make a finding about whether the “away-without-official-leave hypothesis” was true, and assessed the applicant’s claim on the basis of other findings it made, and in particular, its finding that the applicant did not consider, and there were no objective grounds for him to consider, there was any risk to him leaving the ACN in [X].[51]
[51] CB187, [50]

Did the Tribunal otherwise consider the Asserted Claim?

In my opinion, the Tribunal did consider the Asserted Claim. As set out in paragraph 7(b) of these reasons, the Tribunal identified the claim, and, as set out in the balance of paragraph 7 and in paragraph 8 of these reasons, the Tribunal considered that claim.

Conclusion on ground 1

In my opinion, therefore, ground 1 of the application for review is not made out.

Ground 2 – failure to properly consider complementary protection claim

The applicant claims the Tribunal did not address an element of the applicant’s claim for complementary protection under s.36(2)(aa) of the Act. The claim is said to have been made at the hearing before the Tribunal, and is recorded in paragraph 88 of the Tribunal’s reasons.[52]
Asked if he feared significant harm under the complementary protection criteria for any reason other than those already provided, the applicant said only that he believed he would be charged with being a spy on return to [the ACN]. . . .
[52] CB192, [88]
The applicant submits the Tribunal did not consider that claim (Spy Claim). That is so because the Tribunal dealt with the applicant’s claims, including the claim based on complementary protection, on the basis that the “applicant’s fear of harm [in the ACN] relates solely to his concern that a political opinion might be imputed to him”.[53] The asserted error is that the Tribunal considered the Spy Claim only by reference to the Convention nexus of imputed political opinions whereas the Spy Claim was based on matters that extended beyond imputed political opinions.
[53] CB192, [89]
Counsel for the Minister, on the other hand, submits it would be unfair to read the Tribunal as having considered the applicant’s claim on the erroneous view that it was only a Convention-based fear of harm that was relevant to the determination of the applicant’s claim for complementary protection. A fair reading of the Tribunal’s decision, counsel submitted, shows that the Tribunal interpreted the Spy Claim as one that was based on the same asserted facts on which the applicant relied for his claim to be a “refugee”. Counsel further submitted the Tribunal was entitled to reject the Spy Claim because it was based on the same facts as those on which the applicant relied for claiming fear of persecution based on imputed political opinion.[54]
[54] The Minister relies on SZSHK v Minister for Immigration & Anor [2013] FCAFC 125 at [32] (Robertson, Griffiths and Perry JJ) (“We can understand that a claim under the Refugees Convention may fail because, on the facts, harm was suffered but not for a Refugees Convention reason. However, where there is a finding that no harm as claimed was suffered, that finding is relevant to a complementary protection claim, that is, to whether the Minister has substantial grounds for believing there is a real risk of significant harm for the purposes of s 36(2)(aa) of the Act.”), and SZSGA v Minister for Immigration and Border Protection [2013] FCA 774 (Robertson J) (“There is in my opinion no jurisdictional error in the Tribunal referring to its previous findings of fact in this case as the claim under the complementary protection provisions as articulated could not survive those findings of fact that there were no relevant loans and therefore no threats of the nature claimed by the appellant and no factual basis for the appellant’s other claims.”)
The issues that arise, therefore, are as follows:
a)Did the Tribunal consider the Spy Claim to be based only on a claimed fear of harm based on imputed political opinion?
b)If so, was the Tribunal correct to consider the Spy Claim to be based only on such imputed political opinion?
c)If so, did the Tribunal’s considering the Spy Claim to be based only on imputed political opinion indicate that the Tribunal considered the applicant’s claim for complementary protection on the erroneous view that it was only a Convention-based fear of harm that was relevant to the determination of that claim?

Tribunal’s view of the Spy Claim

In my opinion, the Tribunal considered the Spy Claim to be based, and only to be based, on a claimed fear of harm based on imputed political opinion. That is so because the only other occasion in which the Tribunal records the applicant referring to his being considered a spy indicates that the applicant believed that the harm he would suffer from being a spy would flow from his political views. That occurred in the course of the Tribunal’s consideration of the applicant’s claim based on his being a failed asylum seeker.
In that regard, the Tribunal recorded that in answer to the Tribunal’s asking him what harm the applicant anticipated he would suffer on the basis he would be a failed asylum seeker, the applicant “confirmed that he meant he would be harmed for his political views”.[55] The Tribunal then recorded the following exchange with the applicant:[56]
As he had been visiting his two brothers in Australia on a visitor visa, I asked [the applicant] if there was any reason why, if he returned to [the ACN], the authorities might perceive him to be a “failed asylum seeker” at all. He said he knew how they thought. They would think it was all pre-planned that he came here and that he came to give information to the Australian authorities. He was probably regarded as a spy in his workplace.
[55] CB191, [80]
[56] CB191, [81]
From this passage, the Tribunal could only have reasonably understood the applicant to have claimed that one of the harms he feared on his return to the ACN was his being considered to be a spy. But it would also have been apparent to the Tribunal that the only reason the applicant claimed he feared he would be considered a spy was because of the imputing to him of political opinions hostile to the regime of the ACN. It is the claimed imputation to him of political views hostile to the regime which the applicant feared would result in his being considered a spy.

Was the Spy Claim based only on imputed political opinion?

In my opinion, the Tribunal was correct to view the Spy Claim as being based, and only on being based, on the applicant’s concerns that he would be imputed with a political opinion hostile to the regime of the ACN. First, as I note above, the only other occasion in which the Tribunal referred to the applicant mentioning his being treated as a spy indicated that he believed that would occur because of political views that would be imputed to him. Second, the Tribunal does not record the applicant’s asserting that he feared being charged or regarded as a spy for any other reason.

Did the Tribunal consider the complementary protection claim on erroneous principle?

The Tribunal’s statement that the “applicant’s fear of harm [in the ACN] relates solely to his concern that a political opinion might be imputed to him”[57] does not reflect an erroneous belief on the part of the Tribunal that the applicant’s claim for complementary protection was to be assessed only by reference to Convention-based fears of harm. It reflects the Tribunal’s correct view that all of the applicant’s claims for protection, whether based on the Convention or on complementary protection, were based on the applicant’s fear of being imputed with political opinions hostile to the regime of the ACN.
[57] CB192, [89]

Conclusion

For these reasons, the applicant’s second ground of the application fails.

Ground 3 – failure to consider claim based on modification of behaviour to avoid persecution

The applicant submits the Tribunal was required to consider, but failed to consider, a premise that underpinned the applicant’s claim of fear of persecution based on imputed political opinions. The premise is that the applicant, when in the ACN, kept his political opinions to himself and, if he were to return to the ACN, he would continue to keep his political views to himself. The applicant submits that these facts are analogous to those considered by the High Court in Appellant S395/2002 & Anor v Minister for Immigration & Multicultural Affairs,[58] and that the Tribunal in the case before me made the same error as the High Court held the Tribunal made in S395. The Minister, on the other hand, submits that such a claim was not raised, or at least not sufficiently raised before the Tribunal.
[58] (2003) 216 CLR 473
The resolution of this part of the applicant’s case requires me to consider the reasons for judgment in S395.

S395

In S395, two appellants claimed fear of persecution in Bangladesh because of their homosexuality. The Tribunal found that, while living in Bangladesh, the appellants suffered no serious harm because they were homosexuals. The Tribunal said the applicants had “clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now” and, accordingly held they did not have a well-founded fear they would be persecuted if they returned to Bangladesh.[59]
[59] (2003) 216 CLR 473 at page 483 ([21])
An application for review to a single judge of the Federal Court was dismissed as was an appeal from that decision to the Full Federal Court. The Full Federal Court dismissed the appeal because the Court held that the appellants did not put before the Tribunal the claim that their modifying their behaviour to avoid persecution itself constituted persecution within the meaning of the Convention.[60]
[60] (2003) 216 CLR 473 at page 484 ([23]). The Full Federal Court decision is at [2002] FCA 129(Black CJ, Tamberlin and Allsop JJ) and was reported as Kabir v Minister for Immigration & Multicultural Affairs.
One issue that was before the High Court was whether the Full Federal Court was correct to hold that the claim based on modifying behaviour was not one that was put to the Tribunal, and for that reason could not claim the Tribunal made any jurisdictional error by not considering such claim. McHugh and Kirby JJ agreed with the Full Federal Court that the appellants did not put to the Tribunal a case based on modifying their behaviour. Their Honours held, however, that the appellants were not prevented from claiming that the Tribunal made a jurisdictional error because the Tribunal did not consider that claim. And that was so because the Tribunal went beyond the claims the appellants actually put to the Tribunal:[61]
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.
[61] (2003) 216 CLR 473 at pages 488-89 ([39])
Gummow and Hayne JJ, who together with McHugh and Kirby JJ, held the Tribunal made a jurisdictional error by not considering a claim based on the appellants modifying their behaviour, did not address whether the Full Federal Court was correct to conclude that the appellants did not put to the Tribunal that claim, and were therefore prevented in an application for judicial review from relying on the Tribunal’s not considering that claim. Gummow and Hayne JJ only noted that the Full Federal Court “should in each case have allowed the appellant’s case with costs”.[62]
[62] (2003) 216 CLR 473 at page 503 ([91])
Gleeson CJ (who would not have allowed the appeal) held that the claim based on the modification of behaviour was not before the Tribunal:[63]
It was never part of the claim advanced by the appellants to the Tribunal that the persecution they had experienced in the past, and apprehended in future, took the form of repression of behaviour about which they desired to be more open, and that they escaped harm only by concealing their relationship. If such a claim had been made, it would have raised factual and legal questions beyond the scope of the case put to the Tribunal.
[63] (2003) 216 CLR 473 at pages 481-482 [12]
The same conclusion was reached by Callinan and Heydon JJ (who would not have allowed the appeal):[64]
The appellants had every opportunity to state to the Tribunal the grounds on which they claimed refugee status and the background facts - both the facts relating to their personal lives and the facts relating to the political and social environment of Bangladesh. They gave quite detailed accounts of the facts they saw as relevant to their claims. Those accounts may have sufficed to make out an entitlement to refugee status, if the appellants had been believed. In large measure they were not believed. If they had wished to, the appellants could have advanced a claim that their decision to live as they had been living and would live on their return to Bangladesh was influenced by a fear of harm if they did not; or that persons for whom the government of Bangladesh is responsible induce or inculcate a fear of harm in those living openly as homosexuals; or that they are at risk of suffering serious harm constituting persecution if they wished to display, or inadvertently disclosed, their sexuality or relationship to other people. They did not advance any claims of this kind beyond those connected with the factual accounts advanced by them to the Tribunal and rejected in large measure by the Tribunal. The Tribunal accordingly did not err in not dealing with them.

Was the Tribunal obliged to consider the applicant’s claim on the basis of the applicant’s claimed modification of behaviour?

[64] (2003) 216 CLR 473 at pages 513-514 ([113])

From the passages from the reasons in S395, it will be seen that whether or not the Tribunal in this case, when assessing the applicant’s fear of persecution, was obliged to consider the applicant’s keeping to himself his political opinions depends on:
a)whether it was reasonably apparent from the material before the Tribunal that it was part of the applicant’s claim (Asserted Repression of Behaviour Claim) that the persecution he had experienced in the past and apprehended in the future took the form of repression of behaviour about which he desired to be more open; or
b)if (a) is answered in the negative, whether the Tribunal dealt with the application for review in a manner that went beyond the applicant’s claim that was before the Tribunal and so obliged the Tribunal to consider whether the applicant feared persecution in the form of the repression of behaviour about which he desired to be open.
The material the applicant submits was before the Tribunal that reasonably disclosed the Asserted Repression of Behaviour Claim is the following:
a)The statement “I was always obliged to say things which I did not believe in” made in the applicant’s case statement at the end of a paragraph that discusses security agencies activities to stifle dissent within SA1.[65]
b)The statement “My friends and I were perplexed by the scene and remained silent in fear of encountering a similar fate” made in the applicant’s case statement at the end of two paragraphs which deal with an incident that occurred at a meeting of members of SA1.[66]
c)The statement “I became a more silent person and never shared my political or Ideological views with anyone” made in the applicant’s case statement in a paragraph dealing with his questioning by security services.[67]
d)The Tribunal recording in its reasons the applicant having stated to the Department of Immigration and Citizenship the matters I have identified in (a), (b), and (c).
[65] CB58
[66] CB59
[67] CB60
Whether or not the Asserted Repression of Behaviour Claim was before the Tribunal cannot be determined by looking at individual passages from one document. What claim can reasonably be supposed to have been before the Tribunal must be considered by reference to all the material the applicant presented to the Tribunal, evidence the applicant gave to the Tribunal, and any information the Tribunal consulted in undertaking the review. As was said by Allsop J (as his Honour then was) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs:[68]
[T]he statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
[68] [2004] FCA 1695 at [15]
When the applicant’s claim is considered in its entirety, the overwhelming impression it gives is that the applicant’s claimed fear is that of being “persecuted for having political opinion against . . . the current regime [of the ACN] and my Ideologies and political views that have been revealed to the authorities of my country”.[69] The persecution he feared was “going to prison and losing my life and my family”[70] The applicant described his fear in dramatic terms, describing what he feared as a “horrifying destiny”.[71] The applicant did not claim he left the ACN because he was unable to express his political opinions or because he feared persecution in the form of repression of behaviour about which he desired to be more open. He claimed he left the ACN “to come to see my family in Australia”, and that was his “prime reason to come here to visit them”.[72] Nor did the applicant claim he feared that on his return he would be repressed from engaging in conduct about which he otherwise desired to be open.
[69] CB62 (emphasis added)
[70] CB18.1
[71] CB63
[72] CB17.5
Further, the Tribunal did not go beyond determining the claim the applicant put to the Tribunal. The applicant’s claim was rejected essentially because the Tribunal did not accept the central asserted fact on which the applicant relied as giving rise to a fear of persecution based on the imputing to him of political opinions hostile to the regime of the ACN. The central asserted fact was that, shortly after the applicant left the ACN for the purpose of visiting his family in Australia, SA1 searched his house and found material which disclosed his holding opinions which would lead to his being persecuted.
For these reasons, ground 3 of the applicant’s claims fails.

Conclusions and disposition

My conclusions may be briefly stated as follows:
a)The Tribunal was not obliged to assess the applicant’s claims on the assumption that the applicant’s assertion that he had left the ACN bound to SA1 under a four-year contract may be true; and it did not assess the applicant’s claim on the assumption that the applicant’s assertion was not true.
b)The Tribunal did not assess the applicant’s complementary protection claim on the erroneous basis that the only harm that was relevant for it to consider under that claim was the harm that had to be considered on the applicant’s claim for protection based on his being a refugee within the meaning of the Convention. The Tribunal correctly understood the applicant’s complementary protection claim to be based, and only to be based, on a fear of persecution based on the applicant’s being imputed with political opinions hostile to the regime of the ACN.
c)There was not before the Tribunal a claim based on fear of persecution in the form of repression of behaviour about which the applicant desired to be open; and the Tribunal did not conduct its review of the applicant’s claim in a way that required it to consider whether the applicant had a well-founded fear of persecution in the form of repression of behaviour about which the applicant desired to be open.
I accordingly propose to dismiss the application, and order that the applicant pay the Minister’s costs.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate:

Date: 11 April 2014