SZVDH v Minister for Immigration and Border Protection
[2017] FCA 78
•10 February 2017
FEDERAL COURT OF AUSTRALIA
SZVDH v Minister for Immigration and Border Protection [2017] FCA 78
Appeal from: SZVDH v Minister for Immigration & Anor [2016] FCCA 1909 File number: NSD 1380 of 2016 Judge: BURLEY J Date of judgment: 10 February 2017 Catchwords: MIGRATION – application for a Protection (Class XA) visa – whether Refugee Review Tribunal addressed all appellant’s claims, adopted an active intellectual process, applied the correct legal tests or made unreasonable findings – real chance test – no onus of proof in Tribunal proceedings
ADMINISTRATIVE LAW – role of the Court to decide whether decision was invalid by reason of jurisdictional error – role of the Court not to consider factual merits of Tribunal’s decision
Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Migration Act 1958 (Cth) s 36
Cases cited: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
SZVDH v Minister for Immigration & Anor [2016] FCCA 1909
SZVVR v Minister for Immigration and Border Protection [2016] FCA 1364
Tickner v Chapman (1995) 57 FCR 451
Date of hearing: 14 November and 12 December 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 57 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr M Glavac of Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS
NSD 1380 of 2016 BETWEEN: SZVDH
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
10 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
1 INTRODUCTION
[1]
2 BACKGROUND
[5]
2.1 The Visa application and the decision of the Delegate
[5]
2.2 The Tribunal’s decision
[7]
2.3 The decision of the FCCA
[14]
3 THE PRESENT APPEAL
[26]
3.1 Ground 1: Failure to consider the future
[30]
3.2 Ground 2: Failure to deal with the claim
[32]
3.3 Ground 3: Failure to adopt any active intellectual process
[44]
3.4 Ground 4: Error in rejecting a claim of fear of persecution as “speculation”
[47]
3.5 Ground 5: Onus of proof
[52]
3.6 Ground 6: Unreasonable finding of applicant’s credibility
[56]
4 DISPOSITION
[58]
BURLEY J:
1. INTRODUCTION
This is an appeal from the judgment and orders made by the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal). The Tribunal had affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the appellant a Protection (Class XA) Visa (Visa) under section 36 of the Migration Act 1958 (Cth) (the Act).
In the present proceeding, the appellant was unrepresented. He was assisted by the services of an English/Nepalese translator. He relied on the following grounds of appeal:
1.His Honour made error by confining his consideration to the Applicant's claims as to the past and not considering that the Second Respondent was bound to consider whether there was a real chance that the Appellant would suffer persecution from Maoists in Nepal.
2.His Honour made error by failing to deal with an acknowledged claim that the Applicant feared persecution from JTMM because he would be returning to Nepal from a foreign country.
3.His Honour made error by failing to find that in the Application of the real chance test, the Second Respondent made jurisdictional error by failing to adopt any active intellectual process or making findings based upon an intelligible justification in relation to the claim that the Applicant feared persecution from the Maoists because he would be returning to Nepal from a foreign country.
4.His Honour made error by not finding that the Second Respondent made jurisdictional error by dismissing a claim of a fear of persecution as “speculation” which is in fact a requirement of the real chance test.
5.His Honour made error by failing to find that the Second Respondent adopted an onus of proof inconsistent with the real chance test.
6.His Honour made error by not considering that the Second Respondent made unreasonable findings in determining that the Applicant lacked credibility in not seeking a protection visa while he held a student visa.
These grounds are substantially the same as the grounds relied upon before the FCCA.
The Minister filed an outline of written submissions on 3 November 2016. At the commencement of the hearing, the appellant confirmed that the submissions had been translated for him.
2. BACKGROUND
2.1 The Visa application and the decision of the Delegate
The appellant is a citizen of Nepal. He arrived in Australia on a student visa in November 2008. That visa ceased in May 2011 and he was then granted a further student visa in June 2011 which expired on 9 November 2011. The appellant was then provided with a succession of bridging visas and on 17 July 2013 he applied to the Department of Immigration for the Visa.
On 24 December 2013, the Delegate refused to grant the Visa. In essence, the Delegate found that the appellant has an entitlement to statutory protection in a third country, India, and that accordingly he is not owed protection obligations by Australia in accordance with subsections 36(3), (4), (5) and (5A) of the Act.
2.2 The Tribunal’s decision
The appellant applied for a review of the Delegate’s decision. Submissions were filed on behalf of the appellant prior to the hearing by a firm of lawyers and migration agents. A hearing was conducted on 30 July 2014 at which the appellant was represented by his migration agent. The appellant gave evidence at the hearing and submissions were filed after the conclusion of the hearing on 22 August 2014.
On 25 August 2014, the Tribunal affirmed the Delegate’s decision not to grant the Visa. The Tribunal concluded that it was not satisfied that the appellant has a well-founded fear of persecution within the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Convention).
The appellant’s claims were set out in his Visa application, his handwritten statement, submissions provided by his advisers, in his statements made during his protection Visa interview, and his evidence given during the course of the hearing before the Tribunal. The handwritten document noted above, which was apparently in Nepalese, was attached to the appellant’s protection Visa application without a translation. At the hearing before the Tribunal, the appellant submitted a statement in English which he identified as a translation of this document. This document included claims made by him and attracted some attention in the present appeal.
In summary, the appellant claimed that he had been obliged to leave his home village because members of the Nepalese Maoist Communist Party had begun to pressure him into joining in with their activities. He was resistant, and they threatened him and his parents. As a result, his parents sent him to another town for his higher education. However, when there, he began to receive threats from the Maoists again and also from another terrorism organisation referred to as Terai Mukti Morcha or Janatantrik Terai Mukti Morcha (JTMM) which, the country information revealed, is a terrorist organisation which seeks the independence of the Terai region from Nepal. As a result, his parents consented to the appellant travelling to Australia to continue his studies.
The factual basis for the appellant’s claims before the Tribunal was recorded by the Tribunal to be as follows:
(1)The appellant’s parents had previously supported the Maoists and for this reason he was more susceptible to the pressures that they placed on him to join them.
(2)His father is a civil servant and owns a large amount of agricultural land, deriving income from it. His parents continue to live in his home village.
(3)He endured threats from the Maoists in his home village and when he resisted their invitations to join them, they forcibly took him to attend various programs. To avoid the threat of physical harm that would result if he continued to resist, he moved to a larger town, remote from his home village, to continue his studies.
(4)At the new town, the appellant began to receive threats from JTMM, who accused him of being from a social and cultural background which was different to theirs. They threatened him with physical harm. He was concerned that if they saw him they would seize him and make him carry out criminal activities. On one occasion, he heard members of the JTMM discussing him and his origins. He feared that they would attack him and so he ran away.
(5)The JTMM had tried to catch him two or three times, but he was able to run away from them. Had they caught him they would have killed him or forced him to join in their activities. When asked about the circumstances in which these incidents happened, he said that he had been living in a friend’s apartment for ten months while he studied. He was on his bicycle when they approached him, but he was able to pedal away. They had not done anything else to him.
(6)The Tribunal noted that the country information indicates that JTMM is a Madhesi organisation which supports the rights of the Madhesi people in the Terai. The Tribunal suggested that the JTMM would not be interested in inviting him to join them, to which he responded that they could not use Madhesi people to do “bad things for them and instead used non-Madhesis for this purpose”.
(7)The Tribunal suggested to the appellant that it was difficult to believe that he would be at risk from harm from the Maoists or the JTMM given that he “never suffered harm from these bodies in the past and had been away from Nepal for six years”. He responded that they had already targeted him and if they saw him again they would harm him. This was why his parents had advised him that he would be better to remain in Australia.
(8)The appellant recorded his concern that the Maoists would ask him for a large amount of money if he was returned from Australia. He was concerned that if he could not pay them “anything could happen”.
(9)The Tribunal expressed scepticism about the assertion that the appellant had left Nepal in fear of his life, because he had received his student visa in October 2008, but had not left Nepal for another three weeks. His response was that at the time of receiving his visa he had been in Kathmandu and that this city was removed from the town where he had previously been studying and from where the threats were made. He also said this was the “minimum time in which he could leave”.
(10)The Tribunal also recorded scepticism arising from the delay of nearly five years that took place between the appellant’s arrival in Australia and his submission of his application for the Visa. He responded by saying that he did not need to claim protection until his student visa had run out.
(11)The appellant expressed concern that if he returns to Nepal, the Maoists and the JTTM “can do anything to him”. They will pressure him and ask for donations because they will assume he must be wealthy as he comes from a foreign country (this claim is addressed in further detail below).
The Tribunal considered the matters raised and ultimately concluded that the appellant did not have a well-founded fear of persecution for a Convention reason should he return to Nepal. The conclusion is expressed in the following paragraphs of the Tribunal’s decision (emphasis added):
29.Taking these considerations together I am unable to be satisfied as to the credibility of the Applicant’s claims regarding his experiences in Nepal. I am not satisfied that he or his family did, in fact, come under pressure for him to join the Maoists or that it was for this reason that he moved to [town] and studied there. I am not satisfied that he ever came to the adverse attention of the JTMM-J, either in [town] or elsewhere in Nepal. Nor, even if it is the case that armed forces active in the Terai region are becoming more violent, as contended by the advisor, am I satisfied there is any reason to believe the Applicant would suffer harm from these sources if he were to return to Nepal. While I note his claim that Maoists would demand money from him if he returned to his village, as someone who had been living in a foreign country, I consider this is no more than simple speculation on his part and I am not satisfied there is a real chance that he would suffer harm in this way. I also note his suggestion at the hearing that he had been involved in some form of low-level political activity when he was at school (or college) in [town], in connection with a group or party which he termed the ‘UML’. Whatever this activity may have been, however, he does not suggest that it would expose him to any risk of harm if he were to return to Nepal. Nor does he suggest that the alleged support his parents gave to the Maoists would translate into a risk of harm for him. He does not claim to fear harm in Nepal for any other reason and no other reason is apparent on the face of the information before the Tribunal.
30.I am not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason should he return to Nepal, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.
Further, the Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Nepal, there is a real risk that he would suffer significant harm within the complementary protection criteria set out in subsection 36(2)(aa) of the Act.
2.3 The decision of the FCCA
The appellant filed an amended application for review of the Tribunal decision by the FCCA on 20 May 2016. He was represented by Counsel at the hearing.
As noted above, the amended application was substantially the same as the present grounds of appeal, which are set out in [2] above. Set out below is a summary of the primary judge’s reasons as recorded in SZVDH v Minister for Immigration & Anor [2016] FCCA 1909.
The primary judge characterised ground 1 as a criticism that the Tribunal had assessed the relevant protection criteria solely by reference to what had occurred in the past, but had failed to consider prospectively whether there was a real chance that the appellant would suffer persecution from Maoists in Nepal in the future. The primary judge rejected this argument on the basis that the criticism did not reflect a fair reading of the Tribunal’s reasoning, which had addressed the claims made and noted at [28]:
Given that he suffered no harm while he was in Nepal, and in the absence of any indication that the situation has changed for the worse since he left, it is difficult to account for his alleged fear of harm from these same sources should he return to Nepal six years after he left.
The primary judge noted that this language made it clear that the Tribunal was considering future possibilities, a proposition which was supported by the language of [29] of the Tribunal’s reasons, the emphasised portions of which (quoted in [12] above) also signify that the Tribunal did in fact address itself to the question of whether the appellant would in the future suffer harm.
Ground 2 of the present appeal was ground 1A of the appeal below. The primary judge noted that this ground relied upon a failure on the part of the Tribunal to address one of the appellant’s claims, namely his claim to fear harm in the form of extortion from JTMM upon his return from Nepal because it would be assumed that he was wealthy because he had returned from a foreign country. The primary judge found that this ground turned upon whether or not it could fairly be said that the appellant had advanced such a claim of fear. He concluded that no such claim had been advanced, and dismissed this ground.
Ground 3 (expressed as ground 1B before the primary judge) was to the effect that the Tribunal did not properly consider the appellant’s claim of fear of harm from the Maoists, but rather simply dismissed it as speculation. The primary judge rejected this claim because, in his view, the Tribunal’s reasons did not reflect that it had failed to engage in an active intellectual process in respect of the claim. The fact that a simple reason was given for rejecting it did not, in the primary judge’s view, mean that it failed properly to consider the ground.
In relation to ground 4 (which was ground 2 before the primary judge), his Honour noted that the ground focussed on [29] of the Tribunal’s reasons wherein the Tribunal had said “[w]hile I note his claim that Maoists would demand money from him if he returned to his village, as someone who had been living in a foreign country, I consider this is no more than simple speculation on his part…”.
The appellant contended that speculation is in fact part of the “real chance” test. The primary judge concluded that the relevant question for the Tribunal was whether the claim was “well-founded”. In order to meet that description, there must be a real substantial basis for the fear claimed. A fear is not well-founded if it is merely assumed or a mere speculation; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 576. The reasons of the Tribunal did not reflect error in applying this test.
In relation to ground 5 (referred to in the primary judge’s reasoning as ground 3), it was contended that the Tribunal had incorrectly adopted an onus of proof that was inconsistent with the “real chance” test.
The primary judge found that the ultimate question for the Tribunal was whether it was satisfied that the appellant had satisfied the criteria for the grant of a protection visa. That inevitably required the Tribunal to make findings of fact. Those findings are often and properly expressed in terms of satisfaction (or lack of satisfaction). In the present case, the conclusion of the Tribunal at [29] that it was “unable to be satisfied as to the credibility of the Applicant’s claims regarding his experiences in Nepal” did not reflect an improper imposition on the part of the Tribunal of an onus of proof upon the applicant. It was a conclusion of fact reached upon consideration of all of the material before the Tribunal. For that reason, this ground of appeal was rejected.
Ground 6 (which was addressed as ground 4 before the primary judge) was to the effect that the appellant had submitted that it was unreasonable for the Tribunal to doubt his credibility on the basis of his failure to apply for a protection visa for nearly five years after he had arrived in Australia while he was the holder of a student visa. The primary judge rejected this ground on the basis that it found there was nothing irrational or nonsensical about the Tribunal’s reasoning. The primary judge considered that the Tribunal’s conclusion on this ground was one that was open to a decision maker to make in the circumstances of the present case.
Accordingly, the primary judge rejected all of the grounds of appeal and dismissed the appeal.
3. THE PRESENT APPEAL
The appellant made oral submissions mainly in English, but with the assistance of a Nepalese/English interpreter. His oral submissions in effect sought to revisit the merits of his application and raise matters of fact.
In this context, I commence my consideration of this appeal with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the Visa or to grant the appellant a visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal’s decision to refuse to grant the Visa to the appellant. The jurisdiction of the FCCA is limited to considering only whether the Tribunal’s decision to refuse to grant the appellant a visa is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the Tribunal under section 24 of the Federal Court of Australia Act 1976 (Cth).
I now turn to the specific grounds of appeal that are raised.
3.1 Ground 1: Failure to consider the future
Ground 1 contends that the primary judge erred by confining his consideration as to the appellant’s claims to the past, and not considering that the Tribunal was bound to consider whether there was a real chance that the appellant would suffer persecution from Maoists in Nepal.
In my view, this ground is misconceived. In [28] and the emphasised portions of [29] of its reasons (set out in [12] above), the Tribunal plainly adverted to the question of whether the appellant would suffer harm in the future if he were to return to Nepal. Accordingly, the factual premise for this ground of appeal is not made out.
3.2 Ground 2: Failure to deal with the claim
Ground 2 contends that the primary judge erred by failing to deal with an acknowledged claim that the appellant feared persecution from JTMM because he would be returning to Nepal from a foreign country.
The criticism of the Tribunal’s reasons commences with its summary of the relevant claim as follows (at [16]):
If he returns to Nepal, the Maoists and the Janatantrik Terai Mukti Morcha can do anything to him. They will pressure him and ask for donations because they will assume he must be wealthy as he comes from a foreign country.
The Minister at the hearing before the FCCA appeared to accept that the Tribunal did not consider any claim to the effect that the appellant feared persecution from JTMM because he would be assumed to be wealthy as a person returning to Nepal from a foreign country. The argument before the primary judge focussed on the question of whether that claim had in fact been made at all. This turned on the contents of the English translation of the appellant’s own statement, a copy of which had been supplied to the Delegate.
It is necessary to consider the source of the claim, which was the appellant’s statement (Statement). The relevant portions of the translation are set out below (emphasis added):
At that time [when the appellant was in high school], the political system of Nepal was becoming increasingly unstable and therefore it effected my education, as one group under the league of Nepalese Maoist Communist Party started to pressure me into joining their team. They pressured me to go to their meetings and campaigns and told me that I must support them, and if I do not attend their group, they would kill me or physically force to take me to their meetings.
I did not know [sic, show] any interest towards Maoists Party so that they started threatening my father and mother. Due to the fear from Maoists, my parents sent me to a place called [name of town] for higher education. As I was studying regularly in [educational institution], the Maoists activists came to my house and demanded to my parents saying that I must come down to the village.
My parents used to support and help Nepal Communist Party Maoists due to this reasons [sic], they gave a lot of pressure to my parents and it was very difficult for me to continue my study in [town]. In one hand, Maoists asked me to join their party and in the other hand, [JTMM] gave me a different type of pressure and racially discriminated me by declaring that I am from the mountain hill area.
Due to all these kinds of pressure, my parents asked me to move out of the country and continue my study. Due to different type of pressure and challenges, I told my parents that I would like to go and study in Australia and they gave me the approval. …
At the present time, I have no way to go back to Nepal because if I go there, they can do anything to me and they will harm me and they will also ask me for the donation because the Maoists will assume that I must have a lot of money coming from a foreign country. If I go back to Terai, [JTMM] will give me pressure and Maoists will also give me pressure, and so I cannot do anything at the present situation.
The final paragraph of the Statement, and in particular the final sentence, asserts that the appellant fears harm not only from the Maoists upon his return, but also from JTMM. The “pressure” he apprehends from the Maoists would appear to be as a result of extortion because of the assumption that the Maoists will assume that he has a lot of money coming from a foreign country. His claim to fear harm from JTMM (which he also characterises as “pressure”) is of a different type, as he identifies in the third paragraph of the above quote, which is of racial discrimination arising from his origins in the mountain hill area. His fear relates to the geographical region of Terai, where JTMM is active.
The ground of appeal relied upon is that the primary judge (and, I infer, the Tribunal) erred by failing to deal with the claim that he feared persecution from the JTMM because he would be returning to Nepal from a foreign country.
The final part of [16] of the Tribunal’s decision was ambiguous as to whether “they will pressure him for donations” refers to the Maoists, the JTMM, or both.
The primary judge relevantly said, at [38] (emphasis added):
There is no claim in that document that the JTMM would ask for donations because its members would assume that he was wealthy because he had returned from a foreign country. In light of that, the Tribunal’s summary of the applicant’s claims at [16] is properly understood to mean only that the Maoists would ask the applicant for money. That being the case, the claim on which this ground is based was never made and the Tribunal was under no obligation to consider it and the ground must be rejected.
I agree with this construction of the appellant’s claim. The claim made in the Statement is not that JTMM will ask for donations upon his return on the assumption that he is wealthy having lived abroad. It is that the appellant fears persecution from JTMM from a different type of “pressure”. He did not apprehend persecution in the form of extortion for money, but rather discrimination because of his origins in the hill country. His claim was that in the past that had led to harassment of the type summarised at [11(4) – (7)] above, including them targeting him for inclusion in criminal activities or killing him. In that context, it was irrelevant that he would be perceived to return from Australia as a person who was wealthy.
The Tribunal did address that claim and then dismiss it. At [29] of the Tribunal’s reasons it said:
… I am not satisfied that he ever came to the adverse attention of the JTMM–J, either in [town] or elsewhere in Nepal.
The conclusion expressed at [30] that the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason should he return to Nepal, included the finding as quoted above.
Accordingly, this ground should be dismissed.
3.3 Ground 3: Failure to adopt any active intellectual process
Ground 3 contends that the primary judge erred in failing to find that the Tribunal fell into jurisdictional error by failing to adopt any active intellectual process or make findings upon an intelligible justification in relation to the claim that the appellant feared persecution from Maoists because he would be returning from a foreign country.
In the conclusion expressed in [29] of its reasons, the Tribunal said:
Taking these considerations together I am unable to be satisfied as to the credibility of the Applicant’s claims regarding his experiences in Nepal. I am not satisfied that he or his family did, in fact, come under pressure for him to join the Maoists or that it was for this reason that he moved to [town] and studied there… While I note his claim that Maoists would demand money from him if he returned to his village, as someone who had been living in a foreign country, I consider this is no more than simple speculation on this part and I am not satisfied there is a real chance that he would suffer harm in this way. … Nor does he suggest that the alleged support his parents gave to the Maoists would translate into a risk of harm for him. …
Prior to the statement of this conclusion, the Tribunal had set out four separate reasons for doubting the credibility of the appellant’s claims to fear harm in Nepal. Accordingly, the factual substratum upon which the alleged fear of harm from the Maoists was based was, in the Tribunal’s view, wholly undermined. The conclusion expressed that the appellant’s concerns as to extortion from the Maoists was no more than “simple speculation” is not to be understood to arise as an isolated statement, but is to be understood in the context of the Tribunal’s reasons as a whole. That reasoning reflects the employment of a relevantly active intellectual process in respect of the claim; see Tickner v Chapman (1995) 57 FCR 451 at 462; Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [105]; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 at [44]; SZVVR v Minister for Immigration and Border Protection [2016] FCA 1364 at [22] and [25].
3.4 Ground 4: Error in rejecting a claim of fear of persecution as “speculation”
In this ground the appellant contends that the primary judge erred in failing to find that the Tribunal had made a jurisdictional error by dismissing a claim of fear of persecution as “speculation” when speculation is in fact a requirement of the “real chance test”.
I have quoted above at [45] the extract from [29] of the Tribunal’s reasons which give rise to this ground of appeal.
Caution must be expressed about the approach to tests which substitute the statutory requirements of the Act. In considering whether or not the appellant satisfies the requirements of subsection 36(2)(a) of the Act, one must consider whether Australia has protection obligations under the Convention in respect of a person who is outside his country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
A person may have a well-founded fear of persecution even though the possibility of the persecution is low, in the sense of being well below 50%. There must, however, be a “real chance” of persecution. The decision of the High Court (per Mason CJ and McHugh J) in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 427 – 429 provides the foundation for the “real chance” test, although it is to be noted that in Guo at [47] – [48] (per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ), the High Court cautioned against the use of the “real chance” test as a substitute for the Convention term “well-founded fear of persecution”.
The ground of appeal advanced by the appellant misstates the statutory test by suggesting that “speculation” is a requirement of the real chance test. As the learned primary judge observed at [27], the relevant question is whether the claimed fear is “well-founded”. A fear is not well-founded if it is merely assumed or mere speculation (Guo at [48]). I agree that it was in that sense that the word “speculation” was used by the Tribunal. Accordingly, ground 4 of the appeal is not made out.
3.5 Ground 5: Onus of proof
Ground 5 contends that the primary judge erred in failing to find that the Tribunal adopted an onus of proof inconsistent with the “real chance” test. The argument advanced was that the Tribunal imposed an onus in its reasons at [29] in finding that it was “unable to be satisfied as to the credibility of the Applicant’s claims regarding his experiences in Nepal”.
It is plain that there is no onus of proof in proceedings such as those conducted by the Tribunal. In Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [40], the Court (per Gummow ACJ, Callinan, Heydon and Crennan JJ) found (footnotes omitted):
This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened. …
In Guo the High Court relevantly said (at [55] – [57]):
In determining whether there was a real chance that Mr Guo would be persecuted for a Convention reason, the Tribunal had no choice but to form an opinion as to what was likely to occur if Mr Guo was returned to the PRC. …
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events had occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. … unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. …
The learned primary judge correctly observed that the ultimate question for the Tribunal is whether it is satisfied that the applicant satisfies the criteria for the grant of the Visa. This question inevitably requires the Tribunal to make findings of fact. Those findings are often expressed in terms of satisfaction, or lack of satisfaction. I agree, with respect, that this is precisely how the Tribunal’s findings in the present case are to be understood. The Tribunal’s lack of satisfaction about the credibility of the applicant’s claims had nothing to do with any onus of proof. It was a conclusion reached upon consideration of all of the material before the Tribunal. Accordingly, this ground of appeal should be rejected.
3.6 Ground 6: Unreasonable finding of applicant’s credibility
Ground 6 contends that the primary judge erred by not concluding that the Tribunal had made unreasonable findings in determining that the appellant lacked credibility in not seeking the Visa while he held a student visa.
The Tribunal considered that the appellant’s delay of nearly five years before seeking protection in Australia cast doubt on the truth of his claim to fear harm if he returned to Nepal. The Tribunal considered the explanation provided, namely that he had a student visa and, after that was cancelled, applied for a review of the decision. It was not satisfied that this adequately explained the delay in circumstances where the appellant claimed to have been forced to flee to Australia and have a genuine fear of being harmed upon return to Nepal. I agree with the learned primary judge’s reasoning that the appellant has not demonstrated irrationality or illogicality in the Tribunal’s reasoning. It was open to the decision maker to infer that a person who claims to fear persecution would seek a permanent visa rather than rely on a temporary one. Further, the appellant’s explanation for the five year delay was but one of four stated reasons advanced by the Tribunal for concluding that the appellant’s claims were not credible. No challenge is brought against the other three findings each of which was expressed (at [28]) by the Tribunal cumulatively to give rise to the ultimate finding at [29] that it was not satisfied as to the credibility of the appellant’s claims regarding his experiences in Nepal.
4. DISPOSITION
For the reasons set out above I conclude that none of the grounds of appeal advanced have been made out. Accordingly, the appeal should be dismissed with costs.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 10 February 2017
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