FEDERAL COURT OF AUSTRALIA

“J” v Minister for Immigration & Multicultural Affairs [2001] FCA 256

MIGRATION – application for a protection visa – whether a failure to observe procedures required by the Act in connection with the making of the decision - whether a failure to set out findings on material questions of fact – whether misinterpretation of the test for refugee sur place – inadvertent failure to make complete recording of the Tribunal hearing – whether solicitor’s notes indicated unrecorded matters – failure to set out material questions of fact regarding a claim made in the unrecorded portion of the hearing about a basis for well-founded fear of persecution

Migration Act 1958 (Cth), ss 5(1), 36, 430, 475(1)(b), 476(1), 481(1)

Migration Regulations 1994, Schedule 2, cl 866.221

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 referred

Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 followed

Minister for Immigration & Multicultural Affairs v Yusuf (1999) 95 FCR 506 referred

Minister for Immigration & Multicultural Affairs v Israelian [1999] FCA 649 referred

Minister for Immigration & Multicultural Affairs v Epeabaka (1999) 84 FCR 411 referred

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred

Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 referred

Gu v Minister for Immigration & Multicultural Affairs [1999] FCA 991 referred

Minister for Immigration & Multicultural Affairs v Israelian [1999] FCA 649 referred

Nguyen v Minister for Immigration & Multicultural Affairs (1998) 158 ALR 639 referred

Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 referred

“J” v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 574 of 1998

KENNY J

MELBOURNE

16 MARCH 2001

THE COURT ORDERS THAT:

1.                  The decision of the Tribunal made on 25 September 1998, affirming the decision not to grant the applicant a protection visa, be set aside.

2.                  The matter to which the decision relates be remitted to the Tribunal for further consideration and determination in accordance with law.

3.                  The respondent pay the applicant’s costs of and incidental to the application. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application under ss 475(1)(b) and 476(1) of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision made by a delegate of the respondent (“the delegate”) on 17 September 1997 not to grant the applicant a protection visa. 

the delegate’s decision

2                     The applicant is a citizen of the Republic of Kenya (“Kenya”).  He arrived in Australia lawfully in 1996.  On 23 July 1997, he applied for a protection visa (Class 866).  The delegate summarised the applicant’s claims in the following way:

3.1.1        that in January 1996, the applicant met an Australian friend and her mother who were visiting Kenya; that they later invited him to visit Australia; that the applicant later developed a de facto relationship with his Australian friend.

3.1.2        that the applicant believes that he would be persecuted on his return to Kenya on the grounds of religion, race, and political opinion.

3.1.3        that the applicant is a Christian and a member of [a Kenyan] tribe … .

3.1.4        that when President Moi came to power and after [an event in 1992], the applicant’s family became known to oppose the present President Moi Government; that [members of the applicant’s family], and the majority of the applicant’s clansmen are members of [an opposition party].

3.1.5        that for more than a decade, the applicant’s family had been harassed by the Kenyan authorities with his [relatives] been arrested (sic) but never formally charged; that recently all dissidents were brutally oppressed by the Moi Government. 

3.1.6        that since the applicant’s arrival in Melbourne, he has been involved with the local Kenyan opposition groups and their publication activities; that the Kenyan Government is now aware of his dissident profile; that he fears that the Kenyan authorities may regard his absences as part of his military training abroad. 

3                     The delegate did not accept that:

[O]n the basis of these claims, the applicant would face a well-founded fear of persecution, should he return home to Kenya. 

The delegate therefore refused the applicant’s application for a protection visa. 

proceedings before the tribunal

4                     The applicant applied to the Tribunal for review of the delegate’s decision.  In written submissions lodged in May 1998, the applicant informed the Tribunal that he

does not assert that he was at risk of persecution at the time when he came to Australian initially.  Rather, it is submitted that it is the applicant’s association with and involvement in political groups in Australia, which are opposed to the Kenyan government, which activities have given rise to sur place claims of persecution on the basis of political opinion, and that this risk is enhanced by the fact of [his Tribal] ethnicity. 

That is, before the Tribunal, the applicant’s claim for refugee status was based primarily on his involvement in Australia with individuals and organisations who were opposed to the government of President Daniel arap Moi.  The applicant made substantially the same claim in his initiating application in July 1997. 

5                     In Australia the applicant became involved with an international human rights organisation.  In this regard, the applicant relied on –

(a)    a letter from the organisation dated 23 June 1998 confirming the applicant’s active participation in the organisation’s Kenya campaign in 1997;

(b)    a letter from The Honourable Victor Perton, Member of the Victorian Legislative Assembly, dated 20 March 1998 confirming the applicant’s involvement in a meeting of the organisation held at Parliament House in 1997; and

(c)    a letter from the co-editors of a newsletter about Kenyan affairs dated 23 March 1998 referring to the applicant’s “prominent role in the launch of the [organisation’s] worldwide campaign on human rights abuses in Kenya held in Melbourne in [1997]”.

6                     The applicant also relied on his active involvement in the publication of the newsletter on Kenyan affairs.  In their letter dated 23 March 1998, the co-editors also wrote:

[The applicant] approached us some time early in 1997 after coming across copies of [the newsletter].  He offered to work with us – mainly assisting as a research person.  He said although he did not have much formal education he was very interested in the human rights issues and wished to support our efforts in any way he could. 

We were pleased to have someone who had left the country more recently and who could collaborate some of the information we were collecting from various sources.  He proved himself useful in the research and the writing he did … .  He also proved very useful in carrying out the various tasks that go with publishing a community-based newsletter.

[The applicant] was different from most of the other Kenyans who were always too scared to participate in activities of this nature in case they or their families in Kenya got into the bad books of the government.  …

[The applicant] showed us a letter … that showed that Kenyan authorities are taking an interest in his activities.  This must have come as a surprise to him as he has not been a prominent person politically.  This has worried him since … activists or suspected activists are treated harshly.  Sometimes they are killed.  Often the public would not have heard about them until they are killed.  [The applicant] suspects part of the reason for their suspicion is due to his [relative’s] activism.  The other reason is that he is living overseas.  The Kenya government has been getting increased criticism from Kenyans overseas.  

Going by the letter [the applicant] has from his [relative], it does appear to us that he would be in trouble were he to return to Kenya.  It is often a risk to write [a] letter like that, as letters going overseas or coming from overseas are often opened.  Recent events in Kenya indicate that the situation is getting worse, not better.  Moi recently directed his attacks on the Human Rights organisation. 

It is our opinion that [the applicant] would be marked for his activities in Melbourne.  Being a young person and [of his Tribe] would make him suspect as this is the group that has been most militant in opposing the Moi regime.

7                     An article, written by the applicant and mentioned in the above passage, was in evidence before the Tribunal.  A letter from the applicant’s relative dated 19 August 1997, also mentioned in the above passage, was before the Tribunal too.  In it, the applicant’s relative stated, amongst other things, that the applicant should “not think of coming home just yet” and that he “should try and stay away for a few months more or at least until after the reforms”.  The relative expressed fears about the situation in Kenya and, in a postscript to her letter, she wrote:

I have just been told that some guys were inquiring what you are doing in Australia.  I hope this does not mean trouble!  Will keep you posted.

The applicant informed the Tribunal that he had not heard further from his relative since the receipt of the letter. 

8                     In addition, the applicant relied on a letter dated 28 August 1998 from Dr David Dorward, Director, African Research Institute, La Trobe University.  Amongst other things, Dr Dorward’s letter supported the applicant’s submission that the Moi government in Kenya would perceive him to be a member of a dissident political group by virtue of his association with dissidents in Australia.  The letter, which was directed to the applicant’s legal advisers, read as follows:

On the basis of the brief provided on [the applicant’s] case and on the situation in Kenya, I am of the opinion that your client has a reasonable case for concern of persecution were he to return to Kenya. 

The Kenyan High Commission in Canberra is responsible for looking after Kenyans in Australia and reporting on matters that might affect Kenyan-Australian relations, including activities of dissidents critical of the ruling regime.

[The newsletter] … has close associations with [the dissident political group (“the dissident group”)].  It is reasonable to assume that the contents of [the newsletter] and all those who contribute to it would be reported on by the High Commission in Canberra.  People have been imprisoned or assassinated in Kenya for saying far less than that which regularly appears in the pages of [the newsletter].  [The applicant’s] article … was a prominent article that explicitly criticised human rights abuses by authorities in Kenya.  … .

The current Kenyan regime has been accused of political assassinations, harassment and imprisonment of critics and encouraging tribal clashes directed against [the applicant’s Tribe] and other tribes regarded as opponents of the Moi regime.  [The organisation] has been a significant international agency in the expose of Kenyan political and civil rights abuses.  If [the applicant] was working in any way with [the organisation], this would be viewed with considerable ire by Kenyan authorities. 

The expatriate African communities in Australia take an active and often critical interest in the domestic politics, policies and practices of their countries of origin.  One of the privileges many have come to experience for the first time in Australia is the freedom to openly criticise oppressive regimes.  This appears to be the situation in [the applicant’s] case.  I have encountered [the applicant] on a number of occasions at various African gatherings and activities.

It is my considered opinion that [the applicant] would be in danger were he to return to Kenya while the current Moi regime holds power.

9                     As the Tribunal noted, the applicant’s claim turned mostly on the significance of his activities in Australia.  His evidence was not confined to these activities, however.  In order to place his claim in context, he referred to a period of three-weeks detention in 1992 on charges that were ultimately dismissed by a court, and to the detention and harassment of his relatives, on account of their political activities. 

reasons for the tribunal’s decision

10                  The Tribunal accepted, for the most part, the applicant’s evidence regarding his arrest in 1992.  The Tribunal found that:

[T]he Applicant was accused of a civil or criminal offence in 1992 and, according to his evidence, was found not guilty.  It finds that the charge was unrelated to the Convention and that no adverse consequences have flowed from it since he was released from custody, given that he remained in Kenya for the following four years without being harassed. 

11                  Whilst the Tribunal accepted that the applicant’s family had “a history of association” with an opposition party in Kenya, the Tribunal found that:

[N]othing happened to the Applicant when he was in Kenya to suggest that he might be a target of harm on account of affiliation with [the opposition party]. 

The Tribunal stated:

In considering the prospects that the Applicant may be harmed because he has some family association with [an opposition party], the Tribunal concludes that any fears in that regard are groundless.  He has not been directly associated with [an opposition party] or active in its causes and there is no evidence that the relative that is closest to its centre of power … has been adversely treated during the election campaign or since that time.  Nor is there any evidence that other members of his family were targeted or harassed on account of their real or imputed political affiliations or opinions over the same period. 

In this proceeding, the applicant has not challenged any of these findings.

12                  The Tribunal correctly identified that:

The main thrust of the Applicant’s claims to be a refugee is that he has become a vocal critic of the Kenyan government since he arrived in Australia.  His activities have become apparent since early 1997 and are manifested in the publication of an article in [the newsletter] in [1997] and in his involvement in [a] campaign [by an international human rights organisation].  As a consequence of his involvement in political activities in Australia, the Applicant states that he is perceived to belong to [the dissident group]. 

13                  Whilst the Tribunal accepted the applicant’s account of his involvement with the international human rights organisation in 1997, it found that:

Since then, … he has continued to obtain printed materials from that organisation but has not had a direct contribution to further human rights campaigns it has conducted. 

The Tribunal also accepted that the applicant had contributed an article to the newsletter on Kenyan affairs, but it found that he had “not kept up contact with that periodical”. 

14                  In summary, the Tribunal concluded that:

[T]he Applicant has an interest in Kenyan politics, but his failure to maintain active participation with the two groups he had previously turned to in order to express his views leads to the conclusion that his interest has waned or is not as strong as he would otherwise like the Tribunal to believe.  Similarly, his desire to keep his views to himself while he is in Australia because there may be a risk in the future, indicates that he would not be outspoken if he were to return to Kenya and speaking out may put him at risk.  The level of his interest and participation is also evident in the failure to keep abreast of the political process in Kenya, which went through elections in December 1997.

15                  The Tribunal added:

The Tribunal does not intend to be dismissive of the level of the Applicant’s knowledge, but it finds it to be at odds with his professed interests and activities.  It concludes that he has a genuine interest in Kenyan politics, was spurred into some activities after he made his refugee application, but since that flurry of activity he has not been nearly so active in pursuing his political views.  In fact, he stated that he had curtailed his public activities to the extent that he did not want to publish a further article because it may put him at risk.

16                  In connection with the claim that an association with the dissident group would be attributed to the applicant, the Tribunal noted:

(a)     the difficulty in obtaining firm information about the group’s contemporary status and activities;

(b)     a statement by a spokesman for the group that “it operates underground in Kenya and refuses to join in the electoral process for as long as President Moi is in power”; and

(c)     that the group, which aims to be rid of President Moi, “operates outside Kenya, where it is a vehicle for dissident intellectuals”.

The Tribunal said:

Whilst it apparently operates abroad, there have been times when it may have operated underground in Kenya and Moi’s regime had falsely accused dissidents of being members in Kenya and had seriously mistreated them. 

17                  Though it noted Dr Dorward’s advice to the contrary, the Tribunal found:

[T]he available information does not support the Applicant’s contention that he will be perceived to be a member of [the dissident group] because he has been affiliated with [an international human rights organisation] and has written an article for [the newsletter].  The Applicant has stated that he is not a member of that [group].  He has written an article for [the newsletter] that reflects the views of [the international human rights organisation] but does not press the more radical political views of [the dissident group].  The Applicant’s article does not call for the overthrow of Moi, either violently or non-violently:  it calls for pressure on the government and the introduction of multiparty democracy.  He states he is friends with [the dissident group’s] members, but he could give no information about the location of the [group’s] premises in Melbourne or of its operations.  Similarly, despite claiming a close association with the editors of [the newsletter], he was unaware whether or not a scheduled issue had been published.  He has a clean police record in Kenya, has no links with [the dissident group] and does not publicly profess its views.  His claimed links with [the dissident group] are very remote.  On the basis of the available evidence, the Tribunal is satisfied that he will not be imputed with membership of that organisation, either through his family history, his personal friendships, his prolonged stay in Australia or his contribution to political or community activities in Melbourne.

18                  The Tribunal found that Dr Dorward’s opinion that, by reason of his activities in Melbourne the applicant would be at risk of serious harm if he returned to Kenya, was not supported by “the bulk of the information”.  It found:

That information leads to the conclusion that criticism of the government in Kenya is wide spread and, in most cases, is received without a harmful response.  Human rights groups, including those which advocate women’s rights, actively oppose and criticise government policies and have met with limited success in obtaining reform.  In a few instances, a small number of the more outspoken critics have been harassed, some of them being deprived of their freedom for varying periods.  However, instances of critics meeting with serious harm are rare and have diminished since the reforms of late 1997, as observed in the 1997 US Report.

19                  Earlier in its reasons, the Tribunal stated:

The available evidence leads to the conclusion that a small number of critics of the government who are perceived to be threats to its continued rule might be threatened or detained and interrogated for a relatively brief time.  Such critics are those with a relatively high profile, such as opposition leaders, outspoken human rights activists, student leaders and the like.  A few of them encounter more serious harm.  However, among those people with a relatively high profile, many are able to pursue their activities and their opposition to the government and its policies without being seriously harmed. 

There is also evidence of mob violence that has its genesis in ethnic or political differences.  … .  Overall, however, people who do not have a relatively high political profile such as they are able to attract public support to their views, are not the targets of government measures aimed at curtailing opposition and do not face a real chance of being harmed.  It is possible that some others may be caught in the sporadic dispersal of political meetings, particularly if a proper permit has not been obtained.  Given their apparent frequency and the high rate of participation in those meetings, the occasions on which they are violently dispersed are rare and there is not a real chance that the Applicant may be caught up in such a meeting and be harmed.

20                  Of the applicant’s political activities in Australia, the Tribunal said:

He had a brief flurry of political activity in 1997 and has since stated that he has deliberately not published some material because he fears it may endanger him in the future.  He has not taken on any role as an office-holder in any African or human rights organisation in Australia.  His past history in Kenya and his understandable concern for his personal security, even when he is free to express his opinion in Australia, leads to the conclusion that he will be circumspect in expressing his views in Kenya.  He has not indicated that he has the commitment or knowledge to take on a leadership role or other functions that might bring him to the notice of the authorities in Kenya.  While it may be the case that Kenyan representatives in Australia are aware of his article in [the newsletter] and his contribution to [the international human rights organisation’s] campaign in 1997, the Tribunal is satisfied that there is not a real chance of the Applicant being harmed if he returns to Kenya, having regard as well for the fact that he is [of his Tribe] and his family has a history of political opposition.  Nor is it satisfied that he might undertake activities in Kenya that would bring him within the relatively small group of government critics who may encounter serious harm on account of their political opinions. 

In giving overall consideration to the Applicant’s claims, the Tribunal accepts that the political activities in which he has been involved in Australia may be known to local Kenyan representatives and may have been reported to the government in Kenya.  It accepts that the political opinions of his family members are also known to the Kenyan government.  However, in light of all the available evidence, it concludes that he does not face a real chance of being seriously harmed for those reasons, taken in combination with his ethnicity and religion.  It concludes that he does not have a well-founded fear of persecution on account of his real or imputed political opinions, his religion, his race or any other Convention reason.

Accordingly, the Tribunal affirmed the delegate’s decision not to grant a protection visa. 

the proceeding in this court

21                  The applicant applied for review on 21 October 1998.  He amended his application on 12 February 1999.  Not all of the grounds of review set out in his amended application were pressed at the hearing.  In particular, the applicant abandoned an allegation that there had been a breach of the kind referred to in s 476(1)(a) of the Act because the Tribunal had failed to act according to the substantial justice and merits of the case as required by s 420(2)(b) of the Act.  That allegation became untenable in light of the decision in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611. 

22                  The grounds of review relied on at the hearing may be summarised as follows:

(1)    The Tribunal failed to comply with its obligations under s 430 of the Act because:

(a)      it failed to refer to the opinion of the co-editors of the newsletter that the applicant would be at risk of serious harm if he returned to Kenya;

(b)     it failed to demonstrate why it preferred general country information over the specific and expert opinion of Dr Dorward;

(c)      it failed to refer to the evidence on which it found that “people who do not have a relatively high political profile … are not the targets of government measures aimed at curtailing opposition and do not face a real chance of being harmed”. 

(d)     it failed to make findings in relation to the claim that he faced persecution on account of having sought asylum outside of Kenya.

(2)    The Tribunal incorrectly interpreted or misapplied the test for a refugee sur place by imposing threshold requirements that were inconsistent with the task of determining whether the applicant had a well-founded fear of persecution upon return to Kenya. 

The last-mentioned matter was said to constitute reviewable error by virtue of s 476(1)(e).  The failure to comply with s 430 was said to constitute reviewable error pursuant to pars 476(1)(a) or (e).  In the case of par (c) above, there was also said to be reviewable error under s 476(1)(g). 

legislative framework

23                  Section 36 of the Act provides:

(1)    There is a class of visas to be known as protection visas.

(2)    A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The Refugees Convention is defined in s 5(1) as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol, as the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  Schedule 2 of the Migration Regulations 1994 (“the Regulations”) makes further provision for protection visas.  Clause 866.221 of the Regulations provides that it is a criterion for a protection visa that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Protection obligations arise in relation to a person who falls within the definition of “refugee” in the Convention as amended by the Protocol (collectively “the Convention”).  A refugee is defined in Article 1A(2) of the Convention as any person who –

owing to a 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 … .

failure to follow procedures – s 476(1)(a) and s 430

24                  Section 430 of the Act “calls for a recording of matters that are essentially matters of fact, namely the decision to which the [Tribunal] came, the actual reason for coming to that decision, the findings of fact that were actually made and the material on which those findings were based”:  see Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 (“Singh”) at 480.  The majority of the Full Court (consisting of five members) in Singh held that a failure on the Tribunal’s part to comply with its obligations under s 430 constituted a reviewable error within s 476(1)(a) of the Act.  In discussing the content of the obligation, the majority said at 480-481:

There is no specific requirement in s 430 for the [Tribunal] to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made.  … .  The endorsed view is subject to the important qualification that if one of the reasons which actually induced the [Tribunal] to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the [Tribunal’s] actual reasoning process:  see [Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 74 ALJR 405].

The qualification … concerns s 430(1)(c), insofar as it requires the [Tribunal] to set out its findings on any material questions of fact.  Ordinarily, materiality is an objective concept.  If the [Tribunal] fails to make a finding on a fact which is in truth, as a Court subsequently determines, a material fact, then s 430(1)(c) will not have been complied with, even though the [Tribunal] has recorded its findings in relation to the facts before it that it regarded as material. 

The generally accepted view in this Court has been that the [Tribunal] is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make.  It must make findings on questions of fact that are central to the case raised by the material and evidence before it.  In this respect, s 430 sets a standard of decision-making the [Tribunal] is required to observe. 

25                  The majority added, at 482:

The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision.  Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it.  Conversely an applicant may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them.  … .

Accordingly if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one.  But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with:  see Durairajasingham at 416 [65] and 417 [67]. 

26                  Although the High Court has recently heard appeals from Minister for Immigration & Multicultural Affairs v Yusuf (1999) 95 FCR 506 and from Minister for Immigration & Multicultural Affairs v Israelian [1999] FCA 649 which again raise questions concerning the construction of s 430 and its relationship with s 476(1)(a), judgment on those appeals has not yet been delivered.  It suffices to say, therefore, that the principles set out in Singh are binding upon me.

27                  The applicant submitted that the Tribunal failed to comply with its s 430 obligations because, in its discussion of the well-founded fear of persecution issue, it failed to mention the opinion of the newsletter’s co-editors that the applicant would be at risk of serious harm if he returned to Kenya.  I reject this submission.  In the circumstances, the Tribunal was under no obligation to mention this opinion specifically at this point in its reasons.  Nor was it obliged to give reasons for its rejection of it. 

28                  In their letter of 23 March 1998, the co-editors made it clear that their opinion was substantially based on the relative’s letter referred to earlier.  In discussing this letter, the Tribunal unequivocally rejected the basis for the co-editors’ opinion.  Of this letter, the Tribunal said:

The Tribunal notes that the letter from [his relative] … pre-dates the article in the [newsletter] and his public work with [the international human right organisation], so that her postscript, that she had heard that some people had been asking about him, was unrelated to political activities here.  She said she would keep him informed about the enquiries, but has not contacted him again, although he is aware that she has been overseas and has returned.  The Applicant obtained a passport and left Kenya through normal channels.  He has a clean police record and was not involved in any dissident activities in Kenya.  At the time [his relative] … wrote her letter, he had not been involved in public political activities in Australia.  The Tribunal concludes that there was nothing untoward in people asking about him and that [the relative’s] silence in that regard since August 1997 is consistent with that conclusion.  It is satisfied that the enquiries [the relative] had heard about are not an indicator that the Applicant may be harmed if he returns to Kenya.

If a reason for the Tribunal’s ultimate decision was its rejection of the applicant’s submission concerning his relative’s letter, then the rejection was specifically explained.  The Tribunal was not required to say more about an opinion that the opinion-holders themselves said was based on that letter, having regard to its findings about the letter. 

29                  The applicant also submitted that the Tribunal failed to comply with its s 430 obligations because it failed to set out adequately or at all its reasons for rejecting Dr Dorward’s opinion.  In written submissions, the applicant said:

[G]iven the significance of this opinion to the applicant’s claim, it was incumbent upon the Tribunal to set out reasons for its preference in sufficient detail so as to discern the logic of the decision.  The Tribunal simply stating it prefers one piece of evidence to another does not make out compliance with s 430.  The applicant is left with an incomplete idea as to the basis of the decision.  It is unknown for example whether Dr Dorward was considered an expert, as the Tribunal did not make any finding as to the expertise of the witness.  It is unknown what information was relied upon to discount his opinion. 

30                  There is no substance in this complaint.  Dr Dorward’s opinion was that the applicant “would be in danger were he to return to Kenya while the current Moi regime holds power”.  As already noted, the Tribunal found that there was little support for Dr Dorward’s opinion in the material before it.  The material upon which the Tribunal relied in rejecting Dr Dorward’s opinion is set out in some detail in its reasons.  This material included Australian government information, a text book, periodicals, publications of an international human rights body and US Department of State Human Rights reports.  Furthermore, as already noted, the Tribunal specifically stated what it was about the material before it which led it to reject Dr Dorward’s opinion about the risk of return.  I refer, in particular to its statement that “the bulk of information” before it “leads to the conclusion that criticism of the government in Kenya is widespread and, in most cases is received without a harmful response” and to its finding that it was not satisfied that the applicant would fall into “the relatively small group of government critics who may encounter serious harm on account of their political opinions.”  According to the majority in Singh, if one reason for the Tribunal’s decision was that it rejected Dr Dorward’s opinion, then it was required to say so.  The Tribunal did as much.  It was not required to make any more detailed critique.

31                  The applicant also submitted that the Tribunal had failed to comply with its obligations under s 430 of the Act because it had failed to refer to the evidence for its finding that “people who do not have a relatively high political profile … are not the targets of government measures aimed at curtailing opposition and do not face a real chance of being harmed”.  I reject this submission.  The finding was immediately preceded by a lengthy discussion of the material before the Tribunal.  It began with a reference to Dr Dorward’s opinion, continued with a relatively lengthy reference to US Department of State Human Rights Report for 1997:  Kenya (“the 1997 US Report”), and concluded with reference to an international human rights organisation’s publication.  The Tribunal’s reasons indicate that this material was the basis for its findings about relatively high profile people.  Presumably, the Tribunal had in mind the examples of harassment referred to in the 1997 US Report and in the human rights organisation’s publication.  It is true, as the applicant noted, that the students and priest to which the latter publication refers may not readily be classified as “high profile” individuals.  In making its finding, the Tribunal presumably had in mind the Safina activists, journalists, members of the Release Political Prisoners pressure group, an opposition presidential candidate, a khrc investigator, Safina founder, and a National Democratic Union leader, all of whom were referred to in the 1997 US Report.  Perhaps too, it had regard to the reported lessening in “[h]arassment of opposition and human rights activists” with the “passage of the ippg-brokered reforms” also mentioned in the passage of the 1997 US Report set out in the Tribunal’s reasons.  In referring in this way to the material on which the “high profile” finding was based, the Tribunal discharged its s 430 obligations.  The Tribunal would not commit reviewable error even if it were shown that the finding made by it was not logically to be inferred from the material mentioned:  see Minister for Immigration & Multicultural Affairs v Epeabaka (1999) 84 FCR 411. 

32                  I return to the question whether the Tribunal breached its s 430 obligations by failing to make findings on the claim that he faced persecution merely on account of his application for asylum at the conclusion of these reasons.

reviewable error – s 476(1)(g)

33                  For the reasons already given, I reject the submission that reviewable error of the kind described in s 476(1)(g) of the Act is shown.

reviewable error – s 476(1)(e)

34                  The applicant contended that the Tribunal incorrectly interpreted the test for a refugee sur place.  As the applicant noted, the Tribunal accepted that “the political activities in which he has been involved in Australia may be known to local Kenyan representatives and may have been reported to the government in Kenya”.  The applicant submitted that in rejecting his sur place claim, the Tribunal failed to address a key issue, namely, how his political activities in Australia were likely to be viewed and responded to by authorities in Kenya.  Instead of addressing this issue, the Tribunal, so the applicant said, focussed its attention on his lack of direct involvement in fact with the dissident group.  The applicant further contended, in written submissions, that:

The Tribunal was in error in elevating the requirement for a successful sur place [sic] in that it appears to have required that the applicant have at least the following whilst in Australia:

·        A continuing public involvement with [the newsletter, the international human rights organisation and the dissident group]

·        A thorough knowledge of current day Kenyan political developments

·        A high profile, such as being an office holder in an African or human rights organisation

·        A demonstrable commitment to and knowledge of Kenyan politics so that it can been inferred he will take on a leadership role in Kenya (i.e. adopt a high profile on his return and be outspoken)

Again, the Tribunal was diverted from its task by failing to grapple with one of the ‘key issues’, namely the likely reaction of the Kenyan government to the perceived activities of the applicant in Australia.  It focussed its attention on the position of those already in Kenya.

35                  This complaint is not made out.  As already noted, the Tribunal expressly recognised the sur place nature of the applicant’s claim.  With this in mind, the Tribunal set out the applicable law referring, amongst other things, to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.  On a fair reading of the Tribunal’s reasons, the Tribunal assessed the applicant’s claim to be a refugee sur place against the applicable law, including the need for the Minister’s satisfaction that he was a refugee as defined in Article 1A(2) of the Convention.  If there were any doubt about the matter, it is removed by the Tribunal’s stated satisfaction that membership of the dissident group would not be attributed to him in consequence of the matters to which the applicant had referred, especially his activities in Australia.

36                  I do not accept the applicant’s contention that the Tribunal elevated any of the matters mentioned in his written submissions or, indeed, at the hearing into a requirement for a sur place refugee claim.  It was open to the Tribunal to consider such matters, including his contemporary knowledge of Kenyan politics and the nature of his public involvement in Australia in political or civil rights associations, in determining whether he would be at risk of serious harm were he to return to Kenya by reason of the Kenyan authorities’ perception of and reaction to him.  The Tribunal’s reasons for decision reflect this process.  They do not show that the Tribunal misinterpreted or misapplied the law according to which a sur place claim is to be assessed.

failure to follow procedures – s 476(1)(a) and s 430 revisited

37                  On the hearing of this matter, the applicant was given leave to amend his application to permit him to contend that the Tribunal failed to set out its findings in relation to his claim “that he faced persecution on account of having sought asylum outside of Kenya”.  Relying on s 476(1)(a) of the Act, the applicant contended that this omission was a breach of the Tribunal’s duty to set out findings on material questions of fact as required by s 430(1)(c) of the Act.  Relying on s 476(1)(e), the applicant also contended that the Tribunal failed to exercise its jurisdiction properly by failing “to address the totality of the claims advanced”. 

38                  The applicant submitted that the issue of a well-founded fear of persecution based upon his status as an asylum-seeker in Australia was raised in the written material and at the hearing before the Tribunal.  The respondent disputed this.  The applicant submitted that the point arose in the references, contained in his written submissions, to the detention of two Kenyan dissidents who had obtained refugee status in other countries.  There was, however, no suggestion in these submissions that there was any causal link between dissidents seeking asylum and their later detention on returning to Kenya.  On the contrary, the detentions were referred to by the applicant in his submissions in support of a much broader contention that “the Kenyan government has a particularly antagonistic attitude towards those who undermine it from abroad”.

39                  There were two more instances which, according to the applicant, raised the point.  They were contained in reports about Kenyan dissidents.  One, an international human rights organisation’s report, concerned a Kenyan businessman affiliated with a dissident, illegal, political group known as the February Eighteenth Movement.  The other, a much more general report, related to members of the dissident group who had obtained refugee status and had subsequently returned to Kenya.  The Tribunal presumably read this material (as do I) as indicative of the fact that the relevant individuals were subject to adverse treatment in Kenya upon their return on account of their political activities in Kenyan politics, not on account of any application for asylum in another country.  The applicant made no attempt to tie the situation of the political activists considered in these reports to his own situation. 

40                  I reject the submission that the Tribunal ought to have understood from this material that there was a separate asylum-seeking ground being raised by the applicant.  In his initiating application for a protection visa, the applicant said nothing of this alleged ground.  His claim for refugee sur place status turned entirely on his activities in Melbourne, including an alleged association with members of the dissident group in Melbourne.  A mere reference to political activists who happened to have obtained refugee status in other countries and were subject to injurious treatment on their subsequent return to Kenya does not support the applicant’s submission that his asylum-seeking was raised as a separate ground.

41                  The applicant alleged, however, that he had specifically raised the asylum-seeking ground at the hearing before the Tribunal.  The evidence for this is in notes written by the applicant’s then legal representative, Mr Paul Fisher.  In an affidavit sworn in this proceeding, Mr Fisher deposed that he attended the hearing before the Tribunal on 9 September 1998 and took notes in the course of the hearing.  He deposed that he had subsequently listened to the audio-cassette tapes of the hearing made for the Tribunal, read the transcript produced from these tapes, and compared the transcript with the notes made by him.  From this, he concluded:

[T]here is a significant period of the hearing that was not recorded on the tape, and accordingly, was not reproduced in the transcript of proceedings.  The gap in the transcript occurs between the end of page 23 (where the words ‘So what happened was …” appear) and the beginning of page 24 (where the words “TAPE CHANGEOVER” appear). 

My notes indicate that during this gap in the transcript a number of questions were asked of the applicant and his responses relating to critical matters were not recorded on the tape.  In particular, the applicant stated that he feared persecution based on the fact that other Kenyans who had sought asylum outside Kenya and were returned to Kenya were arrested and detained as a result of having sought refugee status.  Having perused my notes I recall that during the hearing the member asked the applicant whether his application for refugee status itself placed him at risk of persecution should he be forced to return to Kenya.  The member asked the applicant how anybody would know whether he had applied for refugee status and there was a discussion of the risk to refugee applicants who returned to Kenya.  …

Having perused my notes, I recall that the applicant was also asked:  what provoked him to make a refugee application; about whether there had been a change to the laws in Kenya; whether his [relative] … had travelled outside Kenya and returned in the past year; what harm the applicant actually feared if he returned to Kenya; and whether he held a subjective fear of persecution.  The applicant was also questioned about his involvement with [the newsletter].  The editor of [the newsletter’s] activities and movements were discussed as well as the applicant’s level of interest in [the newsletter].

If one examines the transcript at pages 23 and 24 it is clear that page 24 indicates a recommencement of the hearing after a tape changeover.  However, the topic under discussion at the beginning of page 24, when the [Tribunal] states ‘You were telling me about [the newsletter]?’, is a different topic to that discussed at the end of page 23.

Accordingly, it is my firm belief that the hearing was not fully taped and therefore not fully transcribed.

42                  I accept that the transcript of the hearing does not record all that transpired at the hearing.  The transcript is discontinuous at least at one point, namely, between pages 23 and 24.  The respondent did not contend to the contrary.

43                  The only evidence of what transpired during this unrecorded part of the hearing is what is contained in Mr Fisher’s notes.  I accept that the following portion of Mr Fisher’s notes is a partial record of what took place in that unrecorded period.

What do you think will happen if you go back?

Many [Tribespeople] killed.  People has applied for Ref. in other countries and went back home, arrested and detained.  Government seem to have a vow that you need loyalty to president and country.

Application for refugee status itself a risk?

         Grant of refugee status here and return still [illegible]

         Because.  How.

How would anyone know you’ve applied for refugee status?

Bridging visa?  Look through passport.  Here three years.  Kenyan government.

Discussion of risk to refugee applicants who return.

What do you actually fear?

Involvement here in [the newsletter/the international human rights organisation] could lead to interest of authorities.

44                  Mr Fisher’s evidence in cross-examination was that he could not recall anything more than that which he had set out in his affidavit or appeared in his notes.  He also said that his notes were not necessarily complete because he was not always able to record entirely what was said, particularly when he was a participant in the discussion with the Tribunal (which may have been the case here).  I accept Mr Fisher’s evidence.  As already noted, Mr Fisher’s evidence was that the Tribunal itself asked the applicant whether he considered that the making of an application for refugee status was “itself a risk”.  Mr Fisher’s notes establish that the Tribunal, the applicant and, perhaps, Mr Fisher went on to discuss the subject further.

45                  Notwithstanding that there is very limited evidence as to the content of the discussion, I accept that the question was raised as to whether the applicant’s application for a protection visa gave rise to a well-founded fear of persecution.  Mr Fisher’s notes indicate that the applicant probably expressed the view that his application could place him at risk if he were to return to Kenya and that his status as an applicant for asylum could be inferred from an inspection of his passport and from the length of his stay in Australia.  This evidence does not show, however, the depth to which the Tribunal explored the issue.  For example, Mr Fisher’s notes may indicate some confusion in the applicant’s mind between a successful applicant for asylum who later returns to Kenya and an applicant who returns to Kenya after an asylum application has failed.  (As already noted, evidence of the detention of the former, perhaps because of his or her political activities, is not necessarily evidence that the latter would be exposed to risk if he or she were returned.)

46                  As already noted, the requirement in s 430(1)(c) is to set out findings on “material questions of fact”.  The Tribunal asked questions about the effect of an application for refugee status and the applicant answered by claiming a further ground for his “well-founded fear of persecution”.  The applicant submitted that once the applicant claimed the asylum-seeking ground and gave evidence on it, the Tribunal was required to make findings on the material questions of fact relevant to it.  There was, as the respondent conceded, no reference to the ground in the Tribunal’s reasons. 

47                  In these circumstances, were there questions of fact arising from the applicant’s claim (as expanded at the hearing) that were material in the sense explained in Singh and that were not set out by the Tribunal as required by s 430(1)(c)?  The Tribunal ultimately determined that the applicant did not have “a well-founded fear of persecution on account of his real or imputed political opinions” or for any Convention reason.  It followed that it must have rejected the applicant’s claim that he had such a fear as a consequence of making his application for a protection visa in Australia.  There would appear to have been no question of law upon which the Tribunal could have rejected this aspect of the applicant’s claim (and none was suggested).  The Tribunal’s rejection must, therefore, have turned upon findings of fact adverse to the applicant.  These findings were material in the sense that they governed the outcome of the Tribunal’s decision on this ground and ultimately since all grounds had to be determined against the applicant if he were to fail:  cf Singh at 481-2.  For example, the Tribunal might have found that the Kenyan authorities attributed treacherous political opinions to any Kenyan who returned to Kenya after making an unsuccessful asylum application elsewhere; that these authorities would attribute the applicant’s prolonged stay in Australia to his making an application of this kind; and that they would, on account of a political opinion attributed to him, take steps to do him serious harm on his return.  Of course, the Tribunal did not make any such findings.  It made no findings at all on the material questions of fact relevant to the asylum-seeking ground.  This is the gist of the applicant’s complaint. 

48                  The respondent addressed this submission in two ways.  First, he submitted that the Tribunal was under no obligation to produce a transcript or recording of the hearing.  This was, as the respondent ultimately conceded, beside the point.  In this case, the reviewable error, if any, was not the failure to keep a continuous transcript or recording but the failure to make findings on “material questions of fact”. 

49                  Secondly, the respondent submitted that the applicant had failed to adduce sufficient evidence to make out the key elements of this ground.  In particular, the respondent said that there was (a) “[no] material tending to demonstrate that the mere making of an asylum claim was the basis for the risk of persecution” and (b) “no material supporting a finding that the authorities might know of the applicant’s protection visa application”.  (The respondent referred to Schedule 2 of the Regulations, Subclass 051 (Bridging (Protection Visa Applicant)), items 051.711 and 051.712, in support of the proposition that the Regulations did not require the applicant’s passport to contain evidence that he was or had been an applicant for a protection visa.)  As a consequence, so the respondent submitted, the question whether the applicant had a well-founded fear of persecution on returning to Kenya by virtue of his status as an unsuccessful asylum-seeker never “rose to the level of a material or central question requiring determination”.  I also reject this submission. 

50                  As stated earlier, on the basis of Mr Fisher’s notes and his evidence about them, I accept that the applicant gave evidence to the Tribunal on both matters mentioned by the respondent.  I therefore reject the respondent’s submission that there was no material to support a finding in the applicant’s favour.  As noted already, precisely what the applicant said in evidence does not appear because there was a failure to record his evidence and Mr Fisher’s notes are only a partial account.  The applicant’s evidence may have been deficient in significant respects and the Tribunal may have rejected the asylum-seeking ground for this reason.  One cannot say what was in the Tribunal’s deliberations in the absence of any finding on any material question of fact.  Since the applicant gave evidence on these matters, I do not accept the respondent’s submission that there was no material concerning the asylum-seeking ground and, for that reason, the Tribunal was not called on to make any factual findings in conformity with s 430(1)(c).  The applicant’s evidence at the hearing was sufficient to give rise to such an obligation.

51                  It is of little account that it was the Tribunal that first raised the asylum-seeking issue.  This relieved the applicant of the need to do so.  Once the ground was raised distinctly, and the applicant gave evidence that his application gave rise to a well-founded fear of persecution if he were to return to Kenya, then the Tribunal was bound to set out its finding on the questions of fact upon which that ground depended.  If the Tribunal found (as the respondent submitted) that there was no material to support the applicant’s belief that the Kenyan authorities would (or could) learn of his protection visa application, then the Tribunal ought to have said so. 

final observations

52                  This is an unusual case since there is a gap in the transcript at the very point relevant to a ground of reviewable error.  If the transcript (or the recording from which it derives) were complete, the reason for the Tribunal’s failure to mention the asylum-seeking ground of the applicant’s claim would probably be plainer.  The applicant adduced Mr Fisher’s notes into evidence (substantially without opposition).  He succeeds in making out a case of reviewable error largely because of what those notes record.  The gap in the transcript (which is apparent when the transcript is compared to Mr Fisher’s notes) raises the possibility that the Tribunal may have overlooked the asylum-seeking issue in considering its decision and in preparing its reasons.  As the respondent noted there was but about a fortnight between the hearing and the delivery of a decision.  It may be recalled, however, that there is no reference to this issue in the applicant’s written submissions.  The Tribunal would have had no memory prompt in the papers before it unless it had included a reference to the issue in any notes that it may have made during the hearing.  Given the nature and extent of the Tribunal’s involvement in the hearing, it is unlikely that any notes made by it would be complete.  The possibility that the Tribunal overlooked the issue is strengthened by its failure to refer, even briefly, to the asylum-seeking issue in its detailed reasons for decision. 

53                  Section 481(1) of the Act confers a discretion on the Court to make all or any of the orders specified in that subsection, including an order setting aside the decision under review and referring the matter back to the Tribunal for further consideration.  In Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 at 238, Sackville J observed that it would be a proper exercise of discretion to affirm a decision of a Tribunal, notwithstanding that it had erred in law, if the Tribunal’s findings of fact precluded the applicant from satisfying the criteria upon which his or her application depended:  cf also Gu v Minister for Immigration & Multicultural Affairs [1999] FCA 991 at [22] per Mansfield J; Minister for Immigration & Multicultural Affairs v Israelian [1999] FCA 649 at [8]-[12]; Nguyen v Minister for Immigration & Multicultural Affairs (1998) 158 ALR 639 at 647-648; and Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 136. 

54                  This is not a case in which the findings of fact already made by the Tribunal necessarily preclude the applicant from a decision in his favour on the asylum-seeking issue, although they may tend against him.  This is because the findings on material questions of fact relating to this issue have yet to be made; and nothing the Tribunal has yet found makes any critical adverse finding inevitable.  Further, for the reasons already stated, there remains the possibility that the Tribunal overlooked the asylum-seeking issue in considering its decision.  The Court is, therefore, unable to assume that the Tribunal has yet given any consideration to the issue.

55                  In this case, I consider it appropriate to set aside the decision of the Tribunal made on 25 September 1998, affirming the delegate’s decision not to grant the applicant a protection visa, and to refer the matter to which the decision relates to the Tribunal for further consideration.

Associate:

Dated:              16 March 2001