FEDERAL COURT OF AUSTRALIA

SZRCI v Minister for Immigration and Citizenship [2012] FCA 965

THE COURT ORDERS THAT:

1.    The parties are to bring in Short Minutes of Order giving effect to these reasons on or before 11 September 2012.

    Note:    Entry of orders is dealt with in r 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Appellant arrived in Australia by boat as an illegal entrant on 4 November 2010. He was taken to Christmas Island.

2    On 25 January 2011 he made a request for a refugee status assessment and on 7 April 2011 he applied for an Independent Merits Review. He claimed to fear persecution if he were returned to Sri Lanka. That review was undertaken and on 17 December 2011 the Independent Merits Reviewer provided a Statement of Reasons in support of his recommendation that the Appellant not be recognised as a person to whom Australia has protection obligations.

3    Judicial review was sought of that decision in the Federal Magistrates Court. On 19 April 2012 a Federal Magistrate dismissed the application: SZRCI v Minister for Immigration [2012] FMCA 343.

4    The Appellant now appeals from that decision to this Court.

5    A Notice of Appeal was filed on 10 May 2012. An Amended Notice of Appeal was filed on 30 July 2012. To proceed on at least two of the three Grounds raised in that Amended Notice of Appeal the Appellant needs the leave of the Court. An Interlocutory Application was filed by the Appellant on 8 August 2012 seeking (inter alia) leave to amend. Leave to amend the Notice of Appeal to include the first two Grounds of Appeal was opposed by Counsel on behalf of the Respondent Minister.

6    The Appellant was represented by Counsel both before the Federal Magistrate and this Court.

7    It is concluded that leave should be granted to raise proposed Ground 1 but that leave to raise proposed Ground 2 should be refused. The remaining proposed Ground, Ground 3, should be dismissed. The original Notice of Appeal and the Grounds of Appeal it set forth, it should be noted, disclosed no separate reason to interfere with the decision of the Federal Magistrate.

The Grounds of Appeal – As Filed & As Sought to be Amended

8    The Grounds of Appeal, as set forth in the Notice of Appeal filed on 10 May 2012 provided as follows (without alteration):

1.    That there is a jurisdictional error in the Federal Magistrate Courts decision.

2.    The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent’s recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational.

3.    Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed.

9    The Grounds of Appeal contained within the Amended Notice of Appeal, provided as follows:

1.    The Federal Magistrate erred in failing to consider and find that there had been a denial of procedural fairness in relation to country information that, of the many thousands of Tamils returned to Sri Lanka from overseas, the numbers of those harshly treated ‘remain relatively extremely low’.

2.    The Federal Magistrate erred in failing to consider and find that the second respondent:

i.    failed in his obligations as a decision-maker by; and/or

ii.    gave rise to an apprehension of bias because he engaged in

copying and pasting, without amendment, significant segments of his report.

3.    The Federal Magistrate erred in concluding that the second respondent had applied the ‘well-founded’ test for determination of refugee status under s 36(2)(a) of the Migration Act 1958 (Cth).

It was the granting of leave to raise proposed Grounds 1 and 2 which was opposed by Counsel for the Respondent Minister.

10    The Appellant sought leave to amend after becoming aware of the Statement of Reasons provided by the same Independent Merits Reviewer in respect to another male Tamil asylum seeker, SZRFK. The Affidavit filed in support of the Interlocutory Application asserted that the Appellant only became aware of the Statement of Reasons for the recommendation made in respect to SZRFK on 26 July 2012 – after the decision of the Federal Magistrate and after filing the original Notice of Appeal. The Statement of Reasons in relation to SZRFK referred to an advice dated 15 December 2011 provided by the Department of Immigration and Citizenship.

11    The chronological sequence of events – or the sequence in which documents were provided or became available to the Appellant – assumes some relevance, albeit not decisive relevance. That chronology may be summarised as follows:

15 December 2011    The date the Departmental advice was provided.

17 December 2011    The date of the recommendation of the Independent Merits Reviewer in relation to SZRCI (the present appellant).

27 December 2011    The date of the recommendation of the Independent Merits Reviewer in relation to SZRFK.

19 April 2012    The date of decision of the Federal Magistrate in the present proceeding (SZRCI v Minister for Immigration [2012] FMCA 343).

26 July 2012    The date the Appellant becomes aware of the Independent Merits Reviewer’s recommendation in relation to SZRFK.

12    Although there was some suggestion by Counsel for the Appellant that the first Ground of Appeal was properly characterised as a “reframing” of an argument previously put to the Federal Magistrate, the competing submissions as to whether leave should be granted or refused in respect to either or both Grounds 1 and 2 ultimately focussed upon Counsel for the Appellant submitting that:

    the factual basis upon which each of the two Grounds was founded only emerged after the giving of judgment of the Federal Magistrate; and that

    each of the two Grounds were of such merit that leave should be granted.

Counsel for the Respondent Minister, in summary form, maintained that:

    neither Ground had such merit as to otherwise attract the grant of leave to amend; and that

    prejudice would be suffered if leave were to be granted.

Counsel for the Respondent Minister further questioned how a confidential and unredacted copy of the Statement of Reasons in SZRFK’s case came into the possession of the Appellant. But that query may be left to one side. If leave were granted to raise Ground 2, an issue to be explored was the application to the present facts of the decision of the Full Court in Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45, 200 FCR 223.

The Granting of Leave

13    No application for leave to amend the Notice of Appeal was made prior to the Amended Notice of Appeal being filed on 30 July 2012. Nor was any Affidavit then filed in support of any application for leave.

14    Leave is nevertheless required where a “supplementary notice of appeal” has not been filed within 28 days of the filing of a Notice of Appeal: Federal Court Rules 2011 (Cth) r 36.10. That rule provides as follows:

Amendment to notice of appeal

An appellant may, without the Court’s leave, amend a notice of appeal during the period of 28 days after filing the notice of appeal by filing a supplementary notice of appeal in accordance with rule 36.01.

The counterpart provision to r 36.10 was formerly to be found in O 52 r 21 of the now-repealed Federal Court Rules. Order 52, rule 21(3) provided that the Court could “allow a notice of appeal to be amended on such terms and conditions as the Court thinks fit”.

15    An application for leave to amend may be made during the course of a hearing and may be heard concurrently with submissions in support of the proposed new grounds: eg. SZMTJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 486, 109 ALD 242. An application belatedly made may, however, be refused: Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58 at [102]-[104], 185 FCR 9 at 38-39. Keane CJ, Stone and Jagot JJ there rejected an application for leave to amend made during oral argument in reply. It was said that “[Food Channel Network Pty Ltd] should not be granted so late an indulgence unless it was essential to do so in order to prevent a glaring injustice”.

16    It was presumably in recognition of the need to obtain leave that the Interlocutory Application and Affidavit were belatedly filed by the Appellant on 8 August 2012.

17    In the present proceeding, leave is required both to amend the Notice of Appeal and to raise arguments which were not previously advanced before the Federal Magistrate.

18    A party, it may be accepted, is normally “… bound by the conduct of his case”: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483. Particularly in migration cases, there are important reasons why this Court should not become the de facto court of original jurisdiction: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [30] per Lander J. One consideration relevant to confining a party to the manner in which his case has previously been conducted and in refusing leave to raise a fresh argument on appeal emerges where a party claims prejudice because he “… may have conducted his or her case differently in the court below had the new ground been raised at that stage”: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [78], 147 FCR 51 at 68 per Hill J. An instance of this occurs where a party may have been able to meet the fresh argument by the calling of further evidence in the proceeding below: Soliman v University of Technology, Sydney [2009] FCAFC 159 at [5] per Graham, Logan and Flick JJ. See also: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] per Kiefel, Weinberg and Stone JJ.

19    By reason of the prejudice that the Respondent Minister claims he will suffer if leave were granted to raise fresh arguments, the course agreed to by the parties was to only hear the Interlocutory Application to raise proposed Grounds 1 and 2 and to hear the appeal in respect to proposed Ground 3. If leave were granted to raise either proposed Ground 1 or 2, it was contemplated that a further hearing would be required.

Ground One – A Denial of Procedural Fairness?

20    The first Ground of Appeal set forth in the Amended Notice of Appeal asserts that the Federal Magistrate erred “in failing to consider and find that there had been a denial of procedural fairness in relation to country information …”. The argument turned on the consequence of a failure to disclose the Departmental advice – assuming that advice was available to the Independent Merits Reviewer.

21    The Appellant’s written Outline of Submissions maintains that this proposed Ground has simply “reframed” a Ground advanced before the Federal Magistrate; whereas Counsel for the Respondent Minister maintains that it is a “new ground”. The Federal Magistrate, the First Respondent contends, did not err in “failing to consider” material because he was never asked to consider the material. The submission that proposed Ground 1 is merely a “reframing” of a Ground advanced before the Federal Magistrate is rejected. The simple fact is that the Appellant was not aware of the 15 December 2011 Departmental advice at the time of the hearing before the Federal Magistrate and advanced no submission in respect to that advice. An argument as to the basis upon which the recommendation of the Independent Merits Reviewer was founded may have been raised for consideration; but the argument that there was a specific advice which was in existence and which was not disclosed was an argument that was not raised for resolution.

22    Leave is thus required if the Appellant is to be permitted to advance an argument that he was denied procedural fairness by reason of any non-disclosure of the Departmental advice.

23    The non-disclosure of that advice, the Appellant submits, emerges from the Statement of Reasons of the Independent Merits Reviewer which provided in relevant part as follows:

In considering whether there is a real chance the claimant, should he return, [would] suffer serious harm from any interrogation or investigation by the Sri Lankan authorities, the reviewer has taken into consideration that many thousands of Tamils have returned from overseas (see 2011 UK Home Office Sri Lanka Report, 25.36, cited above at para 48) and that while there are occasional reports of such people being interrogated and detained and indeed that some have been harshly treated, their numbers remain relatively extremely low.

The “Findings and Reasons” contained within the Statement of Reasons provided by the same Independent Merits Reviewer in respect to SZRFK went on to contain the following additional reference:

… their numbers remain relatively extremely low, as reflected in the advice from DIAC at paragraph 40 above.

Paragraph [40], in turn, identifies the advice as that “provided on the 15 December 2011”.

24    Notwithstanding the fact that the Departmental advice pre-dated the recommendation made by the Independent Merits Reviewer in the present proceeding, it is by no means apparent that that Reviewer had that advice to hand when he made his recommendation two days later. It may well be that the Reviewer only became aware of the advice after he had provided his recommendation in the present proceeding and prior to making his recommendation in SZRFK. It is this factual uncertainty that Counsel for the Respondent Minister relies upon. Had the argument been raised at an earlier stage, the issue as to what materials were in fact available to the Independent Merits Reviewer could have been explored and explained.

25    Nevertheless, any prejudice to the Respondent Minister is within a narrow compass – the Independent Merits Reviewer either did or did not have the 15 December 2011 advice available to him when he made his recommendation in the present proceeding. Or it may be that that fact cannot be resolved one way or the other. Notwithstanding the prejudice that would be occasioned (which is acknowledged by the Appellant), it is nevertheless concluded that leave should be granted to the Appellant to amend his Notice of Appeal to raise proposed Ground 1 and rely upon an argument not advanced before the Federal Magistrate.

26    An argument that the Appellant may have been denied procedural fairness by reason of the non-disclosure of a Departmental advice which was at least in existence as at the date of the recommendation in the present proceeding is not an argument without some merit.

Copying and Pasting – A Growing Trend?

27    Different considerations, however, arise in respect to proposed Ground 2.

28    There has been a disturbing increase in the number of appeals brought before this Court which expose an Independent Merits Reviewer “copying” extracts from an earlier Statement of Reasons prepared in a different case and “pasting” those extracts into subsequent decisions. In such cases legitimate questions may arise as to whether (for example):

    genuine and realistic consideration, let alone independent consideration, was in fact given to the claims advanced by the individual claimant seeking protection; and

    the extent of such “copying and pasting” is sufficient to give rise to a reasonable apprehension of bias or prejudgment.

Whether the Independent Merits Reviewer has in fact discharged other responsibilities as have been entrusted to him may presently be left to one side.

29    Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45, 200 FCR 223 was one such decision. In that case Rares and Jagot JJ found that “the reviewer had turned his mind to the applicant’s individual circumstances”: at [48]. They further found that the applicant had “… not put to the reviewer anything new or different on the generic claims from what had been put to the reviewer on behalf of the other nine claimants”: at [49]. Their Honours concluded that “the reviewer brought to bear upon his task an impartial mind that was open to persuasion, not only with respect to the applicant’s specific claims but also the generic claims”: at [50]. No reasonable apprehension of bias, their Honours concluded, had been made out.

30    This case, it is respectfully concluded, may present facts very different to those in SZQHH.

31    In the present proceeding Counsel for the Appellant sought to compare the Statement of Reasons provided by the same Independent Merits Reviewer in SZRFK’s case with the Statement of Reasons prepared in respect to the present Appellant – both of which were drafted by the same Reviewer. The report in that case was provided 10 days later than the report in the present proceeding. The Appellant submits that the comparison of the two documents reveals that:

    paras [1] to [10] are the same in each set of reasons (subject to some date changes);

    paras [29] to [39] in SZRFK’s Statement of Reasons are the same as paras [34] to [48] in SZRCI’s Statement of Reasons;

    paras [41] and [55] to [58] in SZRFK’s reasons are the same as paras [49], [60] and [63] to [66] in SZRCI’s reasons (with the exception of variations to the respective claimants’ names); and

    paras [44], [45], [47], [49], [51] and [52] in SZRFK’s Statement of Reasons are largely the same as paras [52], [53], [56], [58] and [59] in SZRCI’s Statement of Reasons.

As the Appellant submitted, “[p]ut another way, with the exception of the statement of each claimant (which are directly copied into the report) and a summary of each interview, there are only four paragraphs in the … report for the appellant (paragraphs 54, 55, 57 and 61) that are entirely unique to that report as compared with the second respondent’s report in SZRFK”.

32    Such a comparison is much the same as that undertaken in SZQHH. If the comparison had been confined to these similarities alone, the same conclusion may have been reached as that reached by Rares and Jagot JJ in SZQHH..

33    That which may have served to distinguish the present case from SZQHH, however, may have been the manner in which the Independent Merits Reviewer dealt with the asserted differences between the facts in SZRFK and the facts in the present proceeding. Those differences were the fact that SZRFK (unlike the present Appellant):

    had no siblings in the LTTE;

    did not flee Sri Lanka to avoid conscription;

    did not have family who were subject to “ongoing punishment” and who lived in an LTTE area; and

    could account for his whereabouts for the last five years.

Notwithstanding these asserted differences, the Independent Merits Reviewer concluded in both reports that:

… the reviewer finds nothing in the particular circumstances of the claimant such that his situation would give rise to there being a real chance he would face such serious harm for reasons of his Tamil ethnicity or his political opinion, imputed or otherwise. The reviewer accepts that Tamils are a minority population in Sri Lanka and face discriminatory practices in many areas of life. However, the claimant has not presented evidence that he has suffered in any way related to such discriminatory practices and the reviewer finds nothing in the particular circumstances of the claimant such that his situation would give rise to there being a real chance he would face a level of discrimination such that it would amount to persecution for reasons of his Tamil ethnicity.

Any differences in the factual circumstances of the two claimants and how this may have resulted in varying outcomes was not otherwise addressed or resolved.

34    Although considerable reservation is still expressed in respect to the notion that an administrative decision-maker may take substantial extracts of findings and reasons from prior decisions and insert those extracts unchanged into subsequent decisions (SZQHH (supra) at [102]), the present proceeding may have taken that process one step further. Where there are differences between the facts and circumstances of a particular claimant, and where those differences are not adverted to or addressed by the Independent Merits Reviewer, it may be open to conclude that there has been a failure to consider those facts and circumstances or that there is a reasonable apprehension of such prejudgment that the same recommendation is going to be made irrespective of the facts and circumstances.

35    Notwithstanding the considerable merit that this second proposed Ground of Appeal may otherwise have had, it is nevertheless concluded that leave to raise this additional ground should be refused primarily because of two reasons, namely:

    any question as to “copying and pasting” of findings or reasons would give rise to a question as to whether the decision made in respect to SZRFK was open to review, rather than the present decision being open to challenge – the Statement of Reasons in the present proceeding preceding those provided in SZRFK. Any impermissible “copying and pasting” that may have occurred was thus “copying” from the present recommendation of the Independent Merits Reviewer and “pasting” that extract into his subsequent recommendation in respect to SZRFK. Thus, any question as to “copying and pasting” of findings or reasons would give rise to a question as to whether the decision in SZRFK’s case was open to review, rather than the present decision being open to challenge; and

    the very real prospect of prejudice to the Respondent Minister if leave were granted to now raise the question. Had the argument been raised at an earlier opportunity, the Respondent Minister would have been able to explore the similarities and differences between the two claims. Although the prejudice to the First Respondent was not such as to preclude leave being now granted to raise the first proposed Ground of Appeal, it is respectfully concluded that this second proposed Ground of Appeal may have exposed the Respondent Minister to possibly greater prejudice.

It is the combination of these two reasons which warrants the discretion to grant leave to raise this further Ground being exercised adversely to the Appellant It may be that an argument could be developed in a future case that a series of findings in respect to a number of different claimants were resolved in a “single sittings” – notwithstanding the fact that each recommendation in respect to each individual claimants bears a different date and was provided to the Minister over a limited period of time. But the Appellant did not seek to raise any such argument in the present proceeding. Even if such an argument had been raised, leave to amend would have been refused. Such an argument, if it were to be advanced, would ordinarily have to be raised at the outset and not on appeal.

Well-founded Fear of Persecution

36    One of the criteria for a protection visa is that an applicant is “a non-citizen in Australia in respect to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”: Migration Act 1958 (Cth) s 36(2)(a).

37    Article 1A(2) of the Convention provides as follows:

Article 1

DEFINITION OF THE TERM “REFUGEE”

A.     For the purposes of the present Convention, the term “refugee” shall apply to any person who:

…

(2)     As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

38    The meaning of the phrase “a well-founded fear of being persecuted” is now settled.

39    A person may have a “well-founded fear of being persecuted” even though the possibility of persecution occurring is well below 50%: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 per Mason CJ, at 398 per Dawson J and at 429 per McHugh J. The decision of a delegate refusing a claim to refugee status was there held to be so unreasonable that no reasonable person could have reached it. In so deciding, Mason CJ observed:

… When the Convention makes provision for the recognition of the refugee status of a person who is, owing to a well-founded fear of being persecuted for a Convention reason, unwilling to return to the country of his nationality, the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns … : (1989) 169 CLR at 388.

McHugh J, after reviewing both decisions and commentaries, observed:

The decisions in Sivakumaran [[1988] AC 958] and Cardoza-Fonseca [(1987) 480 US 421)] also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a farfetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as “well-founded” for the purpose of the Convention and Protocol: (1989) 169 CLR at 429.

A claimant need not therefore positively prove that he will be persecuted or even that such an event is probable: SZMKK v Minister for Immigration and Citizenship [2010] FCA 436 at [25], 114 ALD 634 at 641 per Barker J. A remote chance is not a “real chance”: SZQGN v Minister for Immigration and Citizenship [2012] FCA 436 at [4], 127 ALD 299 at 300 per Katzmann J.

40    The requirement that a fear be “well-founded” adds an objective requirement to the requirement that an applicant must in fact hold such a fear. And for a fear to be “well-founded”, there must be a real substantial basis for it: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-572. Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ there made the following observations in relation to the need for a fear to be “well-founded” and the expression “real chance” as employed by Mason CJ in Chan:

An applicant for refugee status must also establish that his or her fear of persecution for a Convention reason is a "well-founded" fear. This element adds an objective requirement to the requirement that an applicant must in fact hold such a fear. In Chan, Mason CJ said:

“If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.”

In the same case, McHugh J said that a real chance of persecution excluded a far-fetched possibility of persecution but that as little as a 10 per cent chance of persecution may constitute a well-founded fear of persecution.

Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite error.

No doubt in most, perhaps all, cases arising under s 22AA of the Act, the application of the real chance test, properly understood as the clarification of the phrase “well-founded”, leads to the same result as a direct application of that phrase. Wu Shan Liang is an example. Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term. … A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term “real chance” not as epexegetic of “well-founded”, but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.

41    In determining whether there is a “well-founded fear of being persecuted” regard may be had to the presence or absence of past persecution. In Guo Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ went on to further observe:

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. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events … : (1997) 191 CLR at 575.

In many cases, it has been recognised that “… the primary basis for what is said to be a well-founded fear of future persecution is an account of past persecution”: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 at [4], 216 ALR 1 at 3 per Gleeson CJ. See also: WAAOD v Minister for Immigration and Citizenship [2011] FCA 1044 at [33]-[35], 123 ALD 69 at 73-74 per Gilmour J.

42    To determine whether a claimant has a well-founded fear of being persecuted, the Minister or his delegate must first be satisfied that the claimant has a subjective fear of persecution and then determine objectively whether that fear is well-founded: SZOMU v Minister for Immigration and Citizenship [2011] FCA 140 at [39], 119 ALD 556 at 562 per Lander J.

Persecution – An Absence of Error

43    It was unclear whether Counsel for the Respondent Minister did not oppose the Court resolving proposed Ground 3 because, perhaps, it is much the same as the second Ground in the original Notice of Appeal or because it was a Ground that could be dealt with without any prejudice being claimed. Either way, the Ground was addressed by both parties without objection and should be resolved. To the extent that leave is required to amend the Notice of Appeal to raise the Ground, that leave should be granted.

44    This final Ground focuses upon whether the Independent Merits Reviewer correctly applied the “well-founded” fear of persecution test.

45    Notwithstanding the caution expressed by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Guo, the Independent Merits Reviewer in the present proceeding repeatedly made reference to whether there was a “real chance” of the Appellant suffering harm if he returned to Sri Lanka. Their Honours, it may further be noted, also went on to themselves employ the language of “real chance”: (1997) 191 CLR at 575. Many subsequent decisions of this Court have also employed the same language.

46    When setting forth his “Findings and Reasons” in the Statement of Reasons the Independent Merits Reviewer thus stated (by way of example):

52.    In the light of the independent country evidence set out above and discussed with the claimant, the reviewer accepts that upon return to Sri Lanka, he may well be investigated and even interrogated by the Sri Lankan authorities to determine whether he is considered a security threat. The reviewer accepts that those considered to be linked to the LTTE are considered to have a risk profile. The reviewer has considered the news reports tendered by the claimant in the interview and accepts that the authorities fear those abroad have been LTTE supporters and that they may suspect that the claimant is a failed asylum seeker.

53.    In considering whether there is a real chance the claimant, should he return, suffer serious harm from any interrogation or investigation by the Sri Lankan authorities, the reviewer has taken into consideration that many thousands of Tamils have returned from overseas (see 2011 UK Home Office Sri Lanka Report, 25.36, cited above at paragraph 48) and that while there are occasional reports of such people being interrogated and detained and indeed that some have been harshly treated, their numbers remain relatively extremely low. …

Reference should also be made to the concluding paragraph immediately preceding the recommendation to the Minister which stated:

64.    In conclusion, the reviewer is not satisfied that if the claimant returns to Sri Lanka, he would in the reasonable foreseeable future face a real chance of persecution by reason of his ethnicity or political opinion (real or imputed). The reviewer is not satisfied that if he returns to Sri Lanka he would face a real chance of persecution for reason of membership of a particular social group or for any other Convention reason. The reviewer has also considered the claimant’s circumstances cumulatively, and in the light of the findings made above, finds there is no real chance, that the claimant will suffer serious harm for a Convention reason. The reviewer is not satisfied the claimant satisfies the definition of a refugee as set out in the Refugee Convention.

47    There is, of course, no error necessarily exposed simply because a reference is made in reasons to there being a “real chance” of events occurring. It ultimately remains a question of whether the phrase “well-founded fear of being persecuted” was correctly applied which determines the fate of an application.

48    In the present proceeding it was submitted on behalf of the Appellant that jurisdictional error is exposed “… if the substitute test (‘real chance’) is applied to require a higher standard than the legal test (‘well-founded’)”. Error on the part of the Independent Merits Reviewer is said to be evident in:

    the transcript of an interview with the now-Appellant in which the Independent Merits Reviewer said:

The test, I have to think is, if there is a real chance that will happen to you. There is always a chance something can happen. There’s a chance I could be hit by a car this afternoon crossing the road, but in that case I have to think, is there a real chance, and I probably think no, it’s not a real chance, it’s just a possibility.

    the fact that “the positive findings of the Reviewer are only consistent with an ultimate finding that there was a well-founded fear of persecution”; and

    the application of what Counsel for the Appellant characterised as a “rational prosecutor” test.

49    The submissions of the Appellant are rejected.

50    In relation to this Ground, it is not considered that any error is discernible in the Statement of Reasons of the Independent Merits Reviewer or, more importantly, in the reasons of the Federal Magistrate. Although repeated reference was made to there being a “real chance” of events happening, the reasons (when read in context) reveal an assessment being made as to the basis upon which the Appellant was expressing his fears and the basis upon which it was concluded that he would not suffer persecution if he returned to Sri Lanka. The “positive findings” made by the Independent Merits Reviewer may well have led him to a different conclusion; but it can by no means be said that only one conclusion was open to him on the facts. In making his recommendation, it is not considered that any “substitute test” was “applied to require a higher standard than the legal test”.

51    Although it may also be accepted that a claimant may seek to make out a case of jurisdictional error by reference to statements made during an interview process, it is the reasons and findings of fact which should assume greater importance when engaging in judicial review. It is sometimes the case, perhaps frequently the case, that expressions are more clearly considered and set forth in writing than in a verbal exchange. Just as caution should be exercised when reviewing a statement of reasons provided by an administrative decision-maker (see Minister for Immigration and Citizenship v Wu Shan Liang (1996) 185 CLR 259), even greater caution should be expressed in seeking to give too great a prominence to statements made during the course of an interview.

52    Ground 3 is thus rejected.

Conclusions

53    Leave is granted to amend the Notice of Appeal to raise Ground 1 as set forth in the Interlocutory Application. Ground 3 as set forth in the proposed Amended Notice of Appeal is dismissed.

54    The parties are to bring in Short Minutes of Order in respect to the granting of leave to raise proposed Grounds 1 and 3, the refusal of leave to raise proposed Ground 2, the dismissal of Ground 3 and to the further conduct of the appeal. Orders disposing of the appeal will be made once argument has been heard in relation to Ground 1.

55    It is presently contemplated that there should be no order as to costs in respect to the proceeding to date. Both parties have had mixed success thus far. It may be preferable, however, to reserve the question of costs until the final hearing.

The Orders of the Court Are:

1.    The parties are to bring in Short Minutes of Order giving effect to these reasons on or before 11 September 2012.

Associate:

Dated:    5 September 2012