FEDERAL COURT OF AUSTRALIA

SZRHS v Minister for Immigration and Citizenship [2014] FCA 121

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed in default of an agreement.

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

REASONS FOR JUDGMENT

1    This is an appeal from a decision of Federal Magistrate Driver (as he was then known) rendered on 28 September 2012: SZRHS v Minister for Immigration and Citizenship [2012] FMCA 806 (SZRHS).

2    The Federal Circuit Court of Australia Amendment Act 2012 (Cth) came into effect at midnight on 11 April 2013. The Federal Magistrates Court now continues its existence as the Federal Circuit Court of Australia and a Federal Magistrate is now known as a judge of that Court. In preparing these reasons, I have used the terminology of Federal Magistrate, primary judge and Federal Magistrates Court for convenience.

3    The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 2 March 2012. The Tribunal had affirmed a decision made by a delegate (Delegate) of the first respondent (Minister) on 6 September 2011 to refuse to grant Protection (Class XA) visas (protection visas) to the appellant (husband) and his family members comprising his wife and two children born in Australia.

4    This appeal is made only by the husband, who is an Indonesian citizen who arrived in Australia on 2 May 2009 on a student visa. His wife had arrived in Australia on a student visa on 15 July 2008. The application for the protection visas was made on 9 June 2011. The husband’s claims for protection relate to his activities in revealing financial corruption by government officials in a Regency (local area) in Indonesia in 2004; he says that he is well known as one of the “Team 7” for revealing the corruption; he was under constant pressure and threats and his family’s lives were in danger; he fears that he will be killed because of the corruption he revealed if he returns to Indonesia. He says he has lost his employment and his family is in disarray; he fears for their psychological wellbeing.

5    Both the Minister and the husband were represented by counsel at the hearing of argument on the appeal and made written submissions.

Background

6    The claims made by the husband and wife to the Department as well as their application history are summarised below.

7    The husband and wife are Indonesian nationals. Between 1986 and 2002, the husband was employed in the military; from 1998 to 2006 he was a village head; and from 2007 to 2009 he was employed as an advocate/lawyer for Legal Aid. His highest educational qualification is a Master of Laws degree completed in Indonesia between 2004 and 2006. The wife’s highest educational qualification is a Bachelor of Education degree which she obtained between 2002 and 2007 and she was employed at a village school in 2007 and 2008. The protection visa application indicated that the husband and wife were married in 1994 and he lived in one location in Java during 1994-1997 and in a different location in Java during 1997-2009. The husband and wife have five children who live in Indonesia and were born there between 1995 and 2006. This is in addition to the two children who were born in Australia, who are included in the visa application.

8    In March 2004 the husband learned that the Regency would be given a tax refund to be divided among 248 villages of which the husband’s village was one. With another village head, he approached officers of the Regency administration and learned that the money was being dealt with corruptly. They were offered a bribe. After further investigation they discovered more evidence of corrupt practices by officials in the Regency. A meeting was held at his home with other village heads to discuss what action to take. In early April 2004 a group of them travelled to Jakarta and spoke with the Department of Finance and the Independent Corruption Watch. On 7 April 2004 they were received by the Attorney General’s Department in Jakarta and the Attorney General. They were told that this was the first time that anyone had dared to report corruption in that Regency.

9    When he returned to his village, news of these activities had become known and the next day his wife received a threatening phone call telling her to forbid her husband from being involved in revealing the corruption if he wanted to stay alive. The wife says that she received three threatening phone calls in 2004. The husband took his wife and children to his parents’ home three kilometres away from where he and his wife lived.

10    In mid April 2004, the husband and his colleagues went to the regional Attorney General’s office where he produced a letter from the Director of Investigations at the national Attorney General’s office with his preliminary evidence about the corruption. Investigations were then commenced.

11    While the case was being investigated, the husband continually received threats, anonymous calls and intimidation. He requested legal and physical protection but the Attorney General was unable to give him physical protection due to limited personnel. The colleagues who went with him to Jakarta faced similar problems; one of them had a Molotov cocktail thrown at his home. The husband became worried and did not feel free to go to work. Eventually he decided to move his family to his parents-in-law’s home, in another place. On one occasion five people with sharp instruments came to the husband’s office in a vehicle and shouted rudely to tell him to stop the corruption case. Villagers assisted the husband and the rowdy people ran away after damaging furniture. On another occasion the Regent and his staff came looking for the husband at his office but he was not there because he rarely went to the office any more.

12    He was interviewed on the radio and by a journalist from one of the mass media organisations.

13    In June 2004 the husband was dissatisfied with progress in the case and went with his colleagues to the East Java Attorney General’s office; the Attorney General sent a car to collect the husband out of concern for his safety.

14    The Regent and his staff came looking for the husband in the office he used as the village head. The husband was not there because he rarely went to his office anymore.

15    In August 2004 the husband was approached at his home by the head of finance in the Regency. Another village head was with the husband at the time (that village head has since disappeared). The head of finance asked the husband to stop his activities and promised money but the husband refused. Villagers remained outside to be on hand to help should it be necessary. The husband refused an invitation to the Regent’s office for fear of his life.

16    In September 2004 the Regent was summoned to the Public Prosecutor’s office to answer questions and that afternoon he was detained in prison. The Regent’s supporters were angry. The Regent is part of Megawati Sukarnoputri’s party, the PDI (Partai Demokasi Indonesia).

17    The husband did not go home and moved around to try to keep safe. His colleague who was also a village head did the same thing. The husband stayed in a number of different locations until the end of his term as village head in early 2006. He monitored developments as one by one the people involved were detained. After that the applicant worked in a legal office. One of the people who said they were from the Regent’s family came to his office and was told by the receptionist that the husband no longer worked there. After that time the husband stopped working because he did not feel calm and was always anxious; he joined his wife and they later moved.

18    The wife said that she and her husband did not trust the police. As she was pregnant, they thought it was best for her to leave Indonesia. They considered Malaysia or other countries in Asia but thought them too politically unstable. In July 2007, the wife made an application to go to the United States to study (she says because she had a friend there) but it was rejected.

19    On 2 July 2008, the wife was granted a student visa valid until 20 October 2008 and she arrived in Australia on 15 July 2008; she was then three months pregnant. While his wife was in Australia, the husband moved around and could not work. On 16 April 2009, the husband was granted a student visa as a dependant of his spouse and arrived in Australia on 2 May 2009.

20    On 8 September 2010, the husband left Australia for Indonesia, returning to Australia on 23 October 2010. He went to Indonesia secretly and maintained a low profile while he was there; he went to see if it was safe for the family to return. However, he found that his life and that of his children in Indonesia continued to be at risk of harm. He was advised by family, friends and the village head that it was not safe for him to remain because his enemies continued to make enquiries about him and his whereabouts. Two of the people who had been jailed were about to be released and he feared for his safety because they would harm him if they could locate him. His information was that these people had reactivated the resources of the party network to do so. He had to leave his five children again as he did not have the financial resources required to bring them to Australia.

21    On 8 October 2008, the wife applied for a further student visa which was granted on 13 October 2008, which remained in effect to 1 December 2008. On 26 November 2008 she applied for a third student visa which was granted on 1 December 2008 and remained in effect until 15 March 2011. At that point she became unlawful. On 17 March 2011, the wife applied for a fourth student visa (with her husband as a dependant) and the husband, wife and first child born in Australia were granted bridging visas. Each of these applications was made while the wife was in Australia.

22    On 9 June 2011 the husband and wife lodged protection visa applications and the husband, wife and first child born in Australia were granted bridging visas. The husband’s application for a protection visa was supported by a statement of the husband setting out his claims and by a “Report on the Situation of [husband]” by Dr Paul White, a research and policy officer of the Liverpool Migrant Research Centre, dated 12 May 2011. The wife’s application was supported by her statement of claims.

23    On 15 August 2011, the fourth student visa application was withdrawn. On 16 August 2011, they were interviewed by the Delegate in relation to their applications for protection visas.

24    The husband explained his delay in applying for a protection visa on the basis that he had no knowledge of Australian immigration law and so he did not know that the option was available to him. His specialty is criminal law and he knew very little about other legal disciplines and nothing about Australian law. His delay was also because he had been looking for the right person to assist; he only recently met Dr Paul White, a political scientist who was capable of completing the necessary research and writing a submission in English on his behalf. He also wanted to locate a legal firm willing to act on his behalf pro bono because he does not have the financial resources to pay for legal representation. As a lawyer, he was aware of the benefit of legal representation. The wife said that she delayed because she was fearful of approaching the Department of Immigration and Citizenship because she had been advised by one of her teachers in Australia not to approach the Department because they might cancel her student visa.

The Tribunal

25    The Tribunal’s decision record of 2 March 2012 sets out a detailed recital of the materials to which it had access in the review.

26    As usual, the Tribunal had the Department’s file and the material referred to in the Delegate’s record of decision. Details of the husband and wife’s applications for a protection visa are set out at [22]-[33] of the decision record.

27    A summary of the claims for refugee status are set out at [42]-[52]. They include:

(1)     reference to the wife’s statement of 13 August 2011 at [39]-[40];

(2)    a detailed summary (comprising approximately three pages) of a statement by the husband to the Department in relation to “Chronology of the Corruption case in the Regency Government of [named region]” at [41]; and

(3)    a detailed summary of the report by Dr White, which was provided to the Department by the husband at [42]-[53].

28    A summary of the Delegate’s interview with the husband and wife on 16 August 2011 (comprising approximately 7.75 pages) was set out at [54].

29    A summary of a submission made by the husband’s representative to the Department after the interview with the Delegate is set out at [55]-[59]. The submission:

(1)     purports to correct discrepancies in the information provided in written statements and the application form. It then goes on to submit that any remaining discrepancies may be explained as errors of translation or misunderstanding on behalf of the applicants, the translator or Tribunal member and are unintentional;

(2)    explains the high levels of stress suffered by the husband and wife by reason of the process and concern for the welfare of their children both in Indonesia and Australia. The children in Indonesia had been relocated many times, affecting their schooling, and the applicants did not have the financial resources to bring them to Australia;

(3)    states that any inconsistencies must not “be perceived as a lack of “credibility” in the evidence” and asserts that the husband gave consistent evidence to the Delegate;

(4)     asserts that the husband and wife were subject to persecution because the husband belongs to a particular social group of whistle blowers in Indonesia, and clarifies that the husband did not claim to be personally sought by Megawati Sukarnoputri (as the Delegate appeared to misunderstand) but by agents of her political party because he exposed corrupt practices in Indonesia and that his safety would not be improved by relocation within Indonesia;

(5)    in relation to the interview with the Delegate, states that the husband was aware that the leader of the group which had been prosecuted was sentenced to ten years and the secretary for eight years but they were released from jail in July 2011;

(6)    states that the husband moved may times while he was in Indonesia to avoid harm and although he studied from 2004, he did this online and his employer telephoned him when he was required to complete work related activities, and

(7)    states that although seven years had passed since the husband revealed the corruption, the danger had not passed because some of the people who were prosecuted were being released from jail and they will bribe people to locate him and they will pay him back and kill him as a caution to others.

(8)    states that the husband obtained his passport with the help of a friend. He tried everything over a four year period to avoid fleeing Indonesia but he did it as a last resort to avoid real physical harm.

30    The husband’s representative made a submission to the Tribunal dated 20 September 2011 which is summarised at [60]-[62]. It deals with:

(1)    the husband’s concern for their five children in Indonesia because the couple who have been looking after them do not wish to continue to do so even though they have moved into the husband’s property, the sale of which they are now blocking: one child is being held as “security”, one is in boarding school and the other three children are with their grandparents and the husband has discovered they are malnourished;

(2)    complaints about the interview with the Delegate, including its length without a break, an allegation of “bias, incompetence and cultural insensitivity”, that the Delegate “enjoyed his power” and that he was unprepared for the interview. The representative of the husband says she did not complain at the time for fear that it would prejudice the outcome of the application; and

(3)    copies of documentation previously provided to the Department.

31    On 3 November 2011, the husband’s representative provided to the Tribunal a copy of an article which appeared in the Jakarta Globe indicating that Indonesians were not very happy with the performance of their law enforcers or corruption fighters: see [63].

32    The Tribunal summarises the evidence provided at the hearing with the Tribunal on 2 February 2012 attended by the husband and wife and their representative at [64]-[89]. At the end of the hearing the husband was given three weeks to “provide any documentation”.

33    At [90]-[95] the Tribunal summarises a submission dated 2 February 2012 from the husband’s representative which was given to the Tribunal at the conclusion of the hearing. It covered:

(1)    relevant parts of the Migration Act 1958 (Cth) (Migration Act); problems in relying on inconsistencies to make adverse credibility findings; allegations of poor preparation by the Delegate apparent during the interview; repeated claims by the husband to protection on the basis that the husband is a “whistle blower” and fear of harm from the party associated with Megawati Sukarnoputri; evidence of the husband to the Delegate that he constantly moved in Indonesia and was unable to continue employment; and his “passport issues”;

(2)     submissions addressing the husband and wife’s attempts to avoid fleeing Indonesia over a four to five year period; the husband’s choice of student visa for his wife; threats to the wife and children; the husband’s reasons for returning to Indonesia in September 2010; financial constraints on bringing the children to Australia; delay in lodgement of the protection visa application and decisions of the Tribunal on that issue.

(3)    punishment and death of journalists who exposed corruption,

(4)    the distress of the husband and wife at leaving their children in Indonesia and other factors relevant to their desire to return to Indonesia but their inability to do so because of fear that they will be “sought out and killed” by the husband’s opponents and the lack of assistance from Indonesian authorities;

(5)    the Convention on the Rights of the Child; and

(6)    a supplementary report by Dr White dated 13 October 2011 discussing Indonesian power elites, institutionalised corruption and Indonesia’s capacity to protect whistle blowers, newspaper reports on corruption, a Tribunal research response dated 5 September 2006 on whistle blowers in Indonesia and student records about the change of school in 2011 indicating the reason that the children were going to live with grandparents and moving house.

34    At [96]-[103], the Tribunal summarises submissions dated 23 February 2012 provided by the husband’s representative. The submissions contend:

(1)    The Delegate’s decision must be “completely disregarded” due to the fact that the delegate was “unprepared” and only questioned the wife for a short period before “dismissing her claims”. It complains of the Delegate’s mannerisms and “body language” and repeated questioning on various topics. The submission again mentions the representative’s concern which prevented her from complaining at the time lest it prejudice the application.

(2)    In relation to concerns raised by the Tribunal during the hearing about the husband completing his Master of Laws online, there were submissions that university courses have been available online for some time and pointing out that the husband did not claim to be “unique” in that regard. In relation to the issue of the husband “working from home” while being pursued, there were submissions concerning the nature of work which might be undertaken in that way. The submission also pointed out that it would be an error to dismiss the husband’s claims because he was not harmed as that would imply that persecution could only ever take place within shorter periods of time, not over longer periods of time which “of course it does”. It was submitted that the test is “well-founded fear” not “ending occurrence or some other interpolation”.

(3)    A number of documents were submitted as evidence that the husband was the a village head between 1998 and 2006 and “evidence that he engaged in anti-corruption activities”.

35    At [99]-[100], the Tribunal summarises some of the written submissions of 23 February 2012 as follows:

The representative again sets out the real chance test, the fact that applicants should be given the benefit of the doubt; the Tribunal’s jurisdiction; judicial authorities; the way in which the Tribunal should assess credibility. It is submitted that the Tribunal within a “few minutes of the commencement of the questioning, the tone of the Tribunal member was accusatory” and it would seem that “substantial justice and merits” was not the motivating approach. It was also submitted that the Tribunal was “zeroing in” on questions by way of cross examination and adopted a procedure which placed on the applicant an onus of establishing that he was truthful. The Tribunal required the applicant to “prove” that he was the Village Head and “to express doubt as to the claim to have studied law on-line is also suggestive of an application of a standard in breach of jurisdiction. Studying on line is commonplace. It was unremarkable yet it had to be proved”. The representative states that an “assumption of perjury prior to seeing the witness or hearing the evidence is not within jurisdiction”. It is submitted that the applicants’ evidence on oath is “proof”.

It is submitted that the applicants were consistent and credible and should be believed and the applicant returned to Indonesia simply to see whether or not it was safe to live there and this should not be regarded as an indication that he lacks credit. The representative concludes by stating that “it would not be fair for a tribunal to set itself up as an adversary to the applicant. It would ignore the merits to simply find that “the demonstrably desperate and frightened witnesses (the applicant and his wife) lacked credibility”.

36    The Tribunal’s findings and reasons are detailed: [108] to [128] of the decision record. They are summarised at [108]. The Tribunal accepts a number of the claims of the husband and wife:

The Tribunal accepts that the applicant was a village head in Indonesia and also accepts that he was involved to some extent in exposing corruption in the [name] regency, and that this angered the persons who were subsequently charged and their associates. The Tribunal also accepts that the applicant and the applicant wife were threatened in 2004 and persons came to their home and the applicant’s office at that time and that they feared for their safety for a period of time. The Tribunal accepts that this would have been distressing for them at the time as they would undoubtedly also have been fearful for the safety of their young children. The Tribunal is prepared to accept that the applicant wife may have lived with family members following the initial threats due to fears for her and her family’s safety and the applicant may have lived elsewhere for a short period, and that they may have felt that the protection offered by the Indonesian authorities at that time was inadequate.

37    Those parts of the claims that are not accepted are summarised at [108] as follows:

However, the Tribunal does not accept that this continued for the period of time that the applicants claim and does not accept that the applicants left Indonesia due to this fear or that they genuinely fear harm upon their return to Indonesia. In the Tribunal’s view, the applicants have sought to rely on a series of events which occurred almost 8 years ago in an attempt to provide a basis for refugee status in Australia. The Tribunal does not accept that their circumstances in Indonesia, their actions in remaining in Indonesia for several years after 2004, or their actions following their arrival in Australia, are in any way indicative of persons who genuinely feared harm in their own country and fled to Australia for that reason. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

Appeal to this court

38    The notice of appeal to this Court from the decision of the primary judge filed on 19 October 2012 contains 12 grounds. The written submissions and oral argument on behalf of the husband addressed only grounds 1-6. These grounds were conveniently grouped by counsel for the husband into three categories of issues. They are that the primary judge erred in finding that:

(1)     the Tribunal had applied the correct test for “well-founded fear of persecution” and it did not in its reasons impose any requirement that the husband must have suffered physical harm in the past in order to have a well-founded fear of persecution (grounds 1 and 2);

(2)     the Tribunal had not fallen into jurisdictional error because its decision was not “irrational, illogical and not based on findings or inferences of fact supported by logical grounds” as alleged (grounds 3, 5 and 6); and

(3)    the Tribunal had not placed an onus on the husband to prove his case and had not denied him procedural fairness for that reason (ground 4).

InCorrect test?: grounds 1 and 2

39    The first two grounds of the appeal are:

1.    The Court fell into error when it declined to find that the Refugee Review Tribunal had failed to apply a correct test at law in determining whether the Appellant had a well-founded fear of persecution.

2.    The Federal Magistrate erred by finding that “The Tribunal did not in its reasons impose any requirement that the applicant must have suffered physical harm in the past in order to have a well-founded fear of persecution”: paragraph [22] of the Reasons for Decision.

40    The passage of the primary judge’s reasons complained of is [22]:

The applicant contends that the Tribunal erred in requiring evidence of physical harm having been suffered by the applicant in the past as a condition of establishing a well-founded fear of future persecution. There is, however, no substance to this ground of review. First, the Tribunal can be taken to have understood the test to be applied [9]. Secondly, the assertion in this ground misrepresents the Tribunal’s reasoning. The Tribunal did not in its reasons impose any requirement that the applicant must have suffered physical harm in the past in order to have a well-founded fear of future persecution. Rather, on a fair reading as a whole, the Tribunal reasoned that the applicant had no reason to fear harm from those he had exposed as corrupt in 2004 because, notwithstanding threats made against the applicant, he was not in fact harmed, the process of the law had been applied against the corrupt officials in Indonesia and some seven years had passed by the time the Tribunal came to consider the issues. The Tribunal reasoned that the applicant would have less cause now and in the future to fear harm from those he had exposed than in 2004. He had not been harmed in the past and that fact provided the Tribunal with confidence that he would not be harmed in the future.

41    A criterion for the grant of a protection visa under s 36 of the Migration Act is that the applicant is a “non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol” (s 36(2)(a)). Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol applies to 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…

42    Footnote [9] in [22] of SZRHS referred back to [17] of the Tribunal’s reasons which forms part of the Tribunal’s standard explanation of the key elements of the Convention definition of a person to whom Australia owes protection obligations. It is in these terms:

Fourth, an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or substantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

Submissions

43    The husband submits that while the Tribunal’s reasons addressed a range of factors, the primary factor in the Tribunal’s rejection of his claim to a well-founded fear of persecution was the fact that neither the husband nor any member of his family had suffered actual harm at any time since the husband revealed official corruption in 2004. The husband also submits that the Tribunal failed adequately to take into account that modifications in the behaviour of the husband and wife after 2004 in relocating the family, studying and working remotely, applying for a US visa in 2007 and ultimately leaving Indonesia in 2008 and 2009 were made in order to avoid feared harm as a result of exposing corrupt government officials. The husband contends that the Tribunal concluded that because there was no actual harm, there was no well-founded fear of persecution and relies on [69]-[70], [114] and [122] of the Tribunal’s decision record. Paragraphs [69]-[70] record questions and answers at the hearing and paragraphs [114] and [122] record findings,

44    The husband cites well settled propositions in support of this argument based on the decision of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan). These are substantially to the effect of [17] of the Tribunal’s reasons set out at [42] above. The husband also submits that the absence of actual harm does not mean that there cannot be a fear of persecution: Chan per Toohey J at 406. He submits that the Convention looks to the future: what has happened in the past does not determine whether a person is a refugee for the purposes of the Convention; in determining whether there is a well-founded fear of persecution, the past is a “very important” guide as to what may happen, but that is all: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 per McHugh J at [74]. The husband also relied on the dicta of McHugh and Kirby JJ in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [43]:

… The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many — perhaps the majority of — cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

45    While recognising that the Convention poses a forward looking test, the Minister submits that the husband’s arguments fail to address that it is also well-settled law that past events may be a guide to the future: Minister for Immigrations and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 574-575:

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.

46    Counsel for the husband did not cavil with much of the Tribunal’s fact finding, but did cavil with the Tribunal’s conclusions, including those in bold at [58]-[59] below, suggesting that they were illogical and not supported by the evidence; counsel acknowledged that there was some cross over in the grounds of complaint. He submitted that the Tribunal misapplied the test of “well-founded fear of persecution” by requiring as a precondition evidence of past harm.

Consideration

47    It was appropriate for the Tribunal to consider the issue of whether harm had actually occurred. It clearly adds weight to a claim to fear persecution in the future if harm has already been inflicted, although it is also true that risk of future persecution cannot be excluded by reason only that harm was not inflicted in the past. In determining the likelihood of future harm, whether there is a “real chance” of such harm, it is neither irrational nor inappropriate for the Tribunal to consider the opportunities anyone motivated to cause harm had, in terms both of the ease of access to the husband and members of his family and the period in which those opportunities might arise.

48    The Tribunal’s reasoning did not rely only on the absence of physical harm; it also relied on other factors as being inconsistent with a fear of harm after the immediate events of 2004. Those factors include:

(1)     The period in which the husband and his family remained in Indonesia following the events in 2004. The Tribunal considered that such a professional couple would have been able to make efforts to leave considerably earlier than 2008/2009 (recognising that the wife attempted to get a student visa for the US in 2007) if they had genuine fear and it noted the orderly departure on student visas in 2008 and 2009. It did not accept that this orderly departure was necessitated by the fact that they had five children;

(2)     That both husband and wife were able to maintain employment and study during the period from 2004: he as village head until early in 2006 and then working in legal aid while obtaining a Master of Laws degree, she completing a Bachelor of Education, then being employed or volunteering as a teacher in a village school. The Tribunal found it “highly lacking in credibility” that these things could have been achieved by online education and facilitation by employers as claimed. The Tribunal was “strongly of the view” that these claims were manufactured “in an attempt to overcome the fact that their circumstances in Indonesia prior to their departure were in no way indicative of persons who were being sought by their persecutors”;

(3)     The length of delay (about three years for the wife and two years for the husband) in submitting applications for a protection visa after they arrived in Australia. The Tribunal noted that the explanations for this were that they did not know about protection visas and only found out about them when they met the “right person”, Dr White, their English is not good, they were fearful of telling people in Australia of their position for fear that they were associated with the PDI and did not trust people, and although the husband is a lawyer, his expertise is criminal and civil law, not protection visas. The Tribunal did not accept these explanations because the couple are tertiary educated and the Tribunal did not accept that they would not have sought assistance or made inquiries about protection visas at the earliest opportunity if they genuinely feared harm given that they had five remaining children in Indonesia and the claimed threats continued. This inconsistency led the Tribunal to consider that the claims to fear harm were manufactured for the purposes of the application for protection; and

(4)     The husband’s travel to Indonesia in September 2010 for five weeks before returning to Australia. The Tribunal accepted that the husband wished to see his children and assess their wellbeing but if he had such concerns about threats that he kept moving his family, the Tribunal did not accept that he would have returned to Indonesia even for a short time rather than seeking information from friends and family. The Tribunal considered that the evidence is indicative that the claims are manufactured as a basis for claiming protection.

49    I consider that it was open to the Tribunal to take the view that these factors were inconsistent with the claimed fear of harm and were a basis for doubting the credibility of the husband and wife.

50    I accept the Minister’s submission that the Tribunal did not ignore the fact that the husband and his family modified their behaviour. The Tribunal accepted that the husband and his family modified their behaviour in the immediate events of 2004. It rejected their evidence that they modified their behaviour after 2004 because it is inconsistent with the couple obtaining tertiary qualifications and having the claimed employment in that time. This finding was open to the Tribunal.

51    I accept the logic of the husband’s argument that someone recently released from jail (in 2011) may be motivated to take revenge even (or perhaps especially) after a period of five or so years of incarceration. However, the point is well made by the Tribunal that the husband argued that he and his family were at all times at risk that action to harm them would be taken by associates of those involved in the corruption case. That is a risk of long exposure without apparent incident after 2004. The children, who might be assumed to be vulnerable targets both before and after their parents left for Australia, were also exposed to this risk without apparent incident over a long period. The Tribunal was entitled to take these factors into account in evaluating the claimed risk and determining the likelihood of the feared harm eventuating: that is an essential element of an assessment of whether the claimed fear is well-founded and their process of reasoning is logical even if others may reach a different conclusion.

52    Last, while the Tribunal accepted that the husband and wife have concerns about the welfare of their children in Indonesia and the dispute with the couple who had initially been responsible for them, the Tribunal was correct to observe that those concerns are not based on a Convention reason for the grant of a protection visa.

53    Credibility of witnesses is a matter for the Tribunal “par excellence” Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. Further, the reasons for the decision under review are not to be “construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 271-272; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. The husband’s submissions invite such a review and do not reflect the totality of the Tribunal’s reasoning.

54    For all of these reasons I reject these grounds and find that the primary judge did not err in rejecting the husband’s argument that the Tribunal required evidence that physical harm had been suffered by the husband and his family in the past as a condition of establishing a well-founded fear of future persecution.

Illogicality/Findings of fabrication of evidence – grounds 3, 5 and 6

55    Grounds 3, 5 and 6 are:

3.    The Federal Magistrate erred by finding that “the fact that the applicant and his family had not been killed or injured was not a matter that the Tribunal held to discredit the applicant in and of itself …” at paragraph [29] of the Reasons for Decision - in circumstances where the Tribunal used that matter to make a positive finding that the applicants had “manufactured their claims” and “claims to feared harm are fabricated” (at [114] and [121] of the Tribunal’s reasons respectively).

….

5.    The Federal Magistrate erred by finding that “it is patently wrong to say that the Tribunal had no rational basis for finding that the applicant and his wife had fabricated their evidence”: at paragraph [33] of the Reasons for Decision.

6.    The Federal Magistrate erred by relying on the decision of Selvadurai v Minister for Immigration (1994) 34 ALD 347 at [7] as part of his Honour’s finding that it was open to the Tribunal to find that the applicant’s [sic] had manufactured their claims in circumstances where that decision was only concerned with a Tribunal not accepting evidence, rather than making positive findings of fabrication against an applicant.

56    Paragraph [29] of SZRHS is as follows (footnotes omitted, other than footnote 18 which has been inserted into the text):

As noted above, although this ground focuses on s.420 and mounts an attack on the fact-finding process adopted by the Tribunal, the applicant’s counsel conceded that a breach of s.420 does not of itself constitute jurisdictional error. In spite of a recent decision of a majority of the Full Federal Court to the contrary, the preponderance of authority in the Federal Court and in the High Court is to the effect that s.420 does not set any boundaries on the jurisdiction of the Tribunal. It is not necessary for me to reconcile those authorities because, in any event, the particulars provided in respect of this ground do not establish that the Tribunal was anything other than fair and just or that it did not act according to substantial justice and the merits of the case: first, the Tribunal clearly had regard to the evidence before it; secondly it was entitled to make findings inconsistent with the evidence of the applicant and his wife [(18) Selvadurai v Minister for Immigration op cit at 348]; thirdly, the Tribunal did not simply declare that it did not believe the applicant or his wife but, rather, gave detailed reasons for its factual findings; and finally, the fact that the applicant and his family have not been killed or injured was not a matter that the Tribunal held to discredit the applicant and his wife in and of itself; rather, as explained above, it was a factor that, together with the long delay in the applicant leaving Indonesia, led the Tribunal to find that he and his wife did not have a genuine fear of persecution.

57    Paragraph [33] of SZRHS is as follows (footnotes omitted):

The applicant also contends that the Tribunal’s reasoning that the applicant and his wife had fabricated some of their evidence has no rational or logical foundation. The first difficulty with the ground as so expressed is that judicial review on the ground of the irrationality does not attach to particular findings of fact but rather, to the decision itself: Minister for Immigration v SZMDS. The second difficulty is that it is patently wrong to say that the Tribunal had no rational basis for finding that the applicant and his wife had fabricated their evidence. The Tribunal explained the basis for this finding over seven carefully reasoned pages of its decision. Part of the Tribunal's reasons, and clearly probative of its conclusion, was the fact that the applicant and his wife had remained in Indonesia, unharmed, for five years in the face of the threats that they claim continued to be made and, when they had finally, on their version, escaped to Australia, took another three years to make any claim for protection from Australia.

58    Paragraphs [114] and [121] of the Tribunal’s decision record are as follows (emphasis added):

[114] It has been submitted it would be an “error” to dismiss the applicant’s claims simply because he was not harmed as this would imply that persecution only ever takes place within shorter periods of time and does not occur over lengthy periods of time which “of course it does”. It has also been submitted in this regard that the test is “well founded fear” not “ending occurrence or some other interpolation”. The Tribunal considers this submission to be nonsensical and indicative of a lack of understanding of the relevant provisions. In the Tribunal’s view, had anyone been motivated to harm the applicant and the applicant wife, even having regard to their claims to have only gone to work occasionally or to have moved to different locations or to have worked from home, that they could nevertheless been [sic] easily been located at different times at their places of employment or at their tertiary institutions at some time in the 4/5 years that they remained in Indonesia. The Tribunal further considers that had anyone been even slightly motivated to harm his children that they could have [sic] easily have discovered their whereabouts or the school that they attended in the 7 years since the incident occurred. The applicants have not claimed that any harm has in fact been inflicted upon themselves or their children. In the Tribunal’s view, this is due to the fact that no-one is seeking to harm them and these claims have been manufactured in an attempt to provide a basis for refugee status in Australia.

…

[121] The Tribunal does not accept, therefore, that the applicants have been the subject of threats after 2004 or that any action was taken by any persons after that time. Whilst the Tribunal has accepted that threats were made in 2004 and that persons may have come to the applicant’s office and his home in 2004 and that this would have been distressing for the applicant and his wife, the Tribunal does not accept, for the reasons set out above, that this was ongoing or that there were any further incidents or ongoing harm that extended until 2007 and is ongoing or that the applicants were in hiding for any substantial period of time. The Tribunal accepts that their children may have changed schools and lived with different persons given that their parents have been in Australia for several years, but does not accept that this is because they have to move due to threats and a fear of harm. The Tribunal also accepts that the applicants are concerned about the welfare and safety of their children and are having a dispute with a couple who were initially responsible for caring for their children, but the Tribunal does not accept that this has any connection to the claims that they have put forward or that they are in any other way connected to the Convention. The Tribunal does not, therefore, accept that the applicants will have any need to request police protection in relation to these issues upon their return to Indonesia. As stated above, the Tribunal is strongly of the view that their claims to fear harm in Indonesia are fabricated.

59    The husband also calls in aid of the “illogicality” argument [122] of the Tribunal’s decision record (emphasis added):

[122]    The Tribunal also does not accept the submission that the “passage of time” is not relevant as the persons who were imprisoned have recently been released or will soon be released enhances the applicants’ fear of persecution. The applicants have claimed that it is not only the persons who were released, but their associates and ‘cadres’ who will seek to harm them. The Tribunal has found above that any such persons have had ample opportunity to do so and has not accepted their reasons as to why they have not been able to inflict harm upon the applicants or their families. The Tribunal does not accept, therefore, that the fact that the persons involved in the corruption matter in [name of place] are recently or soon to be released will result in an increased risk of harm for the applicants. As stated above, the Tribunal has not accepted past harm and does not accept that there is a real chance, some 8 years after the [name of place] corruption case, that any persons associated with the PDI(P) or Megawati Sukarno Putri or any other persons implicated in the corruption matter, will have any interest in harming the applicants or their family.

Relevant law

60    In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS), Gummow A-CJ and Keifel J set out at [37]-[40] their approach to determining whether a decision maker has made a jurisdictional error, in circumstances where the decision maker has given reasons and must be “satisfied” of a criterion (such as whether an applicant for a protection visa has a well-founded fear of persecution for a Convention reason as required for the grant of a visa under s 65 of the Migration Act). There they discussed the decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (SGLB) as follows (footnotes omitted):

[37]     The ascertainment of the relevant jurisdictional error, if there be one, must fix upon the treatment of the requirement mandated by s 65 of the Act that the decision maker be “satisfied” that there is “satisfied” the criterion that the applicant is one to whom the decision maker is satisfied under s 36(2)(a) that Australia owes protection obligations.

[38]     In dealing with that question two distinctions must be made. They are foreshadowed in what has been said earlier in these reasons. The first is that the first respondent does not assert any general ground of jurisdictional error of the kind disfavoured by Mason CJ where there were alleged deficiencies in what might be called “intra-mural” fact finding by the decision maker in the course of the exercise of the jurisdiction to make a decision. The apprehensions respecting “merits review” assume that there was jurisdiction to embark upon determination of the merits. But the same degree of caution as to the scope of judicial review does not apply when the issue is whether the jurisdictional threshold has been crossed. There the imperatives are the separation of powers considerations to which Justice Selway referred.

[39]    The second distinction concerns attacks upon the exercises of discretionary power which are said to be unreasonable in the sense attributed to Associated Provincial Pictures Houses Ltd v Wednesbury Corporation. The concern here is with abuse of power in the exercise of discretion, again on the assumption that the occasion for the exercise of discretion had arisen upon the existence of any necessary jurisdictional facts. Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view.

[40]    It was against this background that, when considering s 65 of the Act in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB, Gummow and Hayne JJ said [at [37]-[38]]:

[37] … The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a ‘jurisdictional fact’ or criterion upon which the exercise of that authority is conditioned. The delegate was in the same position as would have been the Minister (s 496) and the Tribunal exercised all the powers and discretions conferred on the decision-maker (s 415).

[38] The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.

However, it should be remarked that what is characterised as the “critical question” should not receive an affirmative answer that is lightly given. It may be noted that the outcome in SGLB and in Applicant S20/2002 was to deny the presence of jurisdictional error. This reflected the approach upon judicial review earlier expressed in Wu Shan Liang to which earlier reference has been made.

61    At [102] of SZMDS, Crennan and Bell JJ approved the approach of Gummow and Hayne JJ in SGLB at [37]-[38]. Crennan and Bell JJ took care to emphasise, at [96] that nothing in their reasons “sanctions the deployment of “illogicality” or “irrationality” to achieve what is sometimes called merits review” and went on to say at [103] (footnotes omitted):

[103]    The approach to be derived from the emphasised statement had been foreshadowed in Minister for Immigration v Eshetu where Gummow J referred to “findings or inferences of fact which were not supported by some probative material or logical grounds”. The approach was also anticipated in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 where Gleeson CJ noted that one of the grounds of challenge to the tribunal’s decision was that it “was illogical, irrational, or was not based on findings or inferences of fact supported by logical grounds”. It was said by the appellant that since Applicant S20 a range of views had emerged in the Federal Court as to whether an illogical process of reasoning in the course of reaching a conclusion of fact amounts to a jurisdictional error.

62    They went on to say at [129]-[131] and [133] and [135] (footnotes omitted):

[129]    It can be acknowledged that the contemporary invocation of “illogicality” or “irrationality” as a basis for judicial review may well have first emerged in Australia, as intimated by Gleeson CJ in Applicant S20/2002, as a reaction to the ouster of the review ground of “Wednesbury unreasonableness” in immigration law. Equally it may be that the development of “irrationality” as a basis for judicial review in England grew out of dissatisfaction with the inherent circularity of the Wednesbury test and the implicit suggestion in Wednesbury that there were degrees or grades of unreasonableness. Be that as it may, accepting that an allegation of “illogicality” or “irrationality” must mean something other than emphatic disagreement as explained above by reference to Eshetu and Applicant S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do “illogicality” and “irrationality” fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is “clearly unjust”, “arbitrary”, “capricious” or “Wednesbury unreasonable”?

[130]    In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

[131]    What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

…

[133]    However, the correct approach is to ask whether it was open to the tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. …

…

[135]    On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. …

63    A wrong finding of fact, which is not a jurisdictional fact, will generally not be sufficient to impugn a decision: SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 per Rares J at [12]. Illogicality will not amount to jurisdictional error in every case and it will not be sufficient where it would be futile to grant relief because there are other bases for the impugned decision: per McKerracher J at [85] and cases cited at [95]-[101]. Reviewable error in relation to one matter (in that case, reliance by the Tribunal on an anonymous letter) would not be sufficient to grant relief where other matters grounded the decision because it was not a situation where only one conclusion was open on the evidence, or the decision was simply not open on the evidence or there was no logical connection between the evidence and the inference or conclusions draw on those matters: per Reeves J at [113]-[114].

Submissions

64    The husband submitted that the Tribunal’s decision was “irrational, illogical and not based on findings or inference of fact supported by logical grounds” and therefore fell into jurisdictional error. Further, he submitted that the primary judge erred in finding, at [33] and relying on SZMDS, that this ground for review does not attach to the particular findings of fact but rather to the decision itself. The husband said the ground will attach to “the judicial review of a decision as to a jurisdictional fact”.

65    He submitted that the decision of the Tribunal that the husband and wife fabricated their evidence of having a well-founded fear or persecution is a decision as to a jurisdictional fact and not a fact or integer along the way to a determination of a jurisdictional fact. He says that there is no evidence on which the Tribunal could on a rational and logical basis make a finding that the husband and wife had engaged in an intentional act of “fabricating” or “manufacturing” their evidence. He contended that such a finding is equivalent to a finding of fraud relating to evidence given on oath and there is no rational basis to support that conclusion.

66    The husband also impugned the process of reasoning employed by the Tribunal and the primary judge. The husband submitted that the primary judge approved (at [22]) the logic that “the Appellant was at one time at risk of some harm, but no physical harm came to him, it isn’t logical now for the Appellant to be more concerned than he was then”.

67    The husband submitted that the Tribunal’s reasoning was: (a) while you were in Indonesia no one harmed you; (b) this proves that while you were in Indonesia no one wanted to harm you; and (c) this proves that no one wants to harm you in the future. He said that, although it is not true to say that past harm can never be a factor, there is no logical probative connection between the failure of an event to happen and the existence of a state of mind of unidentified people; to form such a view is mere speculation. He argued that the only logical thing that can be said about an event not happening is that the event has not happened. Any extension beyond that is not supported by any probative evidence. It was his submission that the approach of the Tribunal was to say “well if they really wanted to hurt you they would have done so by now”, setting up an unanswerable “Catch-22” which would defeat the purposes of the Convention because it is concerned with what might happen in the further.

Consideration

68    The critical issue in a finding of jurisdictional error will be whether the determination of the jurisdictional fact was irrational, illogical or not based on findings or inferences of fact supported by logical grounds. It is not a back door to impermissible merits review. It must be a decision that no rational or logical decision maker could arrive at on the same evidence. If it meets this test, there will be jurisdictional error notwithstanding that the decision is made bona fide. It will therefore be jurisdictional error if it is a situation where there is only one conclusion open on the evidence and the decision maker does not reach that conclusion, or the decision was simply not open on the evidence, or there was no logical connection between the evidence and the inference or conclusions drawn on those matters. However, it will not be enough that one outcome might be preferred over another which is also open on the same evidence. It requires more than emphatic disagreement. Differences of degree, impression and empirical judgment between the decision maker and a court conducting judicial review will not be sufficient. Illogicality will not amount to jurisdictional error in every case, it must affect the decision.

69    In summary, the question of whether there has been jurisdictional error focuses on the integrity of findings of jurisdictional fact, not “intra-mural” fact finding. I therefore reject the husband’s argument that the primary judge erred at [33] in his interpretation of the decision of the High Court in SZMDS.

70    As with the “wrong test” category of grounds relied on by the husband, the husband’s submissions that there are no logical bases for the findings that some evidence of the husband and wife is fabricated are premised on the theory that the Tribunal acted wholly or predominantly on the basis that the husband and his family had not suffered harm and therefore their claims were not to be believed and were fabricated. This is the fallacy at the heart of the husband’s submissions set out at [65] to [67] above. Neither of the Tribunal nor the primary judge (at [22] and [33]) engaged in the simple syllogisms posited by the husband, nor was the primary judge wrong when he said at [29] that “the fact that the applicant and his family have not been killed or injured was not a matter that the Tribunal held to discredit the applicant in and of itself …”.

71    The Tribunal accepted that the husband and his family feared harm in 2004 at the time the husband revealed corruption and took steps at that time to avoid it. I have set out at [48]-[51] other matters addressed by the Tribunal which demonstrate that the Tribunal considered on a range of factors and weighed the evidence of the husband and wife (including the possible impact of defendants convicted in the corruption case being released from jail in 2011) but did not find it credible that they held a well-founded fear of harm after 2004 or that they modified their behaviour after that date because of that fear.

72    It is implicit in the husband’s argument that the Tribunal was not entitled to have regard to the effluxion of time in evaluating the risk of harm and the primary judge was wrong to accept the Tribunal’s reasoning. It is the basis of the complaint about the Tribunal’s reasoning in [114], [121] and [122] of the decision record. This view is not supported by authority or logic even though honest minds might differ as to what an appropriate time period might be before a threat abates. In the context of difference of views as between the Tribunal and this Court in considering the claims in SZMDS, Heydon J said:

[77]    The Federal Court reasoned that the illogicality lay in assuming that others would discover that the first respondent was a practising homosexual during “the brief period of his visit”. But for the Tribunal to assume, in the first respondent’s favour, that if he returned to Pakistan for an indefinite period that fact would become known is not inconsistent with assuming that it would become known during a briefer period. It cannot be said that there is any illogicality. And it cannot be said, as the Federal Court did, that there “was simply no basis” for the Tribunal’s conclusion. If the only relevant factor were the duration of the visit to Pakistan, the longer the period of the visit to Pakistan, the more likely it was that the fact would become known. The shorter the period, the less likely it was that the fact would become known. But that does not establish that there was no basis for the Tribunal’s conclusion.

[78]    The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the tribunal member. The difference could not be said to reveal an absence of any basis whatsoever for her conclusion.

73    The husband complains in particular about the bolded words in [114] and [122] of the Tribunal’s decision record (which are set out at [58] and [59] above). I do not consider that they reflect a straight line of reasoning: no harm suffered therefore no risk. Nor are they a finding in relation to the thinking of unidentified third parties. The context is arguments put by the husband’s representative about the impact of the effluxion of time without incident, and that is a relevant consideration which does not reveal an error of logic for the reasons given by Heydon J. The bolded words are simply an emphatic rejection of emphatically phrased submissions.

74    The husband referred to a passage from the transcript of the proceedings before the primary judge which he says is reflected in [22] of SZRHS. For full context, I include some passages before and after that referred to by Counsel for context:

HIS HONOUR:     You have already said that the tribunal questioned the applicant at length about his activities in Indonesia. Surely, those questions those answers provided a basis for the tribunal’s factual conclusion.

MR ANTIPAS: Yes, you can – you can form the view that I don’t accept what the applicant says, I don’t think that you – you displayed a sufficient degree of fear, I think that despite the fact that you studied online and worked as a village head with these – I guess working from home arrangements, that that does not mean that they entered those arrangements to fabricate a story to eventually come to Australia.

HIS HONOUR: No, it doesn’t necessarily mean that, but you’re saying no reasonable tribunal could have reached this conclusion. It seems to me that there is a logical process of reasoning here in this decision, and that’s this; there was a set of circumstances which are true. The applicant was, at that time, at risk of some harm, but no physical harm came to him. It isn’t logical now for the applicant to be more concerned than he was then. The applicant needed to try and construct something in order to justify his assertion of the heightened fear now, so he has constructed claims related to lying low, making arrangements for his security, taking care to cover his tracks, to work from home, to study online, those sorts of things were, if you like, gilding the lily to try and explain why he is seeking protection now rather than then when it would have been more logical to do so. That’s a logical process of reasoning. I’m not saying it’s necessarily right, but it’s logical.

MR ANTIPAS:    But the bit that I have issue is where you say that he must have manufactured it, it’s a conclusion that is not – manufacture, fabrication purports some deliberate or reckless attempt to conceal something, or to concoct something. There is no evidence that that has actually occurred.

HIS HONOUR:    That’s a credibility finding and the tribunal was entitled to make credibility findings after testing applicants on detail.

75    The primary judge’s reasoning process is entirely uncontroversial both at the hearing and at [22] of his reasons: nor do I understand either of the Tribunal or the primary judge to have been suggesting that the husband and family, for instance, went into hiding in Indonesia to found a protection claim. Rather, the Tribunal found that claims to have gone into hiding and to have an ongoing fear of harm arising from the husband’s exposure of corruption were not accepted as true and the Tribunal rationally reasoned that the claims were made to establish eligibility for a protection visa.

76    Counsel for the husband appears to have been concerned that there was no “smoking gun”: the Tribunal generally found evidence of the husband and wife consistent (as between evidence given to the Delegate and the Tribunal) and there was no forgery. However, it is open to the Tribunal, as here, to reject explanations consistently given in evidence if those explanations are implausible because they are not logically consistent with the claims being made. The Tribunal is not required to accept uncritically any and all claims made by an applicant: Guo per Kirby J at 596, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 (Selvadurai) per Heerey J at 348. The merits of a case, including matters of weight to be given to items of evidence and the credibility to be attached to witnesses are for the Tribunal to determine: Wu Shan Liang at 291-292.

77    Grounds 3 and 5 reflect again the evil of minutely picking over a Tribunal’s reasons, and the primary judge was entitled to make the finding that he did at [22], [29] and [33] when the Tribunal’s reasons are read as a whole. I reject both of these grounds of appeal.

78    I also reject Ground 6: it is an artificial construction of the primary judge’s reasons. The reference to Selvadurai at [29] of SZRHS must be read in the context of the first reference to it at [28] which I consider to be a wholly uncontroversial reading of Heerey J’s judgement in Selvadurai:

I reject the contention that there was any injustice or unfairness in the manner in which the Tribunal conducted its review. The Tribunal was not bound to accept the evidence of the applicant and his wife or the opinions proffered in support of their claims by Dr White. The Tribunal does not require contradicting evidence in order to reject evidence provided to it.

Onus of proof, procedural unfairness and KopalapillAi: ground 4

79    Ground 4 is:

The Federal Magistrate erred by finding that “this was not a case of the Tribunal imposing an onus on the applicant to prove his truthfulness”: at paragraph [32].

80    Paragraph [32] of SZRHS is:

Secondly, to the extent that this assertion might be advanced in order to allege breach either of the general law fair hearing rule or of s.425 of the Migration Act, it is not supported by the facts. The Tribunal followed an inquisitorial process which involved testing the evidence of the applicant and his wife. This was not a case of the Tribunal imposing an onus on the applicant to prove his truthfulness. Rather, it was a case of the Tribunal not being satisfied that the applicant and his wife held continuing genuine fears for their safety.

81    The husband submits that the Tribunal required him to prove the truth of his sworn evidence and then rejected the value of that evidence. He says that the Tribunal reached its decision by “adopting a procedure which placed on the Appellant an onus of establishing that he was truthful … based on the assumption that the purpose of the hearing before it was to discover whether the Appellant was a truthful person”, thereby contravening s 420. He relies on the decision in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.

82    The husband submits that although there are no rules of evidence applicable to Tribunal hearings, the Tribunal imposed burdens on the husband which were greater than would have applied if the rules of evidence did apply. He says:

The Tribunal embarked on an unnecessary and lengthy course of interrogation of the Appellant’s wife with repeated questioning regarding her knowledge of the Appellant’s duties as a Village Head, only to subsequently receive the answers sought by asking the Appellant directly. The Tribunal requested proof of the fact from both the Appellant and his wife. The Tribunal also requested proof from the Appellant that he in fact was involved in whistleblowing activities.

83    As already pointed out, the Tribunal is not obliged to accept uncritically the evidence of those who attend its hearings, even when that evidence is sworn. Having reviewed the 1.5 pages of transcript of the Tribunal’s questions to the wife about the husband’s duties as village head I do not regard them as excessive. The first answer was “to lead the village society, to develop the village area, like the small village president, like a president but of the village”. Three further questions seeking greater specifics received vague answers. It is a topic on which an educated spouse, living in the same house in a village might be expected to know and deal with easily or at least less generally than the response given. That the husband might be able to provide the answer is not to the point: the hearing is an “inquisitorial” process and the Tribunal is entitled to test evidence. I note that at the end of the evidence the Tribunal, without request, adjourned the hearing for ten minutes.

84    I also do not consider that the Tribunal threw an onus onto the husband and wife by its enquiries as to whether there was documentary evidence to support the claim that the husband had been a village head or media reports of what the husband alleged to have been an infamous case which occasioned the jeopardy to him and his family. As the Minister pointed out, the Tribunal accepted that the husband had been village head and did have a role in exposing corruption in his local area: the two issues identified by the husband for complaint.

85    I find no error in the primary judge’s reasoning at [31] and [32] and I accordingly reject this ground.

Other grounds

86    There were 6 other grounds of appeal set out in the notice of appeal. The husband’s written submissions did not address these grounds and, as a result, neither did the Minister’s written submissions. Counsel for the husband indicated that he was instructed by his instructing solicitors to press these grounds against advice and he did not advance any argument in chief in support of them. The Minister’s representative elected to provide some submissions in relation to the grounds, and counsel for the husband offered some comments in reply.

Ground 7

87    Ground 7 was as follows:

The Federal Magistrate erred by finding that the Tribunal’s rejection of the Report of Dr White, which was part of the reason for affirming the decision under review, did not involve the use of information that the Tribunal failed to put to the applicant in accordance with s424A of the Act: at paragraph [35] of the Reasons for Decision.

88    Paragraph [35] of SZRHS was as follows:

The applicant argues that the Tribunal is obliged by s.424A to give him written particulars of the following: first, its view that the report of Dr White was “based solely on what he has been told by the applicants and not as a result of any personal knowledge”; and secondly, the stated omission of any reference to ongoing threats in documentation provided to the Tribunal. Neither of those matters falls within the meaning of “information" in s.424A(1). In that regard, there is no doubt that Dr White’s reports themselves were submitted on behalf of the applicant in support of his protection claims. That is sufficient to bring that material within the purview of s.424A(3)(b) and (ba).

89     This ground must be rejected. First, the Tribunal’s view that the report of Dr White was “based solely on what he had been told by the applicants and not as a result of any personal knowledge” is plainly the Tribunal’s “subjective appraisal, thought process or determinations” which is not “information” for the purposes of s 424A(1): SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]; VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]. Second, the primary judge did not err in finding that Dr White’s reports themselves were submitted by the husband’s representative (on his behalf) to the Department and the Tribunal which would bring that material within the exceptions to the requirement imposed by s 424A(1) by subs (3)(b) and (3)(ba) of s 424A.

Ground 8

90    Ground 8 is as follows:

The Federal Magistrate erred by rejecting ground 6 of the Amended Application by finding that whether the applicant continued to be a member of a particular social ground (namely “whistleblowers”) was not a ‘critical issue in the review’ and so not the subject of the requirements give [sic] notice of issues on the review for the purpose of s 425 of the Act, at paragraph [39] of the Reasons for Decision. His Honour erred by superimposing on the notice requirements under s 425 described in SZBEL v Minister for Immigration & Multicultural Affairs (2006) 228 CLR 152 at [34] as a requirement that an issue in the review be “the critical issue”.

91    Ground 6 of the Amended Application is as follows:

The Tribunal breached s.425 of the Act in that it did not provide notice to the Applicants that an issue in the Review would be whether the husband applicant had “once been a member of such a group [namely the particular social group of whistleblowers” and that his membership was a matter of the past and not a continuing membership: [RD]481 [123].

92    Paragraph [39] of SZRHS is as follows:

This ground is misconceived. The critical issue in the review was not whether the applicant had continued to be a member of a particular social group, but rather whether there was a well-founded fear of persecution for that reason. The Tribunal made abundantly clear at the hearing that this was an issue and gave the applicant and his wife every opportunity to address it. Further, that had been the critical issue in the delegate’s decision. For those reasons there was no breach of s.425 of the Migration Act.

93    I find no error in the primary judge’s reasons and reject this ground.

Grounds 9-11

94    Ground 9-11 are as follows:

9.    The Federal Magistrate erred by finding the Refugee Tribunal is “able to operate independently of the rest of Executive Government”: at paragraph [17] of the Reasons for Decision.

10.    The Federal Magistrate took into account an irrelevant consideration by finding that it was “a concern in this case…that the applicant’s representative before the Tribunal made extravagant claims against the Minister’s delegate”: at paragraph [18] of the Reasons for Decision. The Federal Magistrate disregarded undisputed evidence confirming the fact of the conduct of the Minister’s delegate and the demeanour, and conduct of the proceedings, by the Tribunal member.

11.    The Federal Magistrate erred by finding there is a “public interest in upholding the confidence in the reputation of the Tribunal for making high quality decisions on an independent basis” and that “the public interest is also served by the Courts … exercising restraint” in the course of undertaking judicial review of Tribunal decisions: at paragraph [18] of the Reasons for Decision.

95    The full context of the primary judge’s remarks complained of are as follows:

16.    The Tribunal accepted the applicant’s core claims of his role in reporting the corruption of local officials in Indonesia and supporting the authorities in the subsequent investigation and prosecution of those corrupt local officials. The applicant showed moral courage in resisting attempts to bribe him into silence and in not succumbing to threats made against him as a consequence of his actions. The information provided by the applicant to the Tribunal in support of his claims for protection included allegations of high level political involvement in corruption in Indonesia extending as high as a former president.

17.    Allegations of that nature, if they were to be made public, have the potential to affect Australia’s relations with its near neighbours. Australia is fortunate in that protection visa decisions are reviewed on their merits by a tribunal which is able to operate independently of the rest of the Executive Government, although it forms a part of that Executive Government. There is a public interest in upholding public confidence in the reputation of the Tribunal for making high quality decisions on an independent basis. The Tribunal obviously has a role to play in promoting its own reputation through the review processes it pursues. The public interest is also served by the courts, and the legal representatives who appear before the courts in support of parties interested in Tribunal decisions, exercising restraint. The public interest is not well served by the use of extravagant language in dealing with claims and the making of extravagant claims.

18.    A concern in this case is that the applicant’s representative before the Tribunal made extravagant claims against the Minister’s delegate and that the amended application before the Court mounts a broad ranging attack upon the Tribunal decision which, in my view, is unwarranted. Extravagant claims against members of the Tribunal are too frequently made. Legal representatives, while they are entitled to represent their clients’ interests vigorously, should afford to Tribunal members the respect they deserve for undertaking a difficult job in a highly professional manner.

19.    I do not, in saying this, intend any criticism of counsel for the applicant, who was briefed to appear on the amended application prepared by his instructing solicitors and who did his best to make submissions on that amended application in a professional manner. I also accept counsel’s submissions in reply at [27]:

The obligation on practitioners to support the confidence in the independence of the Tribunal is an obligation to ensure that the full rigor of the law is applied to those decisions, contrary to any obligation to give deference to the Executive and its decision making processes. Those processes, if they are to be respected, must withstand close judicial, logical scrutiny1. This is an essential element of the rule of law and the Applicant has every right to challenge the Executive in this way. The grounds in the Amended Application go to those matters.

20.    I nevertheless suggest that more care might be taken by instructing solicitors in the preparation of applications to review Tribunal decisions, in order to ensure that only fairly arguable issues of jurisdictional error are pursued.

21.    I will now address the grounds of review raised on behalf of the applicant.

96    I reject these grounds. It is clear that this “preamble” was separate from the primary judge’s consideration of the individual grounds. It appears to have been occasioned by the troubling aggression of the submissions to the Tribunal made by the solicitors for the appellant. Having read the submissions of the husband’s representatives and the transcript material and reasons of the Tribunal, it appears to me that the appellant’s representatives had a mind overly attuned to offence. I note the following from the Tribunal’s reasons at [125] and [126]:

Additionally, the Tribunal has had regard to the representative’s submissions regarding the conduct of the delegate during the interview and the Tribunal during the hearing. The Tribunal considers that the representative’s preoccupation with the delegate’s ”body language”, “cultural insensitivity” “running his fingers through his hair” and the representative’s “fear” of raising matters to the delegate should it result in a negative decision to be unhelpful, particularly given that the Tribunal is conducting a de novo review. The Tribunal notes that the interview was lengthy and that it would have been preferable that the applicants and interpreter were given a break during the interview, but does not consider that the interview was otherwise unfair. The Tribunal considers it apparent that the delegate spent considerable time attempting to clarify the applicants’ claims and the Convention nexus for those claims.

The Tribunal is also satisfied, despite the submissions as to the “accusatory tone” and other matters relating to its alleged breaches of jurisdiction, that the applicants had every opportunity to provide their evidence during the hearing and that it has discharged its common law and statutory obligations in this regard. The Tribunal is also not satisfied that the representative’s other submissions in regard to “proof” being established by the applicants’ evidence on oath and issues relating to “jurisdiction” have any merit and, unfortunately, are further indication of a lack of understanding of the Tribunal’s role. In any event, the Tribunal accepts that the applicants evidence to the Department was generally consistent with what has previously and since been provided and has made no adverse findings in relation to any of their evidence during the interview. The Tribunal also makes no adverse findings in relation to any difficulties that the applicant wife had in responding to some questions and accepts that the hearing is a stressful process for applicants. The Tribunal has reached it adverse findings on the basis of other aspects of their claims and is not satisfied that the consistency in their evidence establishes or is “proof” of the truthfulness of their claims of continual threats and harassment or their claims to continue to fear harm in Indonesia upon their return.

97    Despite the language used in [17], I do not understand the primary judge to be suggesting that there should be any improper restraint by any of those involved in acting for the husband and wife in the review processes under the Migration Act: rather it is a plea for civility and professional conduct.

98    The fact that constitutional writs founded on “jurisdictional error” are the only remedies available in many migration matters means that most applications to the Federal Circuit Court and appeals to this Court involve an allegation of error in the process adopted by a Tribunal member. However, this rarely necessitates the kind of repeated ad hominem criticism made by the appellant’s solicitors. Indeed, it is difficult to see how the comments made in relation to the Delegate could ever have probative value, given that the Tribunal must decide for itself whether the criteria for grant of a protection visa have been met. Many of the submissions of the solicitors do not appear apt to the nature of the Tribunal’s role under the Migration Act as explained by French CJ in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [10] (footnotes deleted):

… It is well established that the reviews that both the MRT and the Refugee Review Tribunal (the RRT) undertake (both tribunals operating under similar legislative schemes) are non-adversarial and that they involve no contradictor nor the joinder of any issue. The review function of the tribunals created by the Act is sometimes called “inquisitorial”. That designation is a characterisation of their function which distinguishes it from adversarial proceedings. The word “review” “has no settled pre-determined meaning; it takes its meaning from the context in which it appears”. As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate. There are similarities to the kind of review provided by the Administrative Appeals Tribunal (the AAT), described by Brennan J in Bushell v Repatriation Commission as:

… an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it.

As for the AAT, so too for the MRT and the RRT, the onus of proof relevant in judicial fact-finding has no part to play in administrative proceedings.

99    Further, the solicitors’ own conduct bears closer reflection by them. For instance the written submissions to the Delegate and the Tribunal member were long and repetitive: they are more apt to obscure the point than to elucidate it. They might also reflect on the appropriateness of pressing grounds which their counsel is not prepared to argue and which plainly lack merit.

Ground 12

100    Ground 12 is as follows:

By reason of the errors identified above, the Federal Magistrate erred by failing to find that the Tribunal’s decision was affected by jurisdictional error as alleged in the Amended Application dated 16 July 2012 and by failing to grant the relief sought therein.

101    The Minister’s representative correctly described this as a “wrap up” ground and it adds nothing to the previous grounds. As I have rejected the other grounds, this ground must also fail.

Conclusion

102    For these reasons I will dismiss the appeal and order that the appellant pay the first respondent’s costs as agreed or assessed in default of an agreement.

Associate:

Dated:    21 February 2014