FEDERAL COURT OF AUSTRALIA

SZSZM v Minister for Immigration and Border Protection [2014] FCA 984

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (“S395”) the High Court held that, if the Refugee Review Tribunal required two homosexuals to live discreetly in order to avoid persecution in their country of nationality, it would have fallen into jurisdictional error. In substance, the issue on this appeal is whether the tribunal in the present case made such an error by requiring the appellant not to “unnecessarily” disclose his drug and criminal history in Australia if he were to be returned to his country of nationality.

Factual background

2    The appellant is 26 years old. With his parents, he emigrated from Pakistan to Australia. He was 11 years old at the time and, save for various periods between 2000 and 2004, which he spent in the United Arab Emirates and in Pakistan, he has lived here ever since. Eight years ago he was granted permanent residence, along with the rest of his family. Unlike them, however, he never applied for Australian citizenship.

3    The appellant has a substantial criminal history, which includes convictions for drug offences, and for which, as he put it himself, he has spent “many periods of time in gaol”. In the result, on 17 October 2012 his permanent residence visa was cancelled on character grounds. About four months later the appellant applied for a protection visa, claiming to fear harm “as an outsider” if he were deported to Pakistan. A delegate of the Minister refused his application and, upon review, the tribunal affirmed the delegate’s decision.

4    The appellant then applied to the Federal Circuit Court for judicial review of the tribunal’s decision but that application was also dismissed. It is from that decision that he brings this appeal.

Eligibility for protection visa

5    If a visa application has been validly made, the Minister is required to grant it provided that he is satisfied that the prescribed criteria have been satisfied, the grant of the visa is not prevented by a provision of the Migration Act 1958 (Cth) or any other Commonwealth law, and the appropriate charge has been paid: Migration Act, s 65. The principal criteria for a protection visa are contained in s 36 of the Act. Relevantly, s 36(2) provides:

A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…

6    Under the Refugees Convention as amended by the Refugees Protocol (together “the Convention”) Australia has protection obligations to refugees. “Refugee” is relevantly defined in Article 1A(2) of the Convention to include a person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”. But s 91R of the Migration Act provides that Article 1A(2) does not apply in relation to persecution for one (or more) of the reasons mentioned in that Article unless the reason is (or the reasons are) the essential and significant reason(s) and the persecution involves both serious harm to the person and systematic and discriminatory conduct.

7    For the purposes of s 36(2)(aa) (the complementary protection provision), s 36(2A) states that a non-citizen will suffer significant harm if he or she will be arbitrarily deprived of his or her life; the death penalty will be carried out; or he or she will be subjected to torture, or cruel, inhuman or degrading treatment or punishment. On the other hand, if it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that he or she will suffer significant harm; or the non-citizen could obtain protection from an authority in that country; or the risk is one faced by the general population and not by the non-citizen personally, then there is taken not to be a real risk that he or she will suffer significant harm: s 36(2B).

The claim for protection

8    In a statutory declaration that accompanied his application for a protection visa the appellant said that he feared for his safety if he were to return to Pakistan. He explained that he had lived most of his life in Australia, had Western values, communicated with his family in English, and was unable to read or write in Urdu. He said that he did not identify with the cultural and religious views in Pakistan and, in particular, did not share the dominant fundamentalist view of Islam. He expressed a fear that he would be seen as an outsider in Pakistan and at risk of harm because of his values, his views on religion and his western way of life. He also expressed a fear that he might be kidnapped for ransom because of the prevalence of crime in Pakistan and because of the perception of many Pakistanis that people who live in a Western country have access to money. And he said he would have a problem getting employment or accommodation in Pakistan because of his illiteracy in Urdu and also, relevantly, because of his criminal record for drug-related offences. He asserted that disclosing that information “when trying to obtain employment or accommodation [might] actually put [him] at risk of being targeted”. He described Pakistan as a dangerous country and said that he did not know how to survive, keep safe or avoid danger there. In addition, he said he was on a methadone program and was afraid that in Pakistan he would not be able to continue with it, although it was essential for his drug rehabilitation and for his health.

9    The appellant claimed the Pakistani authorities would not offer him protection because the police are corrupt and because he was afraid that the authorities might harm, rather than protect, him owing to their fundamentalist religious views.

10    Also attached to the visa application were documents addressing various questions posed in the application form, including a copy of the appellant’s criminal record.

11    Submissions made on the appellant’s behalf to the tribunal characterised the appellant’s claims in the following way (without alteration):

The Applicant claims that he fears persecution by Islamic fundamentalist groups/individuals in Pakistan because of his rejection of Islam [although in his visa application he gave his religion as “Sunni Muslim”], and his imputed/political opinion (anti-religious fundamentalism, opposition to Islamic extremist/fundamentalists).

We further submit that having criminal convictions in Australia and being returned as an involuntarily returned failed asylum in Australia also puts the Applicant at risk of Convention related persecution and significant harm.

We submit that an essential part of an Applicant’s refugee status assessment is the consideration of all the Applicant’s claims of past persecution and future risk of persecution for all the Conventions reasons raised by the Applicant’s claim. We further submit that when the assessing the Applicant’ claims the individual circumstances of the Applicant, such as other risk factors, and future risk for a person with those particular/individual circumstances/profile need to be considered.

12    The submissions identified the Convention reasons as religion and actual or imputed political opinion. They also pointed to Article 33 of the Convention which prohibits a Contracting State from expelling or returning a refugee to the frontiers of territories where his life or freedom would be threatened on account of a Convention reason.

13    Under the heading “Future risk – Criminal convictions in Australia” the submissions stated that the appellant feared his criminal convictions in Australia “will put him at risk in Pakistan”. They continued:

In terms of future risk it is submitted that the following needs to be considered that the impact that the criminal convictions will have in the Applicant’s ability to obtain employment and housing to enable him to subsist in Pakistan.

14    Under the heading “Future risk – Involuntary removal from Australia” the appellant contended that his involuntary return to Pakistan as a failed asylum seeker might lead to “[C]onvention related risk of persecution or mistreatment by authorities in Pakistan”, “not because of his … own profile or claims or actions but because of the views/suspicions/motives/actions/practices of authorities of his … country”. He stressed, however, that he did not know what information would need to be provided or disclosed to Pakistani authorities in order to arrange for his removal to Pakistan, for example, whether it would be revealed that he was held in an immigration detention centre and has “a criminal conviction”. It was submitted that information needed to be obtained about this matter and, in particular, “information regarding the arrangements/assurances/agreements that are in place with Pakistan to ensure that failed asylum seeker who is involuntarily returned will not face or be at risk of Convention related persecution or other form of harm by authorities in Pakistan”. It was also submitted that there was information that people in Pakistan are detained without charge and are at risk of mistreatment, human rights abuses and torture.

15    Finally, the appellant invoked the complementary protection provisions of the Migration Act.

The delegate’s decision

16    The appellant was interviewed by the delegate. At the interview he claimed to have lost touch with the Urdu language. When asked what was in store for him if he were to return to Pakistan, he said there was no life for him there. He said he did not know what he would do or how he would cope. His migration agent submitted that there was evidence that individuals in Pakistan take action against people perceived not to be following Islam and that it would be unlikely that the appellant would get work “because of his western values and his criminal record”. The agent contended that the appellant’s ability to subsist would be at risk for these reasons and also because the appellant was a former drug user.

17    The delegate accepted that the appellant has a genuine fear of returning to Pakistan. He accepted that the appellant fears that “he will be unable to adapt to society there and that he may be unable to subsist”. Noting, however, that to satisfy the definition of “refugee” in the Convention (specifically, to show a “well-founded fear”) it is necessary to show both a subjective fear and “an objective factual basis” for that fear, the delegate concluded that in this case no factual information had been presented which could provide that objective basis.

18    The delegate accepted that the appellant’s appearance and demeanour are such that he could be identified as someone who had resided in a western country but was unable to find any information “that would elevate this group of persons beyond that of a demographic group in Pakistan”. He said that “in the absence of any identifiable, specific threat to the [appellant] in this regard, there is no specific information that can support a finding that the [appellant] has a real chance of serious harm for this reason”.

19    In answer to the claim by the agent that there was evidence that individuals in Pakistan take action against people perceived not to be following Islam, the delegate observed that the appellant had declared himself to be a follower of Sunni Islam and referred to independent country information showing that Sunni Muslims constituted 75% of Pakistan’s population. He said there was no evidence to support a finding that a particular group in Pakistan would perceive the appellant not to be a follower of Islam or that he would be at risk of persecution for this reason in the reasonably foreseeable future in Pakistan. He described the appellant’s fear in this regard as “speculative”.

20    In answer to the agent’s other contentions, the delegate said he accepted the appellant would have difficulty adapting to Pakistani society but he was unable to conclude that there was “a nexus between any [such] difficulty … [and] a perception that [the appellant] holds western values, his criminal record, or his former drug use”. He added that there was no reason to conclude that either the appellant’s criminal record in Australia or his former drug use here would be public knowledge in Pakistan or that the appellant would be denied the ability to subsist for reasons associated with either of those matters.

21    The delegate also found that the chances of the appellant being kidnapped, based on a perception that he is wealthy, was equally speculative.

22    The delegate rejected the complementary protection claim as well for reasons which are presently irrelevant.

The tribunal’s decision

23    This was not a case in which the claims of the visa applicant were rejected as dishonest. The tribunal identified the issues which were “dispositive” of the application as:

(a)    whether the harm the appellant feared was “well-founded” (refugee criterion); and, if not,

(b)    whether there was a “real risk” the appellant would suffer “significant harm” (complementary protection criterion).

24    The tribunal accepted that the appellant would experience difficulties adjusting to life in Pakistan, although it considered that those difficulties were likely to be ameliorated by both his parents’ undertaking to provide financial support and his English language skills. On the available evidence, however, the tribunal was not satisfied that, as a westernised Pakistani Muslim who attended mosque infrequently, the appellant was likely to be a target for harm or that his fear of harm at the hands of Islamic fundamentalists was well-founded. The tribunal noted that the appellant had had no personal experience of such harm when he lived in Pakistan and had not mentioned knowing anyone who had. Although independent information indicated that certain groups were at risk of harm from Islamic fundamentalists, the tribunal said that, as a member of the dominant Sunni denomination who was not anti-Islamic, the appellant did not share any of the characteristics of those groups. Similarly, the tribunal found that the appellant did not face a real chance of abduction or kidnapping for ransom. The tribunal said there was no evidence to support the conclusion that returning citizens were targeted for kidnap and ransom.

25    It will be recalled that in his statutory declaration the appellant stated that he would have a problem obtaining employment or accommodation in Pakistan, amongst other reasons, because of his criminal record for drug-related offences. At the hearing he said “maybe I thought because I’ve got a criminal record they won’t, I won’t be able to get employment disclosing that to my employer or for a house or anything like that”. The tribunal questioned him about why he thought he would have to disclose his Australian criminal record. The substance of the appellant’s response was that he did not know what the situation was in Pakistan. Rather, he surmised that, because in Australia an applicant for a job in a government agency would be asked for his criminal history and because police checks were often undertaken, the same course would be followed in Pakistan.

26    Towards the end of the hearing the tribunal invited the appellant’s migration agent to make submissions. In the course of those submissions she referred to “the lack of knowledge” of the processes or agreements that were in place with Pakistan to ensure that the appellant was not subject to arbitrary detention or human rights abuses. She submitted that the appellant “will be seen to be returned from Australia involuntarily so the authorities – he will be handed over to authorities in the airport”. The tribunal explored this matter with the agent, who ultimately conceded that she had no information to suggest that there was any such process.

27    The finding which gave rise to the application in the Federal Circuit Court appears at [28] (“RRT [28]”):

There is no evidence before me to indicate that it would be necessary for the applicant to reveal in Pakistan either his former drug addiction or his criminal record in Australia, and I find that the chance of these matters coming to the attention of others is remote.

The complaint

28    The nub of the complaint made to both the Circuit Court and this Court is that, by making the finding at RRT [28], the tribunal had implicitly required the appellant to take reasonable steps to avoid the claimed persecution by concealing his drug and criminal history. This was said to be a jurisdictional error, based on the principles in S395. In this Court, the appellant argued that the Convention reasons for his claims to fear persecution were religion, imputed political opinion, and membership of a social group (of outsiders and/or involuntary returnees). He claimed that his drug and criminal history was an integer of those claims, and that the tribunal wrongly required him to hide his criminal and drug history in order to avoid persecution.

The application before the Federal Circuit Court

29    Nine grounds were listed in the original application but, after the appellant had obtained legal advice, four different grounds were substituted:

(1)    The Tribunal’s finding at [28] that the chance of his former drug addiction or criminal record in Australia coming to the attention of others was remote on the basis [that] there was no evidence to indicate that it would be necessary for the applicant to disclose this history, was made on an implicit expectation that the applicant would or should not disclose his criminal history “unnecessarily”. The Tribunal erred in failing to consider whether the discretion required of the applicant not to disclose his criminal history “unnecessarily” would be a voluntary choice or influenced by the fear of harm.

(2)    The Tribunal failed to consider whether any harm the applicant would suffer if he did not act discreetly and “unnecessarily” disclosed his criminal history could constitute persecution or significant harm.

(3)    The implicit expectation that the applicant would or should not “unnecessarily” disclose his drug and criminal history implicitly required the applicant to take reasonable steps to avoid the claimed persecutory or other harm by being discreet about this history.

(4)    The reasoning and finding referred to in Ground 1 was arbitrary and or unreasonable, in that there was no material evidence either that the applicant would not disclose his history beyond what was “necessary” or that the chance of the history coming to the attention of others was remote.

30    The primary judge found that none of these grounds was made out. Her Honour’s findings in relation to the second and fourth grounds are not challenged. The appeal is concerned with the findings concerning grounds 1 and 3.

31    The primary judge dealt with the first three grounds under the rubric “Appellant S395/2002 issues” because they all involved contentions that the tribunal erred in the manner considered by the High Court in S395.

32    The primary judge rejected the proposition encapsulated by the first ground that the tribunal had failed to consider whether the appellant’s non-disclosure of his criminal history would be influenced by fear of harm.

33    Her Honour said that the appellant had only claimed to be concerned that he would be required to disclose his criminal history to potential employers or accommodation providers and noted that the tribunal had found that there was no evidence that he would be so required. She said (at [61]) that it was clear the tribunal was deciding the issue on the narrow basis upon which the claim had been made. She had earlier observed that the appellant’s statement in his statutory declaration about this matter might be seen as raising a claim of economic hardship (referring to s 91R(2)(d) of the Migration Act), but noted (at [47]):

the [appellant] did not assert or give evidence of a basis on which such claims could be seen as having a Convention nexus or amount to “significant harm” within s.36(2A) of the Act. He did not explain the manner in which he feared he could be “targeted”. Nor did he suggest that he intended or wanted to live openly as a former criminal or drug user.

34    Her Honour also noted (at [50]) that, while in written submissions to the tribunal, the appellant’s adviser had made general submissions that having criminal convictions in Australia put the appellant at risk of Convention-related persecution and significant harm, the claims were not presented “in terms of any Convention nexus (unlike other claims said to be based on political or imputed political opinion)”. She observed that “[t]here was no suggestion [in] this submission that these matters raised a claim such as membership of a particular social group”, nor was there any explanation as to how the suggested harm would amount to “significant harm” within the meaning of the Migration Act.

35    As for the second ground, her Honour held that there was no need for the tribunal to consider whether the appellant would suffer any persecution or significant harm if he did not act discreetly and “unnecessarily” disclosed his criminal history. This was because the tribunal had found that there was a remote chance that his criminal record would come to the attention of others. As I have already indicated, this issue is not re-agitated on the appeal.

36    In relation to the third ground, the primary judge did not accept that the tribunal had expected the appellant to modify his behaviour to avoid harm. Her Honour concluded that the evidence before the tribunal did not go so far as to indicate that the appellant intended to voluntarily disclose his criminal record, merely that he would be truthful about his past, if he were required to disclose it.

37    Her Honour said that the tribunal merely considered the claims presented to it and what would in fact be likely to occur in the appellant’s individual circumstances; it imposed no requirement that the appellant would take reasonable steps to avoid persecution. In any event, her Honour held that the principle in S395 was not applicable in this case because the appellant did not suggest that he feared persecution by reason of his membership of a particular social group or that his claims in relation to his criminal history and drug use had any connection with religion, race or actual or imputed political opinion. Consequently, her Honour held that “there was no expectation of abnegation of any Refugee Convention attribute”.

The scope of the appeal

38    There are two grounds of appeal. The questions raised by them are:

(1)    whether the primary judge erred in failing to find that the tribunal required or expected the appellant not to unnecessarily disclose his drug and criminal history (“the requirement or expectation”). (“Expected” is used here in its prescriptive sense and, therefore, as the appellant conceded, as a synonym for “required”.)

(2)    whether the primary judge erred in concluding that, if this were the tribunal’s finding, the requirement or expectation did not relate to conduct which “was the foundation for a claim to protection for one of the reasons within the Refugees Convention” in that the appellant’s criminal record was an “an integer of his fear of persecution as an involuntarily returned failed asylum seeker and as an outsider”.

39    The appellant accepts that to succeed on the appeal he must prevail on both these issues. The reason is obvious. There being no complaint that the tribunal erred in its findings as to complementary protection, if the appellant’s fear of harm from disclosing his drug and criminal history had no relationship to his claim to fear persecution for one or more of the Convention reasons, then, even if the first ground is made out, there would be no reason to disturb the court’s orders. As the Minister argued, not every modification or suggested modification of behaviour is susceptible to the S395 analysis. These principles only apply to modifications or suggested modifications which involve the surrender of the rights protected by the Convention, that is to say, modifications of behaviour to avoid persecution for a Convention reason: NALZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 270 at [47] (Emmett J); SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (“SZATV”) at [93]–[94] (Kirby J). Thus, it is critical to the fate of the appeal that the appellant is able to persuade the Court that his drug and criminal history was an aspect of his Convention claims.

40    Before going any further, it is important to recognise what was not an issue in this appeal or, for that matter, in the court below.

41    First, it was no part of the appellant’s case that, if the tribunal’s finding at RRT [28] was not related to a Convention claim, then there had been a constructive failure to exercise jurisdiction. As I have already observed, the appellant’s position was that, for the Court to allow the appeal, he must succeed on both issues.

42    Second, in its decision record the tribunal did not expressly address the so-called involuntary returnee or failed asylum seeker claim. But, once again, the appellant did not contend (either in this Court or in the court below) that the failure to do so amounted to a jurisdictional error (compare, for example, G v Minister for Immigration & Multicultural Affairs [2000] FCA 1595).

43    Third, it is not the appellant’s contention that the tribunal fell into jurisdictional error by failing to investigate or follow up concerns raised in the written submissions about the arrangements that are in place with Pakistan to ensure that failed asylum seekers who are involuntarily returned will not be at risk of harm on their return.

Did the tribunal require or expect the appellant not to unnecessarily disclose his drug and criminal history?

44    The findings of the primary judge that the appellant contends are affected by the alleged error are said to be contained in the following two paragraphs:

60.    I am not satisfied that the Tribunal adopted an implicit expectation that the Applicant would not or should not “unnecessarily” disclose his criminal record. Rather the Tribunal finding that there was no evidence that it would be necessary for the Applicant to disclose his criminal record on return to Pakistan is to be understood in context as a specific response to the Applicant’s unsupported assertion at the Tribunal hearing that he might be required to disclose his criminal record to potential employers or accommodation providers. The Tribunal found there was no evidence that he would be so required.

61.    It is clear that the Tribunal was deciding the issue on the narrow basis of the claims raised by the Applicant. In that context it considered whether in fact he would be required to disclose information about his past record when making applications for accommodation and employment (see SZATV at [89]). It found, in effect, that there was no evidence to indicate that he would be so required. Moreover, in contrast to the situation considered in Appellant S395/2002, the Tribunal did not go on to consider generally the position of former criminals in Pakistan. It was not obliged to do so because no claim was made on that more general basis. The principles in Appellant S395/2002 did not arise because the Tribunal was not requiring the Applicant to make any modification of his behaviour.

(Original emphasis.)

45    In SZATV at [89] Kirby J explained that the common feature of the two joint majority decisions in S395 was the need for the decision-maker to focus attention on the propounded fear of the individual applicant and whether that was well-founded. In other words, S395 is authority for the proposition that the question of whether a propounded fear of persecution is well-founded must be considered “on an individual basis and not, for example, by reference to a priori reasonable conduct that could or might avoid persecution”. The decision-maker was required to concentrate on what would happen to the applicant, rather than on what could or might happen if he behaved in a particular way which would reduce the risk of persecution, such as by behaving discreetly.

46    In the present case and in contrast to the position taken in the court below, it was common ground on the appeal that the appellant’s evidence was to the effect that he would only disclose his criminal history if asked about it. Shortly put, the appellant’s argument was as follows.

47    First, the material before the tribunal shows that the appellant’s concerns about disclosing his drug and criminal history were not limited to a fear of not being able to obtain employment or accommodation but were part and parcel of his claims to fear persecution as an outsider or an involuntary returnee.

48    Second, in RRT [28] the tribunal did not merely address the appellant’s concerns about the impact of disclosing his drug and criminal history when seeking accommodation or employment but made a general finding that the appellant would not unnecessarily disclose that history, including to the authorities at the airport upon his involuntary return to Pakistan or to anyone else who might be hostile to him as an outsider. Her Honour erred in taking a narrow view of the tribunal’s finding.

49    Third, noting that the tribunal had questioned the appellant about what he would say to an accommodation or employment provider if the subject came up, but did not question him about “the other areas where he might disclose the information”, there was a gap in the evidence which the tribunal filled (at RRT [28]) with a requirement to say nothing unless it were necessary.

50    Referring to the claims made in the statutory declaration annexed to his visa application, the written submissions filed for the appellant state:

The appellant went on to say that he would have a problem getting employment. He did not speak, read and write Urdu and had a criminal record for drug related offences. He then stated: “I will not be able to obtain employment and disclosing this information when trying to obtain employment or accommodation may actually put me at risk of being targeted”. It will be submitted that this targeting includes being targeted as an outsider and will be referred to as the “outsider claim”.

(Original emphasis.)

51    The “involuntary returnee” claim is that the appellant feared persecution upon his involuntary return to Pakistan. This is how it was put in the appellant’s written submissions:

The appellant’s advisor submitted that “having criminal convictions in Australia and being returned as an involuntarily returned failed asylum (sic) in Australia also puts the Applicant at risk of Convention related persecution and significant harm”: AB 184. The advisor expressed concern that the appellant did not know what information would be provided to the Pakistani authorities to arrange for his removal, including whether the appellant had a criminal record as this information might increase the risk of persecution by the Pakistani authorities in their suspicion and screening of involuntarily returned individuals: AB 194. The advisor submitted that knowing the basis on which the Pakistani authorities decided to penalise, scrutinise or detain an involuntarily returned person with a criminal record such as the appellant’s was essential to enable an assessment of the risk of Convention related persecution or other types of harm which would engage Australia's non-refoulement obligations: AB194-195. This claim will be referred to as the “involuntary returnee claim”.

(Original emphasis.)

52    The proposition that the appellant’s concerns about disclosing his drug and criminal history were not limited in the way the primary judge found was said to be supported by several documents.

53    First, the appellant pointed to the following passage in the statutory declaration annexed to his visa application, emphasising the emboldened parts:

Another problem that I will have in Pakistan is getting employment and accommodation. I do not speak, read and write Urdu. I have a criminal record for drug related offences. I will not be able to obtain employment and disclosing this information when trying to obtain employment or accommodation may actually put me at risk of being targeted.

(Emphasis added.)

54    The reference to the appellant’s illiteracy in Urdu was said to be a reference to his outsider claim, so-called. The appellant’s counsel, Mr Gormly, contended that the juxtaposition of these two matters in the one paragraph indicated that there was an overlap or relationship between the appellant’s criminal history and his claim to fear persecution as an outsider. For my part I do not see why the appellant’s statement that he cannot speak, read or write Urdu has any connection with any risk he may face by reason of his criminal history.

55    It is not entirely clear what the appellant meant in this passage. I will assume that by “at risk of being targeted” the appellant meant at risk of being harmed. I suppose that it is conceivable that the appellant was trying to say that by revealing his criminal history he would be exposed as a person who had spent time in Australia, he might be seen as a person who had been corrupted by the West, that this information might cause accommodation and employment providers to want to harm him, and that they might pass on the information to others who might be hostile to outsiders. But that was not how the appellant put his case. Nor was it what the tribunal took him to be saying. The tribunal explored the issue with the appellant during the hearing. After putting to him that his English language skills might be an asset to him in Pakistan, the tribunal asked him what he thought about that. The appellant’s reply tends to confirm the construction put upon his claim by the primary judge. He said:

I thought – yeah, maybe I thought because I’ve got a criminal record they won’t, I won’t be able to get employment disclosing that to my employer or for a house or anything like that.

56    The following exchange ensued:

Q. Why do you think that you would have to disclose your Australian criminal record?

A. Because I thought that’s, you know, I’d have to disclose it, I don’t know. I thought it was disclosed already.

Q. You think that they already know about it?

A. No, I thought well if I was to tell them that then they would know about it, yeah, yeah.

Q. I’m asking whether you--

A. Yeah.

Q. --is there any reason why you would tell them?

A. Well just because just telling the truth and I just, yeah, like I’ve got a record and that’s about it, cause I thought maybe they needed disclosure too.

Q. All right.

A. Yeah.

Q. So you don’t know what the situation is about that sort of thing in Pakistan, getting employment in Pakistan?

A. No.

Q. I don’t either. I know in Australia, if you were go for a job in a government agency--

A. Yep.

Q. --that they will ask you, and they often do police checks.

A. Yes.

Q. But I don’t think that that’s necessarily the case in the private sector.

A. Oh yeah. I just thought that maybe if you’re deported or something like that, you know, they would be aware about it or I don’t know much. Over there like the only jobs I can think of would be like in English speaking jobs. I’m not sure how, like the jobs work over there, like, like to be, you know, like it’s a pretty corrupt country so maybe they just give good jobs to people that they think, you know, they, they are known to them and, and, like I thought maybe if I want to try and go for a job like that, you know, they would have my criminal record, it would be disclosed that he was from overseas. Just with my accent and all that, you know, like I thought maybe just because of the way I speak they will be able to – yeah, I’m not sure.

Q. They will be able to what, make some inquiries about you do you think?

A. Yeah that’s what I think, yeah.

(Emphasis added.)

57    The appellant relied on the parts emphasised in [56] to submit that the appellant was telling the tribunal that he was afraid that “they’re going to know about it because he has been deported and the information will be out there”. During argument, however, he said that “they” was a reference to the employment and accommodation providers. While the appellant’s evidence is confusing (and, at times, arguably contradictory), I am not at all persuaded that the primary judge was wrong to conclude that the appellant’s concerns about his drug history and his criminal record becoming known were limited to the employment and accommodation context.

58    The appellant also pointed to the fact that his written submissions to the tribunal (prepared by his migration agent) included the following assertion under the heading “Persecution on the basis of political opinion/imputed political opinion”:

The Applicant claims that he fears persecution by Islamic extremists /fundamentalists in Pakistan because of his rejection of Islam, westernised values, behaviour and his imputed/political opinion (anti-religious fundamentalism, opposition to Islamic extremist/ fundamentalists, pro-Western countries).

(Emphasis added.)

59    The appellant contended that the word “behaviour” in this passage should be taken to include his criminal history. I am not persuaded by this argument either. In my view, this reference is far too vague to be of any assistance. It is not clear what was intended. More than likely this was merely a reference to what the appellant described in his statutory declaration as his “westernised way of being and dressing”.

60    The appellant also pointed to the following submission made to the tribunal by his migration agent:

We further submit that having criminal convictions in Australia and being returned as an involuntarily returned failed asylum [seeker] in Australia also puts the Applicant at risk of Convention related persecution and significant harm ...

In terms of an assessment of the risks that the involuntary removal of the Applicant as an involuntarily returned failed asylum seeker may trigger on arrival in Pakistan, it is important to consider that the Applicant does not know what information will need to be provided/disclosed to Pakistani authorities to arrange/attempt to arrange his removal from Australia to Pakistan.

For example, whether authorities will be told that the Applicant is held in an Immigration Detention Centre and has a criminal conviction …

Thus the risk of Convention related persecution or significant harm of the involuntary return of the Applicant may arise in Pakistan as a result of the Pakistani authorities’ actions/suspicions/screening of involuntary returned individuals, particularly those with a criminal record.

61    I accept that this does muddy the waters somewhat. But there are several answers to the appellant’s arguments.

62    First, the submission does not explain the connection between criminal convictions in Australia and being an involuntarily returned failed asylum seeker (a status that can be acquired for various reasons) or between criminal convictions and the risk of Convention-related persecution. The appellant submitted that “[t]he closest the submissions get … is in the third last paragraph, where the adviser says [t]he applicant would be at risk of [C]onvention related persecution or significant harm as an involuntary returned failed asylum seeker because of the views, suspicion, motives, action, practices of authorities of his or her country”. This passage gets nowhere near establishing a connection.

63    Second, the submission does not imply, let alone assert, that the appellant will have to disclose his drug and criminal history upon his involuntary return to Pakistan and that there is a real risk that he will come to harm if he does so. It is a frank acknowledgment that he has no idea what may happen to him. At the hearing in the tribunal the appellant’s migration agent accepted that there was no reason to believe that the appellant would be the subject of particular attention by authorities at the airport. She said that she had searched in vain for information that would support her submission.

64    In substance, the submission raised the possibility of a claim if information could be obtained to support it, but no such information was before the tribunal.

65    Third, the tribunal considered that the proposition that the appellant’s return to Pakistan would attract official attention was entirely speculative and the agent agreed.

66    As the Minister accepted, the tribunal may err if it assesses a refugee claim on the basis that an applicant is required or expected to take reasonable steps to avoid persecution if returned to his or her country of origin. The risk of harm must be assessed on the basis of what an applicant will do, rather than what he or she could or should do: S395 at [40], [50] (McHugh and Kirby JJ) and at [80], [82] (Gummow and Hayne JJ).

67    But the Minister contends that the tribunal did not impose such a requirement in this case. He argued that the tribunal’s finding at RRT [28] should be understood as a specific response to the appellant’s unsupported assertion that he might be required to disclose his criminal record to potential employers or accommodation providers or the authorities, noting the evidence that the appellant was unaware of whether disclosure was required in Pakistan. The Minister also contends that the appellant did not indicate that he wished or intended to make voluntary disclosure. In those circumstances, he argued that it could not be said that the tribunal required or expected the appellant to behave in a particular way. Rather, he submitted:

[I]ts finding that the Appellant would not be required to disclose his criminal history upon return to Pakistan was made upon the Tribunal’s assessment of what would happen, not what might happen if the Applicant took some step, in order to avoid harm, which he would otherwise not take. There is no error in this approach.

68    I respectfully agree.

69    In S395 the tribunal found that homosexual men in Bangladesh constituted a “particular social group” for the purpose of the Convention and that it was not possible to live openly as a homosexual without running a risk of serious harm. Noting that the visa applicants had hitherto lived discreetly and thereby avoided serious harm, it concluded that there was no risk of persecution if they continued to conduct themselves discreetly. The passage of the tribunal’s reasons that was challenged in that case was the tribunal’s statement that the men had

clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now” (S395 at [21]).

70    The majority disapproved of statements made in a series of decisions that asylum seekers are required or can be expected to take reasonable steps to avoid persecutory harm (at [48]–[50]; see also [80], [82]). But the Minister argued that the tribunal had not imposed a requirement that the men live discreetly; it had merely found that they would do so in the future, there being no reason to think otherwise. The High Court unanimously accepted this argument. The vice in S395 was different. The evidence in S395 indicated that the appellants might have been discreet about their relationship because they feared that otherwise they would suffer harm of the kinds suffered by homosexual men who were open about their sexuality. The majority of the court held that, having found that they would act in a way that would avoid persecution the tribunal erred by failing to consider why they would do so. In the present case, the tribunal did not find that, by not disclosing his drug and criminal history, the appellant would avoid persecution.

71    The parties in the present case accepted the following summary of the principles for which the S395 is authority given by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v VWBA [2005] FCAFC 175 at [6]:

(a)    The Tribunal will err if it assesses a claim on the basis that an applicant is expected to take reasonable steps to avoid persecution if returned to his or her country of origin. The Tribunal’s task is to assess what the applicant will do, not what he or she should do. See S395 at [40] and [50] per McHugh and Kirby JJ and at [80] and [82] per Gummow and Hayne JJ.

(b)    If the Tribunal finds that a person will act in a way that will reduce a risk of persecution that would otherwise have been well-founded, the Tribunal must consider why the person will act in that way. If it fails to do so, it commits a jurisdictional error. See S395 at [43] and [53] per McHugh and Kirby JJ and at [88] per Gummow and Hayne JJ.

(c)    The Tribunal will err if, having found that a person will act in a way that will reduce a risk of persecution, it does not go on to consider whether the person nevertheless has a well-founded fear of persecution because, despite the conduct that reduces the risk, there is still a real risk that the person will be persecuted. See S395 at [56] per McHugh and Kirby JJ and at [85]–[86] per Gummow and Hayne JJ.

(Original emphasis.)

72    Most of these issues do not arise on a consideration of the first ground of appeal in the present case. The tribunal did not assess the appellant’s claim on the basis that he was expected to take reasonable steps to avoid persecution if he were returned to his country of origin. That is, the tribunal did not assess what the appellant should (as opposed to would) do, in relation to the disclosure of his drug and criminal history, or require him to behave in any particular manner. RRT [28] contained nothing more than an observation about the state of the evidence and a finding of fact about the prospect of the appellant’s drug and criminal history becoming known.

73    Moreover, there is nothing in the documentation before the tribunal or in the transcript of the evidence to suggest that the appellant was concerned that, if his history of drug abuse or his criminal record became known to a potential employer or accommodation provider, somehow others, who were hostile to westernised Pakistanis, might come to know of it also and, as a result, cause him harm. The interpretation the tribunal put on this evidence was quite different. At [13] the tribunal summarised the evidence in this way:

The applicant also said that he will be unable to get employment in Pakistan, or to obtain accommodation because of his criminal record … When I asked why he thought his criminal record would become known, he responded that he does not know how it works in Pakistan, that it is pretty corrupt so maybe they only give jobs to people they know, or maybe because he looks Westernised they will ask questions or they will find out when he returns.

74    The tribunal’s finding at RRT [28] must be read in context. This is part of that context. It is apparent that the tribunal took the appellant to be saying that he feared his drug and criminal history would preclude him from obtaining work or housing and no more.

Did any such requirement or expectation relate to conduct which “was the foundation for a claim to protection for one of the reasons within the Refugees Convention”?

75    Having regard to my conclusion on the first ground of appeal, it is strictly unnecessary to answer this question but in deference to the argument and, in case my conclusion about the first ground is wrong, I will do so.

76    The alleged error with which this ground is concerned was said to be found in [76] of the primary judge’s reasons where her Honour observed:

The [appellant] did not suggest that he feared persecution by reason of his membership of a particular social group or that his claims in relation to his criminal history and/or drug use had any nexus with religion, race or actual or imputed political opinion (see SZSCA).

77    The reference to SZSCA is to the Full Court’s decision in Minister for Immigration and Border Protection v SZSCA (2013) 308 ALR 18; [2013] FCAFC 155, which her Honour had earlier discussed. In that case the applicant claimed that he feared persecution by reason of his membership of a particular social group (truck drivers who transport goods for foreign agencies) and also because of his imputed and actual political opinion (as a supporter of foreign agencies).

78    The appellant submitted that the tribunal’s approach was inconsistent with the principle in S395, that is, that a tribunal will err if it assesses a claim on the basis that an appellant is expected to take reasonable steps to avoid persecution in his/her country of origin. The appellant submitted that the primary judge failed to recognise that the appellant’s criminal history was a part of his Convention-related outsider and involuntary returnee claims – i.e. claims to fear persecution on the basis of religion, imputed political opinion and membership of a particular social group of outsiders with a drug and criminal history or involuntary returnees with a drug and criminal history.

79    It was not suggested in either the visa application or the submissions made to the delegate or the tribunal that the appellant claimed to fear persecution as a member of a social group. Further, neither the delegate nor the tribunal considered the appellant to have made such a claim. I accept, of course, that proceedings before the tribunal are inquisitorial in nature, that the applicant has no onus of proof in the orthodox sense, and that the arguments and evidence of the parties cannot narrow the tribunal’s jurisdiction: see, for example, S395 at [39]. But in his application to the Federal Circuit Court the appellant did not contend that in proceeding in this way the tribunal fell into jurisdictional error. And no application was made to amend the notice of appeal or for leave to raise this matter as an issue on the appeal. Mr Gormly did not submit that it was expedient in the interests of justice that this question be decided on appeal: O’Brien v Komesaroff (1982) 150 CLR 310 at 319; H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348 at [6]–[8]. In the light of the observations of the primary judge, it is difficult to resist the conclusion that this aspect of the appeal was merely opportunistic.

80    It follows, as Mr Gormly accepted, that the question is whether the appellant’s drug and criminal history was a foundation or integer of the appellant’s claim to fear persecution for reasons of political opinion (actual or imputed) and/or religion. The answer is that it was not. On no reasonable view of the material before the tribunal could it be said that the appellant had raised a claim that his stated fear of being targeted because of his criminal and drug history had any connection to his claims to fear persecution because of his imputed political opinion and/or his religious beliefs. The tribunal asked him about his political opinions:

Q.    In the written submissions that Ms Stotts provided for you she said that one of the things that will happen to you if you go back to Pakistan is that you will not be able to freely express your political opinions.

A.    Yes.

Q.    So I wanted to ask you to explain to me what are your political opinions or what are the political opinions you hold that you would be reluctant to express if you were in Pakistan?

A.    Because, you know, like here you’ve got a chance to speak about everything and like you’ve got a freedom of speech. Over there I’m not sure how it works, like I’m not sure if you’re able to say something without, you know, someone, you know what I mean, doing something to you about it or I’m not sure how, like, yeah, like here the way I’ve been brought up it’s all multicultural Australia, you know, everyone respects everyone for their religion, their views, everything. But I’m not sure how it would work over there and I’m, yeah, it just sort of worries me a bit.

Q.    Are there any particular political opinions that you hold that you would express in Pakistan and it might cause trouble?

A.    Yeah, like if I was to, you know, say something about the way, the way their law is or the way that, the way that things are, I think I would be, I would be in trouble if I was to like go out of my way to talk about it, you know.

81    The appellant did not relate his political opinions to his drug and criminal history or suggest that he would be stifling those opinions if he had to disclose that history. Nor was there evidence or other material to connect the drug or criminal history to any imputed political opinion.

82    Furthermore, there was no evidence or other material to suggest that any “unnecessary” disclosure of his drug and criminal history would expose him to harm from religious extremists.

83    On a fair reading of the material before the tribunal the appellant did not claim that his rejection of Islam or his imputed political opinion (of opposition to fundamentalism and Islamic fundamentalists and support for Western values) had anything to do with his drug and criminal history. Nor did the tribunal assess the appellant’s claim on the basis of an expectation that he take reasonable steps to avoid persecution in Pakistan. The case the appellant put to the primary judge and to this Court was strained to say the least, if not contrived.

Conclusion

84    It follows that the appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    12 September 2014