FEDERAL COURT OF AUSTRALIA

BAO16 v Minister for Immigration and Border Protection [2018] FCA 1463

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court of Australia on 23 June 2017, including as to costs, be set aside, and in lieu thereof:

THE COURT DECLARES THAT:

1.    The International Treaties Obligations Assessment made in relation to the appellant on 20 April 2017 was not made in accordance with law.

THE COURT ORDERS THAT:

1.    The first respondent pay the applicant’s costs of the amended application for judicial review, as agreed or assessed.

3.    The first respondent pay the appellant’s costs of the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 23 June 2017. The Federal Circuit Court dismissed the appellant’s judicial review application, challenging the legality of the decision of an assessor who conducted an International Treaty Obligations Assessment (ITOA) in respect of the appellant for the purpose of determining whether Australia has non-refoulement obligations. The assessor, an officer of the first respondent’s Department, had determined that Australia did not owe the appellant any such obligations. The judgment of the Federal Circuit Court has the citation BAO16 v Minister for Immigration and Another [2017] FCCA 1408.

2    For the following reasons, I would allow the appeal.

Summary of the background facts

3    The appellant is a citizen of Pakistan, who arrived at Christmas Island by boat on 24 December 2010. An ITOA began on 15 June 2015 to determine whether the appellant was a person in respect of whom Australia has non-refoulement obligations under the following international instruments:

(a)    1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees, in force from 22 April 1954 and 4 October 1967 respectively (Refugees Convention);

(b)    Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in force from 26 June 1987 (CAT); and

(c)    International Covenant on Civil and Political Rights, in force from 23 March 1976, including its Second Optional Protocol, in force from 11 July 1991 (ICCPR).

4    Broadly speaking, a non-refoulement obligation is engaged if the level of risk to a person such as the appellant if forcibly returned to a place meets one of the following treaty-specified thresholds:

(a)    the life or freedom of a person would be threatened, if forcibly returned to that place, on account of that person’s race, religion, nationality, membership of a particular social group or political opinion: see article 33(1) of the Refugees Convention;

(b)    if forcibly returned to that place, that there are substantial grounds for believing that the person would be in danger of being subjected to torture: see article 3 and the definition of “torture” in article 1(1) of the CAT; or

(c)    that to protect that person’s right to life, or to prevent that person from being subjected to torture or to cruel, inhuman or degrading treatment or punishment (see articles 6(1) and 7 of the ICCPR), it is necessary that the person not be forcibly returned to that place.

5    Before the assessor, the appellant claimed to have a well-founded fear of persecution by the Taliban in Pakistan due to:

(a)    his imputed political opinion of opposition to the Taliban and support for the Pakistani authorities;

(b)    his status as a returnee from the West to Khyber Paktunkhwa Province (KPK), formerly known as the North West Frontier Province (NWFP); and

(c)    his Sunni Muslim religion and Pashtun ethnicity.

6    In particular, the appellant claimed that:

(a)    one of his brothers was a driver in the Pakistani army;

(b)    soon after visiting his sister in a village in the KPK in 2010, the Pakistani army raided a nearby area and arrested or killed members of the Taliban;

(c)    relatives of Taliban members involved in the raid accused the appellant of being a spy or informant and blamed him for the raid;

(d)    the appellant was subsequently kidnapped by the Taliban and later released on condition that he surrender his army brother to the Taliban; and

(e)    he fled to Malaysia, but was targeted by people with connections to those who had accused him of being a spy and he returned to Pakistan before arranging his departure for Australia.

7    The appellant further claimed that:

(a)    another brother and that brother’s wife went missing during a raid by the Pakistani army in the KPK in 2008/2009, and that the appellant feared that they had been killed or taken away by Taliban (with the uncertainty as to year apparently stemming from the assessor’s reasons); and

(b)    a teenage boy associate with the Taliban “beat up” his daughter in 2015, and his wife had “been told by neighbours that the boy’s father was killed by the Pakistani army”.

8    In a written statement dated 17 July 2015, the appellant also claimed that his return would breach s 36(2)(aa) of the Migration Act 1958 (Cth), “which incorporates the non-refoulement obligations derived from the ICCPR and CAT, for the following reasons”:

a)    My mental illness places me at a greater risk of suffering significant harm; and

b)    My status as a failed asylum seeker from a Western country also increases my chances of discriminatorily being exposed to significant harm.

9    The appellant also claimed that:

a)    My family … is well known in the … area. Since my arrival in Australia, my youngest brother … has been increasingly involved in anti-Taliban activities in this area. This has led to a presumption within that area that all members of my family are anti-Taliban. I additionally fear persecution on the basis that, as a member of [my] family, I am imputed with anti-Taliban political opinion.

b)    I suffer from serious mental health concerns which have resulted in two hospital admissions and multiple suicide attempts, for which I am currently undergoing treatment. This increases the risk to me of suffering significant/serious harm should [I] return to Pakistan. (See the latest country [sic] on mental health services in Pakistan below).

c)    My poor mental health is relevant to the questions of relocation. It is our submission that relocation to any part of Pakistan is unreasonable, in the sense it is impractical, in the context of my circumstances.

d)     Pakistan’s state authorities will not or cannot provide citizens in the position of me with the level of protection which they are entitled to expect according to international standards.

10    In August and September 2015, the appellant gave the assessor medical records in relation to his mental health claims, indicating depression and post-traumatic stress disorder.

11    In written submissions dated 24 March 2016, the appellant stated that he believed that the attack on his daughter was related to the attack on him in 2010 “in that both attacks were by supporters of the Taliban and inflicted because of [his] perceived support for the Pakistani army”. In an earlier interview with the assessor on 22 September 2015, the appellant claimed that his daughter’s assailant was the “son of a Talib”. The appellant also re-iterated that he was suffering from mental illness, which affected the reasonable practicability of his relocation in Pakistan, since he would be unable to access appropriate medical services in Pakistan.

The assessor’s decision

12    The reasons for the assessor’s decision that Australia does not have non-refoulement obligations with respect to the appellant (ITOA decision) commenced by setting out the appellant’s migration history, the purpose for which the ITOA was being undertaken, Australia’s non-refoulement obligations, the material that was before her, and the appellant’s claims.

13    The assessor found that the appellant was a national of Pakistan and that Pakistan was the relevant country “for the purpose of assessing whether the claimant engages non-refoulement obligations”.

14    Under the heading “Procedural fairness”, and before expressly addressing the appellant’s claims, the assessor dealt with a range of matters. Amongst other things, she referred to the Departmental correspondence and the appellant’s claims and submissions. In this discussion, there were also what the assessor described as “conclusions” about some of the appellant’s claims. Referring to the appellant’s submission dated 17 July 2015, the assessor stated that:

… as the information was intended as a response to the [ITOA] commencement letter and as such [the claimant’s] specific claims for persecution are stated in that submission is [sic] stated briefly here:

•    He fears persecution from the Taliban for reasons of his religion as a Muslim Sunni, his Pashtun race, his imputed political opinion as being a collaborator or spy for the Pakistani authorities or for being critical of the Taliban.

•    His membership of a particular social group, a Sunni Pashtun originating from North Western Frontier Province or areas known to have a strong presence of Taliban insurgents and a returnee from a Western country returning to areas with strong presence of anti-West extremist groups.

•    Discussion of previous decisions relating to his claims and the claimant’s testimony with country information regarding relocation, security, non-state agents and state protection.

•    Australia’s non-refoulement obligations and treaties and sections of the Migration Act have also been outlined.

•    [The claimant] provided his medical reports and psychiatric history.

Other information provided by the claimant regarding his family members.

•    [The claimant] claims that another brother and his wife went missing in 2008 and is unaware if they are dead or missing.

Conclusion

I am unable to deduce or conclude what has occurred in this instance as [the claimant] has not submitted any evidence.

•    [The claimant] claims that his daughter was beaten up by a young lad in August 2015. His wife told the claimant that she is unaware of the boy’s name but was told by neighbours that his father was killed by the Pakistani Army. [The claimant] submits that both attacks were by supporters of the Taliban and inflicted because of his perceived support for the Pakistani army.

Conclusion

I am not able to support [the claimant’s] speculation of why his daughter was attacked by a 14 year old boy; nor has there been any evidence submitted to indicate an attack took place.

(Underlining added)

15    The observant reader will see that, at this point, the assessor apparently rejected the last-mentioned claims on the basis that there was no evidence presented in support.

16    Also under the heading, “Procedural fairness”, the assessor detailed what she termed the “adverse information put to the [claimant]” in correspondence and at the ITOA interview and set out his responses. The adverse information was in the nature of country information. Immediately after the assessor’s descriptions of the “adverse information” and the responses, the assessor set out the following list of “Conclusions” (but still under the heading of “Procedural fairness”).

Conclusions

•    The claimant has completed year 12 high school and has been self-employed over many years in Pakistan and Malaysia.

•    [The claimant] speaks Pashtu and Urdu as well as Malay and English (fair), having lived in Malaysia and Australia each respectively for five years.

•    I consider the claimant to be literate with employment skills.

•    [The claimant] has two brothers who are presently working and residing legally in Malaysia.

•    Another brother … has been employed as a driver in the Pakistan Army … .

•    His eldest brother and wife have been missing since 2008 in a suspected Taliban attack.

•    The country information submitted by the claimant does not indicate that women in Pashtun culture would not be blamed for spying.

•    His family remain unharmed and have not been targeted for harm by the Taliban in the six years he has been absent from Pakistan.

•    Pakistan has a large Pushtun population and is a dominant Muslim Sunni country which has a Constitution which allows for movement within.

•    [The claimant] is a Pashtun Sunni Muslim.

•    [The claimant] has stated that his mental health needs and financial situation will be of ongoing concern if returned to Pakistan.

•    [The claimant] has provided little evidence he would be unable to resettle in Pakistan, given his range of languages and work related skills.

•    The claimant did not raise specific claims that he would be at real risk of being subject to the death penalty or being tortured in Pakistan by State authorities.

•    The claimant has travelled to and from Pakistan on several occasions. He has not claimed any harassment or interest from the Pakistan immigration or security umbrella upon arrival or departure from the airports in Pakistan even though he entered Pakistan on a false passport which was confiscated.

•    I find the claim of being kidnapped by the Taliban, released unharmed in order to surrender his brother to the Taliban to face certain death without any further threat in the past six years to his own family lacking credibility.

•    I find that the claim of being targeted in Malaysia on two occasions to be an embellishment of his claims.

•    Having claimed three targeted attacks on his life the claimant then chooses to return to the KPK, Pakistan. This indicates to me that he does not hold a fear of non-state actors in the KPK.

(Underling added)

17    Under the next heading, “Findings of fact”, the assessor set out her understanding of the legal framework pursuant to which she was to determine whether the appellant was a refugee. The assessor noted that this determination “may require a decision-maker to assess the credibility of a claimant’s testimony”. The assessor added:

When assessing credibility, a decision-maker must be sensitive to the difficulties often faced by asylum seekers and the benefit of the doubt should be given to those who are generally credible, but are unable to substantiate all of their claims.

However, a decision-maker is not required to accept uncritically any and all allegations made by a claimant, nor is it necessary for a decision-maker to have rebutting evidence before he or she can find that a particular factual assertion by a claimant has not been made out. Nor is a decision-maker required to accept claims that are inconsistent with the independent evidence regarding the situation in the claimant’s country of nationality.

[The claimant] claims that many people in [villages] know each other and many have relatives working in Malaysia. He claims to know a lot of people in both villages and that everyone knows his brother is in the army. I consider that as people would be aware of his absence whilst working in Malaysia it would not be considered unusual for him to be visiting his sister … upon his return as he had done so previously.

I note that as everyone knows his brother is in the army …; there has not been any attempt to kidnap or harm any other member of the family to induce them to submit him to the Taliban [during his army service].

The premise that the Taliban would not harm the claimant if they thought he was in fact a spy but release him unharmed with the view to then killing both the claimant and his brother upon their return is incredulous given the country information on the Taliban’s activities.

Having made this claim of targeted harm to himself and his brother the claimant then goes to Malaysia where he asserts he is again unsuccessfully targeted on two occasions. Adding to the incredulity of the claims he then chooses to return to the KPK in Pakistan. Yet he claims to fear harm from non-state actors who will find him anywhere if he is returned to Pakistan.

On the evidence before me I accept the following:

•    [The claimant] is a citizen of Pakistan.

•    He is a Pashtun Sunni Muslim.

•    He speaks Pashtu, Urdu, and Malay and has a fair grasp of English.

•    He is in debt financially due to his departure from Pakistan to Australia.

•    He is educated and has worked in Malaysia for 5 years where he claims 100,000 people from … reside.

•    His brothers are working legally in Malaysia.

•    He has spent five years in Malaysia where he lived and worked with other extended family members.

•    Individuals are not subject to discrimination or violence in Pakistan on the basis of having spent time in the West.

•    He has mental health issues since arriving in Australia.

I do not accept that:

•    He was targeted by the Taliban for being a spy.

•    He was targeted for having a brother in the Army.

•    He was kidnapped by the Taliban in Pakistan.

•    He was targeted in Malaysia on two occasions.

•    He needs to relocate if returned to Pakistan.

(Underling added)

18    Under the heading “Identity finding”, the assessor again found the claimant to be a Pakistani national and a Pashtun Sunni Muslim.

19    In the next section, headed “Refugee assessment”, the assessor set out the definition of “refugee” in article 1A(2) of the Refugees Convention, and also referred to ss 5H and 5J of the Migration Act. The assessor re-iterated the appellant’s claims, and stated:

In consideration of failed asylum seeker/returnee and/or returnee from Australia/the West, the claimant considers he may be imputed with a political opinion having lived in the west and be seen as a supporter of the West; as such I will not consider under membership of a particular social group.

In consideration of the membership of a particular social group ‘member of his own family’ I consider that the claimant may be imputed with an anti-Taliban opinion given his brother’s employment in the Pakistan Army. In view of this I will consider imputed political opinion and not ‘member of his own family’ under particular social group.

The claimant claims to fear harm in relation to his profile as a Sunni, Pashtun from the NWFP as it is an area with a strong presence of Taliban insurgents and supporters. This claim is based on other Pakistan citizens knowing the claimant to be from the KPK and imputing him with a pro-Taliban political opinion.

Finding

I find that the Refugee Convention grounds of race and/or religion and/or, imputed political opinion are the essential and significant reasons for the feared harm pursuant to paragraph s5J(1)(a) and s5J(4)(a) of the Act.

20    Under the heading “Does the harm feared for a Refugee Convention reason amount to persecution?”, the assessor found that “the harm feared is serious and does involve systematic and discriminatory conduct pursuant to paragraphs 5J(4)(b) and 5J(4)(c) of the Act” and that “the harm amounts to persecution”.

21    Under the heading “Is the fear well-founded?”, the assessor repeated in substance a number of findings relating to the appellant’s identity, history, and claims. Referring to his claim that “he has a brother who has been in the army”, the assessor stated that:

I have no convincing information or evidence which confirms or denies that [the claimant] has a brother in the Pakistan Army. However if his brother’s employment was an issue I conclude that the Taliban have had many years to target all members of [the claimant’s] family but have not done so … .

… I give weight to the country information submitted by the claimant citing the Taliban’s response in seeking revenge … by violent means without fear of the consequences. I find the claim of being kidnapped by the Taliban, released unharmed in order to turn his brother into the Taliban to certain death; without any further threat in the past six years to his own family lacking credence.

… I consider [the claimant’s] testimony of being targeted three times by the Taliban or relatives of the Taliban and then choosing to return to … the KPK to be unpersuasive to his claimed fear of harm from Taliban in the KPK and in Pakistan as a whole.

[The claimant’s] testimony has not been substantiated by country information in relation to the Taliban’s actions against a person they consider to be a spy, improved security in the KPK with internally displaced persons returning and his own family remaining housed and unharmed in the six years since his departure.

…

The claimant has departed from and returned to Pakistan several times from 2005-2010 and has since been in Australia for the past five years. He claims that there are many people from [his District] in Pakistan who are residing and working in Malaysia.

Therefore it would not be considered a unique or unusual experience for relatives to be returning to [that District] from overseas. DFAT country information states that many Pakistanis have relatives living abroad and the claimant speaks Urdu and English which are both recognised as official languages.

I do not consider that the claimant would be targeted for returning to Pakistan from Australia as a returnee or as a failed asylum seeker.

Finding

I do not consider [the claimant] would be targeted for his political and/or imputed political opinion if returned to the receiving country.

(Underling added)

22    The assessor went on to find that the appellant would not be “targeted for harm based on his race or his religion” upon return to Pakistan.

23    Turning to the appellant’s mental health, the assessor noted that the appellant had provided medical reports and psychiatric history. The assessor recorded that:

DFAT Country information for Pakistan regarding health care and emergency relief in Pakistan indicates that it suffers from a lack of funding and has limited capacity with provincial government being responsible. …

Country information reports that Pakistan has a multi-tiered and mixed health care delivery system that has grown exponentially during the past three decades which are supported by different levels of government. …

Finding

I do not consider that [the claimant] would be denied access to any health or medical service in Pakistan for a convention reason. I consider that [the claimant] with the support of his family would be in a position to access health services and obtain medication if required in the receiving country.

24    The assessor also considered the situation in the KPK, concluding that she did “not accept that [the claimant] has been personally targeted for harm by non-state actors for his imputed political opinion or his family’s political opinion”. She added:

I do not foresee that [the claimant] will be targeted for harm for a political reason if returned to Pakistan.

[The claimant] has raised the practicability and impact of relocation for his wife and children. As I have found that there is no fear of harm in the receiving country for [the claimant] and as the family continue to reside in [the District] unharmed after six years since [the claimant’s] departure for Australia I consequently have not considered the adequacy of relocation or state protection.

Finding on well-foundedness

I find that the claimant does not have a well-founded fear of being persecuted for a Refugee Convention reason. I therefore find the claimant’s fear of persecution, is not well-founded.

(Underling added)

25    The assessor held that the claimant did not fall within article 33(2) of the Refugees Convention. Her finding under the Refugees Convention was that the claimant was not a refugee, as defined in article 1A(2).

26    The assessor then turned to consider “Australia’s non-refoulement obligations under the CAT and the ICCPR”. The assessor stated:

Australia’s non-refoulement obligations under the CAT and ICCPR arise where there are substantial grounds for believing that, as a necessary and foreseeable consequence of a person being removed from Australia to a receiving country, there is a real risk the person will suffer significant harm.

She referred to ss 36(2)(aa) and 36(2A) of the Migration Act.

27    Turning to the issue of significant harm, the assessor recorded that “[t]he claimant fears death or torture at the hands of non-state actors who seek revenge”. The assessor continued:

As I have found that the claimant is a Pakistan citizen, I consider he would have access to the same level of mental health services available to other citizens. I acknowledge that treatment plans have been recommended by mental health professionals in Australia but there is no reasons to consider he would be denied treatment normally available to Pakistan citizens. I consider if the claimant returns to Pakistan he would be able to access a reasonable level of mental health services to treat any mental health issues he suffers from.

28    Although the assessor went on to find that the claimed harm was significant harm within s 36(2A) of the Migration Act, she held that there was no real risk that the appellant would suffer such harm. She stated:

In examining the claimant’s submissions and testimony as set out above, I do not accept that claims were advanced under Complementary Protection that had not also been put forward and assessed under the Refugees Convention. I note it was found at the Federal Court in the case of Minister for Immigration and Citizenship v SZQRB 2013 that the test for significant harm under Complementary Protection is whether there is a ‘real chance’ the claimant will suffer significant harm (as that is defined in s 36(2A) of the Migration Act), were the claimant to be returned to their receiving country. I note that this equates the test of ‘real risk’ with ‘real chance’.

I find there are not substantial grounds for believing that, as a consequence of the claimant being removed from Australia, there is a real risk that the claimant will suffer significant harm. I note that the claimant previously reside in KPK Pakistan and his family remain there still. I consider he would be able to reside there again.

29    Accordingly, the assessor concluded “I consider there is not a real risk that the claimant will suffer significant harm if removed to a receiving country”. She was “not satisfied that the claimant has a real chance of being subject to significant harm should he be returned to Pakistan” and was “not satisfied that [he] is a person in respect of whom Australia has non-refoulement obligations under the CAT and ICCPR”.

The Federal Circuit Court proceedings

30    On 4 May 2016, the appellant applied to the Federal Circuit Court for judicial review of the assessor’s decision. In an amended application, the appellant advanced the following grounds of judicial review:

Ground 1:

The Second Respondent made an error of law with respect to its consideration of whether there was a “well-founded fear of being persecuted” by considering whether the Applicant “would be” persecuted rather than whether there was a “real chance” that the Applicant would be persecuted.

Ground 2:

The Second Respondent made errors of law by not accepting the Applicant’s claims that:

(a)    in 2008, his brother and wife went missing; and

(b)    in 2015, his daughter had been beaten up by a young boy whose father had been killed by the Pakistan army,

because the Applicant did not adduce any evidence to corroborate them.

31    Although the appellant set out a third ground in his amended application, he did not ultimately pursue it in the Federal Circuit Court.

32    The primary judge rejected the first ground. His Honour did not accept that the assessor had required the appellant to prove a greater likelihood of persecution than was required by the correct application of the “real chance” test. His Honour stated (at [41]) that:

In order to assess the decision as a whole, it is necessary to have regard to the findings of fact made by the assessor in respect of the applicant’s claims. The “would be” language is not being applied where the decision-maker is making findings about a specific piece of evidence or a particular aspect of a claim, as occurred in NABB [of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 225], rather it is being applied where the assessor is referring to final findings of discrete claims being made by the applicant.

33    After reviewing the assessor’s findings about the appellant’s claims, the primary judge found (at [52]-[54]) that:

Ultimately, the assessor made findings of fact rejecting all of the applicant’s claims of having been targeted for harm prior to leaving Pakistan. On the evidence before it, the assessor was unable to make findings in relation to harm inflicted to his family members in Pakistan.

Having regard to the applicant’s evidence and country information in relation to the security situation in the applicant’s place of origin, the assessor was not satisfied that the applicant would be threatened or harmed on return to Pakistan for a Convention reason. The assessor concluded her review of the applicant’s claims with the finding that “the claimant does not have a well-founded fear of being persecuted for a Refugee Convention reason”.

When considering the decision as a whole it appears clear that the assessor did not accept that there was a factual foundation for the applicant’s claims. This was not a case where a risk was found and the Tribunal assessing whether it was a “real risk” but a case where the Tribunal rejected the claims of risk. Thus, I am not persuaded that the infelicitous language in the body of the decision provides a basis for finding jurisdictional error.

34    The primary judge also rejected the second ground. His Honour did not accept that the assessor had made an error of law by not accepting the appellant’s claims as to (a) his missing brother and sister-in-law or (b) his daughter’s injury, because of the appellant’s failure to adduce corroborative evidence. The primary judge concluded (at [62]) that:

The difficulty faced by the applicant in the present case is that he was unable to give evidence of these matters as they were not within his own knowledge. That is, he is relying on information from others and his own speculations or assumptions. These claims were mere assertions, not matters he could give evidence about. Regardless of the rules of evidence (which do not bind the assessor), logically there remained no direct evidence as to the relevant facts. A fair reading of the decision shows that the assessor did not accept the applicant’s assertions and speculations, noting (as part of the reasons) that there was no direct evidence of the facts (or of facts that would provide a circumstantial evidentiary basis). This is quite different to a decision maker proceeding on the basis of requiring corroborative evidence. I therefore find that the applicant has not made out this ground.

35    Accordingly, the primary judge dismissed the appellant’s application.

The Appeal

36    This is an appeal from that judgment. The grounds of appeal as set out in an amended notice of appeal were as follows:

1.    The learned Judge erred in finding that the International Treaties Obligations Assessor (the Assessor) did not commit jurisdictional error by failing to assess whether there was a “real chance” that the Appellant would be persecuted in Pakistan and instead asking whether the Appellant “would be” or “will be” persecuted.

Particulars

The Assessor’s Decision dated 20 April 2016 (the Decision) refers to whether the Appellant “would be” or “will be” targeted for persecution: see Decision at pages 21, 22, 23 and 27. The Decision does not refer to the “real chance” test in assessing the Appellant’s Convention-based claims.

2.    The learned Judge erred in his approach to what constituted evidence and claims in the context of decision-making by the Assessor.

Particulars

The Appellant gave evidence at the hearing before the Assessor about his daughter being attacked in Pakistan. The Assessor wrongly concluded that no evidence had been submitted that an attack on his daughter took place.

The Appellant claimed that his brother and his wife went missing in 2008 and he was unaware if they were dead or missing. The Assessor found that the Assessor was unable to deduce or conclude what had occurred in this instance as the Appellant had not submitted any evidence.

The Assessor wrongly concluded that there had not been any claimed incident of harm against the Appellant’s family members by the Taliban in the past six years.

The court below erred in concluding at [62] of the judgment that the Appellant was unable to give evidence about the matters particularised above because they were not within the Appellant’s own knowledge and that there was no evidence before the Assessor of facts, or of facts that would provide a circumstantial evidentiary basis, in relation to these matters.

The Parties’ Submissions

Ground 1

37    The appellant contended that the Federal Circuit Court erred in rejecting his submission that the assessor failed to apply the correct “real chance” test in determining whether the appellant had a well-founded fear of persecution. The appellant submitted that it could be inferred from the assessor’s reasons that the assessor did not apply the correct test, because she did not expressly refer to the “real chance” test except with respect to the different issue of complementary protection, and the reasons addressed the wrong question – whether the appellant “would be” persecuted and “will be” targeted.

38    In support of this submission, the appellant submitted that there was evidence before the assessor that the appellant’s family had been exposed to harm by the Taliban and, having regard to that evidence, that there was a more than theoretical possibility of the appellant being subjected to harm in Pakistan. The appellant submitted that the assessor erroneously applied a higher threshold than a “real chance” to assess whether the assessor was satisfied that the appellant faced a relevant risk of harm. The appellant submitted that it was not enough to say, as the primary judge did, that the assessor had dismissed the factual foundation for the appellant’s claims and that there was, therefore, no discernible jurisdictional error.

39    Relying on Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, the respondent Minister submitted that if the assessor’s reasons were read fairly and as a whole, then there was no reviewable error. Rather, such a reading showed that the assessor was aware of the relevant test. The Minister noted that the assessor set out the definition of “refugee” in article 1A(2) of the Refugees Convention and also referred to ss 5H and 5J of the Migration Act. The Minister also submitted that the assessor’s reasons made it clear that the assessor was aware of the correct test for complementary protection and, in that context, correctly observed that, in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505, the concept of “real risk” for complementary protection had been equated with “real chance”.

40    The Minister submitted that in reaching the conclusion that she was not satisfied that the appellant had a well-founded fear of persecution by the Taliban in Pakistan, the assessor first made factual findings rejecting, on credibility grounds, the appellant’s claims of past harm. In particular, the assessor did not accept the appellant’s claims that he or his family had been targeted or mistreated by the Taliban in the past. It was in the context of the assessor’s overall rejection of the appellant’s claims of past harm that the assessor considered the prospect of harm to the appellant in future. The comprehensive rejection of the appellant’s factual claims explained, so the Minister said, why the assessor said that she did not consider that the appellant “would be” targeted for his political opinion on return to Pakistan. The Minister made the same submission in effect about the other occasions in which the assessor had used the same, or like, language. As to the assessor’s statement that the appellant “would be in a position to access health services and obtain medication if required” in Pakistan, the Minister stated that this should be understood as stating “factual findings about the situation in existence now and into the reasonably foreseeable future” if the appellant were to return to Pakistan.

41    After referring to the authorities, including Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 at 572-573, VSAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1602 at [25] and NABB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 225, the Minister submitted that the assessor’s formulation, whether the appellant was “at risk” of persecution, was not inappropriate in all the circumstances and indicated that the assessor was looking at a real or substantial basis for risk. The Minister submitted that, given the assessor’s rejection of the factual foundation for the appellant’s case, the assessment she made was open to her, and the making of the findings did not, in the context of her overall consideration of the appellant’s claims, demonstrate any departure from the proper application of the correct legal test.

Ground 2

42    The appellant submitted that error was disclosed in the assessor’s treatment of the appellant’s claims in the following statements:

(a)    in respect of the claim regarding the appellant’s brother and his brother’s wife, that the assessor was “unable to deduce or conclude what has occurred in this instance as [the claimant] has not submitted any evidence”;

(b)    in respect of the claimed attack on the appellant’s daughter, that the assessor was “not able to support [the claimant’s] speculation of why his daughter was attacked by a 14 year old boy; nor has there been any evidence submitted to indicate an attack took place”; and

(c)    that “[t]here has not been any claimed incident of harm against his family members by the Taliban in the past six years”.

43    The appellant submitted that the statement made by him in February 2011 that he did not know “if [his] brother and his [brother’s] wife were killed or taken away by the Taliban and are missing” was relevant evidence for the purposes of the ITOA process that could have led the assessor to conclude that they have been abducted or killed. The appellant referred to the fact that the appellant’s 2 December 2011 letter to the Department affirmed that the appellant’s brother and sister-in-law had gone missing in 2009 after a raid by the Pakistani army. In this context, counsel for the appellant submitted that “[i]f someone goes missing in a Taliban area where there’s violence occurring, and is never seen again by his own brother, … an inference can be drawn that the reason that he has never seen his brother and his sister-in-law again is because they were killed or abducted or injured and left to die, or fled, because of persecution”.

44    The appellant submitted that the assessor did not properly engage with the appellant’s evidence. He noted that there was no discussion in the assessor’s reasons of what might have been considered evidence for this claim (or indeed for the appellant’s further claim about the attack on his daughter).

45    The appellant submitted that the assessor’s reasons indicated that the assessor insisted on corroboration. The appellant argued that the assessor’s insistence on corroboration “imposed an unreasonably high standard of satisfaction, which failed to take into account that the appellant’s own written and oral evidence were primary evidence of the claimed events”. The appellant submitted that this involved an error of law amounting to jurisdictional error, citing Eshetu v Minister for Immigration and Ethnic Affairs [1997] FCA 19; 142 ALR 474 at 485 and Machmud v Minister for Immigration and Multicultural Affairs [2001] FCA 1041 at [16].

46    The appellant noted the confusion in the assessor’s statements, first, that she could not determine what had happened to the appellant’s brother and sister-in-law and yet she subsequently affirmed that “[h]is eldest brother and wife have been missing since 2008 in a suspected Taliban attack”. The appellant noted that, under the heading “Conclusions”, where this last-mentioned statement appears, the assessor was referring to both claims and factual conclusions, which made it very difficult to determine what the assessor had or had not considered.

47    The appellant further submitted that the statements made by him at interview in 2015 concerning the attack on his daughter, and confirmed in the written submissions dated 24 March 2016 filed on his behalf, provided indirect, but nonetheless relevant, evidence about that attack. The appellant submitted that his own account of his conversations with his daughter and his wife constituted evidence of facts capable of establishing that the attack took place, and had been carried out by a teenage boy associated with the Taliban, following the death of the boy’s father at the hands of the Pakistani army. The appellant contended that the primary judge erred by treating the appellant’s evidence of the claimed attack on his daughter, and the stated reasons for that attack, as mere speculation and thereby mischaracterised what constituted evidence and claims for the purposes of the assessor’s assessment.

48    The appellant contended that, on one view, the assessor has reasoned, wrongly, that because she considered that there was no evidence about the attack on the appellant’s daughter, that there was no claim at all. The subsequent omission of any reference to the attack on his daughter and the assessor’s statement about the safety of his family showed, so the appellant said, that the assessor had not considered the material as she was required to do. The appellant drew attention to the assessor’s failure to refer to the claim regarding his daughter when she set out her conclusions while repeating that the appellant’s family remained unharmed in the period of his absence from Pakistan. The appellant also noted that the assessor stated that the appellant’s “testimony has not been substantiated by country information … and his own family remaining housed and unharmed in the six years since his departure”; and his claim of being kidnapped was rejected, with the assessor noting that there was no “further threat in the past six years to his own family”. The appellant submitted that this was “rolled-up reasoning” and infected the assessor’s credibility findings on central issues.

49    The appellant submitted that the assessor’s conclusion that there was no evidence submitted to indicate an attack, as well as the assessor’s statements that there had been no claimed incident of harm against the appellant’s family members in the past six years, involved jurisdictional error. The error might, so the appellant said, be characterised in a number of ways. Citing Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [31]–[36], the appellant submitted that the assessor’s erroneous approach to the evidence meant that the decision was made without considering all the claims or their component integers. Citing MZYTS, Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99, Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [102] and BDJ15 v Minister for Immigration and Border Protection [2017] FCA 1281 at [61], the appellant also submitted that the assessor’s failure to consider the evidence and the totality of the claims in light of the relevant law was a failure to apply the correct legal principles and to carry out the core task of evaluating and weighing the evidence or claims. The error might also be characterised, so the appellant said, as a failure to deal with a claim or claims amounting to a breach of procedural fairness, as discussed in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 at [90]. In summary, so the appellant’s counsel said, “looking at the way this decision was made, there has not been the requisite process of assessing evidence and claims against the relevant tests. Instead, something quite different took place, which is somewhat illogical and difficult to follow but revealing of error”.

50    The Minister contended that although the assessor referred to an absence of evidence to support the appellant’s claims about his family members, it did not follow that the assessor had failed to have regard to the appellant’s claims and evidence or required him to corroborate his evidence. The Minister contended that, when the assessor’s reasons are looked at fairly and as a whole, it was clear that the assessor had regard to the material before her on the claims about the appellant’s family members and made findings that addressed the appellant’s case regarding them. The Minister submitted that these factual findings were open to her.

51    The Minister contended that, it was necessary and appropriate for the assessor to assess the probative value of the material put before her by the appellant and, in forming an assessment that that material lacked probative value, the assessor did not insist on the appellant providing corroborative evidence. Further, the Minister submitted that the assessor was not obliged to accept at face value the appellant’s claims and evidence, citing Guo at 596. At the hearing, the Minister submitted that:

All that the assessor can find on the basis of what was before her was that, while there might have been a disappearance caused by a Taliban attack, there’s no indication of the circumstances that would be capable of satisfying her that that had anything to do with the appellant’s claim to fear harm on the basis of an imputed political opinion. Likewise, with the appellant’s daughter, the evidence just does not go to the issue of the reason why that might occur, beyond speculation, and I will hark back, your Honour, to what is said in Guo about speculation and conjecture or surmise just not being enough. And that was an approach which the assessor took and, in my submission, was open to her.

Now, in terms of cases relating to the assessment of the probative value of claims in evidence, it wasn’t the case that there was some [insistence] on corroborative material, it was just an assessment of the material before the assessor [as] not be[ing] adequate …

52    In the above regard, the Minister referred to Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; 113 ALD 46 at [45], Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [58], SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244 at [17], Minister for Immigration and Multicultural Affairs v Rajalingham [1999] FCA 719; 93 FCR 220 at [134] and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; 52 FCR 437 at 451.

53    Regarding the appellant’s missing brother and sister-in-law, the Minister submitted that the assessor’s statement that she was “unable to deduce or conclude what has occurred in this instance as [the claimant] has not submitted any evidence” was consistent with the appellant’s written statement in February 2011. This was because the appellant’s claim was simply that these relatives were missing although he did not know the circumstances in which they came to be missing. At the hearing, the Minister submitted that, in commenting on this claim under the heading “Procedural fairness”, the assessor had done no more than find that it was “not possible to be satisfied that they were the subject of any targeted harm by the Taliban”. The assessor’s subsequent statement that “[h]is eldest brother and wife have been missing since 2008 in a suspected Taliban attack” was, in the Minister’s submission:

… a characterisation of how it is thought that they may have – but not known, that they may have disappeared. But it doesn’t go to them being targeted because of some imputed political profile by reason of their connection with the appellant himself.

The Minister noted that there was no reference to this particular claim at the appellant’s interview with the assessor on 22 September 2015, and submitted that “insofar as there was an opportunity to present evidence about it, it doesn’t appear that that opportunity was taken up”.

54    At the hearing, the Minister contended that the “gist” of what the assessor was saying in relation to the claimed attack on the appellant’s daughter was that there had not been any direct evidence submitted to indicate an attack took place, as the primary judge had in fact found. The Minister added that:

It seems difficult to say otherwise when one has regard to the terms of the interview. So, really, all that’s being said there is that there is not something that would provide some additional support for the allegation as to an attack having even taken place, such as some sort of medical record or the like. Now, that doesn’t mean that there’s a requirement for corroborating evidence. It simply means that it’s not satisfied on the basis of what it has got.

55    Also at the hearing, the Minister submitted that, despite the assessor’s observation that there had “not been any claimed incident of harm against [the claimant’s] family members by the Taliban in the past six years”, it could not be said that the assessor ignored any claim. The Minister submitted that the significance of this observation had to be considered in the context of the assessor’s previous statement she could not “support the appellant’s speculation of why his daughter was attacked by a 14 year old boy; nor has there been any evidence … to indicate an attack took place”. The Minister further submitted that it did not appear the claims regarding the appellant’s daughter and the appellant’s brother and sister-in-law were necessarily claims of harm by the Taliban, because the claim regarding the daughter related to the “son of a Talib”, and, with respect to the brother and his wife, it was unknown whether they had been harmed by the Taliban. The Minister noted that the appellant addressed the attack on his daughter in the interview with the assessor, but, other than to say that the attacker was “the son of a Talib” said nothing further as to the reason for the attack. In this context too, the Minister referred to the Department’s letter of 5 February 2016, giving the appellant an opportunity to respond to matters that were considered adverse to the appellant’s claims. The Minister submitted that the assessor’s statement that the family remains unharmed should be understood as a rejection of the appellant’s claims after due consideration of them, noting that the assessor also rejected the rest of the appellant’s claims about being targeted (whether as a perceived spy or because he had a brother in Pakistan’s army) and kidnapped by the Taliban and targeted in Malaysia, as well as his claim that he needed to relocate if returned to Pakistan.

Consideration

56    For the reasons set out below, I would allow the appeal.

Ground 1

57    The authorities establish that the correct test in assessing whether a person has a well-founded fear of persecution is not only whether that person has in fact such a fear but also whether there is a “real chance” that the person may be persecuted in the future if returned to the relevant receiving country (here, Pakistan). Where there is such a real chance, then a person’s fear is said to be well-founded: see Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 at 389, 398, 407 and 429, Guo at 571-572, SGKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 44 at [18]. It may be accepted that a “real chance” exists where the prospect of persecution is more than remote or far-fetched, “regardless of whether it is less or more than 50 per cent”: Chan at 398 (Dawson J).

58    Nonetheless, at least since Guo, it has been accepted that a decision-maker “can use language other than ‘real chance’ when applying the test” without necessarily disclosing jurisdictional error. The use of language other than “real chance” in the course of explaining whether or not it is accepted that a person’s fear of persecution is well-founded will not disclose jurisdictional error when, “applying the principle established in Wu Shan Liang’s case and considering all the language the [decision-maker] used in the reasons as a whole, there is no reason to conclude that [decision-maker] was applying a standard other than a standard consistent with proper consideration of the ‘real chance’ test”: see VSAI at [25] (Crennan J).

59    That there is some tolerance for different language, provided the correct standard is applied, is evident from what the High Court said in Guo (at 572) about the real chance test approved in Chan.

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

No doubt in most, perhaps all, cases arising under s 22AA of the Act, the application of the real chance test, properly understood as the clarification of the phrase “well-founded”, leads to the same result as the direct application of that phrase. Wu Shan Liang is an example. Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term. … Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.

60    Although the Court in Guo did not abandon the “real chance” test adopted in Chan, it emphasised that the decision-maker’s primary focus ought to be on the statutory term, and that to constitute a “well-founded fear”, a substantial basis for that fear must be shown. A “well-founded fear” is not established merely on the basis of conjecture. Nevertheless, as the Court in Guo accepted, “in most, perhaps all, cases … the application of the real chance test, properly understood as the clarification of the phrase “well-founded”, leads to the same result as the direct application of that phrase”, as set out in full above.

61    As the Minister observed, the assessor set out the definition of “refugee” in article 1A(2) of the Refugees Convention at the outset of her analysis of the appellant’s claims for refugee status. This definition does not, however, use the language of “real chance”. The assessor also remarked that:

Section 5H of the Act provides the definition of a refugee. Section 5J provides the definition of a well-founded fear of persecution.

There was no explicit reference to “real chance” here either, although s 5J(1)(b) and (c) of the Migration Act incorporate “real chance” language. Comparison shows that s 5H of the Migration Act mostly follows the definition in article 1A(2) of the Refugees Convention, whilst s 5J defines “a well-founded fear of persecution” including that there must be “a real chance” that, if returned, the refugee claimant “would be persecuted” for a Convention reason (s 5J(1)(b) and article 1A(2) of the Refugees Convention) and “the real chance” relates to all areas of the receiving country (s 5J(1)(c)).

62    As already noted, the appellant’s argument was that the Court should infer that the assessor applied the wrong test because “the thinking that needed to take place” in applying the real chance test was not done. To make good this submission, the appellant relied on the fact that the assessor did not mention the real chance test in considering whether the appellant was a person to whom Australia owed non-refoulement obligations under the Refugees Convention.

63    Indeed, the assessor did not use the language of “real chance” when considering the existence of a non-refoulement obligation under the Refugees Convention at all. The assessor did not, as one might have expected, refer to “a real chance” in the context of determining whether the appellant had a well-founded fear of persecution in order to satisfy the definition of refugee (and ultimately the criterion in s 36(2)(a) of the Migration Act). In her opening statement under the heading “Australia’s non-refoulement obligations”, the assessor said that such an obligation was not “to forcibly return … a person to a place where he or she will be at risk of” a specified harm. Subsequently, the assessor asked the question “Is the fear well-founded?”, in the context of addressing a possible non-refoulement obligation under the Refugees Convention, without referring at any point to the real chance test. This may be contrasted with the manner in which the assessor stated the subsequent question, “Are there substantial grounds for believing that there is a real risk of significant harm?”, in the context of addressing potential obligations under the CAT or the ICCPR.

64    The closest the assessor came to stating the “real chance” test with respect to a possible non-refoulement obligation under the Refugees Convention was the assessor’s reference to s 5J of the Migration Act since s 5J has within it the real chance standard. The assessor only used the language of “real chance” directly in connection with the possibility of complementary protection under s 36(2)(aa) of the Migration Act, when the assessor noted that “the test for significant harm under Complementary Protection is whether there is a ‘real chance’ the claimant will suffer significant harm, were the claimant to be returned to their receiving country”. The assessor went on to “note that this equates the test of ‘real risk’ with ‘real chance’”. There is a subsequent reference to “real chance” in the same context, in the course of making findings about non-refoulement obligations under the CAT and the ICCPR. Here, the assessor found that she was “not satisfied that the claimant has a real chance of being subject to significant harm should he be returned to Pakistan”. The assessor did not expressly link the “real chance” standard back to the definition of refugee under the Refugees Convention, as expanded in ss 5H and 5J and the criterion in s 36(2)(a) of the Migration Act.

65    There are, moreover, some indications that the assessor may have mistakenly adopted a probabilities-type standard in assessing whether a non-refoulement obligation had arisen under the Refugees Convention. As already noted, the assessor stated that she did not consider the appellant, if returned to Pakistan, “would be targeted” as a returnee or as a failed asylum seeker; that he “would be targeted” for his political opinions; or that he “would be targeted” for harm based on race or religion. The assessor also stated that she did not consider that, if returned, the appellant “would be” denied health and medical services for a Convention reason. There was no indication that she did not apply a probabilities-type standard in what the assessor described as her “Finding on well-foundedness”. Here, she merely stated that she found that the appellant “does not have a well-founded fear of being persecuted for a Refugee[s] Convention reason. [She] therefore [found] the claimant’s fear of persecution, [was] not well-founded”.

66    I would readily accept that, as the Minister submitted, the use of language such as this does not require the conclusion that the decision-maker applied the wrong test. A Full Court of this Court in NABB at [22] rejected the submission in that case that the words “would be carried out”, “would” and “would have” of themselves demonstrated that the Tribunal was not “applying the well-founded fear standard as explained by the High Court in Chan”, on the basis that the Tribunal’s reasons, as a whole, indicated that it had applied in fact the correct test. The Full Court explained at [25] that:

There is no justification for concluding that the Tribunal made such an elementary error as is relied upon by the appellant. In circumstances where the Tribunal started and finished by stating the correct “real chance” test, the fact that it used some phraseology in between that might or might not have suggested a departure from that test is not a warrant for concluding that the Tribunal erred in law. The appellant’s contentions are, in essence, an invitation to the Court to read the Tribunal’s reasons “with an eye keenly attuned to error” (see Minister for Immigration & Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2).

67    As already indicated, I also accept that jurisdictional error does not arise merely because a decision-maker does not use the language of “real chance” in connection with ascertaining refugee status under the Refugees Convention. As stated above, I would accept that a decision-maker may use language other than “real chance” without necessarily disclosing jurisdictional error if, reading the decision-maker’s reasons fairly and as a whole, in accordance with Wu Shan Liang, there is no reason to conclude that the decision-maker was applying a standard inconsistent with the “real chance” test.

68    In other cases, the appellant’s argument might be more readily put aside than in this case, because the decision-maker’s reasons in fact indicated a logical thought progression, and when the reasons were read fairly as a whole, there was no reason to say that the correct legal standard has not been applied, even if the decision-maker’s reasons might have been better expressed. In such a case, a court will be unlikely to impute jurisdictional error to the decision: see Wu Shan Liang at 271-272 and 291. Sometimes too a decision-maker’s reference to a particular provision is enough to satisfy a reviewing court that the decision-maker is aware of and has applied the relevant legal standard. The present is not such a case.

69    The assessor’s reasons in this case are lengthy yet confusing. As the appellant submitted, and I accept, the structure of the assessor’s reasons do not indicate that she approached her decision-making in what might be thought a conventional sequence or logical thought-progression. The reasons lack logic and structure, and include several curious detours (for example, the parts titled “Relevant country” and “Identity finding”) which tended to interrupt and confuse the assessor’s reasoning. Significantly, the reasons do not reflect the kind of sequential analysis that is characteristic of a decision-maker applying the “real chance” or equivalent standard in determining whether a non-refoulement obligation has arisen under the Refugees Convention. The reasons also contain a number of other difficulties, including confusing sub-headings and internal inconsistencies. These problems make it difficult to determine at times what exactly the assessor intended to say. These deficiencies make it difficult to be confident that, read fairly and as a whole, the assessor understood and applied a standard commensurate with the real chance test in assessing whether the appellant had a well-founded fear of persecution for a Refugees Convention reason, such that a non-refoulement obligation did or did not arise with respect to him under the Refugees Convention. In this case, simply mentioning s 5J of the Migration Act is an insufficient basis on which to rest a conclusion that the assessor identified and applied the correct legal standard.

70    This is not a case like Wu Shan Liang where “the delegate starts and finishes with the correct test; [and] it is only some phraseology in between which provides the basis for a conclusion that she had slipped from an assessment of real chance to an assessment of balance of probabilities”: see Wu Shan Liang at 271.

71    It may be accepted that the assessor’s reasons should not be read with an unduly critical eye. The assessor expressly directed herself correctly to the definition of refugee in article 1A(2) of the Refugees Convention and, broadly speaking, to relevant provisions of the Migration Act. Nonetheless, given the deficiencies in the assessor’s reasons to which I have referred (see [69] above), the absence of any indication that the assessor applied the real chance test or an equivalent standard, and the use of language indicative of an erroneous approach to the assessment of well-founded fear, it does not seem to me that there is any sound basis upon which to conclude that, reading the reasons fairly and as a whole, the assessor can be taken to have applied the correct standard in assessing whether a non-refoulement obligation had arisen in the appellant’s case under the Refugees Convention.

72    Further, the evidence before the assessor disclosed at least a chance that the appellant’s family members had been victims of the Taliban in 2008/2009 or of a Taliban sympathiser more recently, as discussed hereafter in relation to ground 2. In this case, it appears that the assessor did not turn her mind to assessing the nature of that chance and whether, taking the appellant’s claims as a whole, there was a real chance that he would face persecution in the future for a Refugees Convention reason. In this regard, the assessor’s failure to consider the whole of the appellant’s claims and evidence as she was required to do (see discussion at [102]-[103] below) amplifies or compounds the assessor’s failure to apply the correct real chance test.

73    Accordingly, so it seems to me, the primary judge ought to have found that the assessor failed to apply the correct legal test in determining whether the appellant had a well-founded fear of persecution. The appellant’s first ground is therefore made out.

Ground 2

74    As mentioned earlier, in respect of ground 2, the Minister relied on Aporo at [45], where the Full Court said:

The choice of, and weight given to, the material before a Tribunal is a matter for it:  NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 per French J at [27].  Further, while it can generally be said that there is no onus of proof in administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), it is for an applicant to provide their evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts:  Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61.  The decision maker is not required to make the applicant’s case for him or her:  Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155. …  

75    In the same context, the Minister referred to the statement by Gummow and Heydon JJ in Applicant S154/2002 at [58] (Gleeson CJ agreeing at [1]) that “[t]he tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on”: see also SZQFS at [17].

76    These principles are not in doubt with respect to Tribunal decision-making and, for present purposes, may be accepted as relevant to an ITOA.

77    The authorities also recognise that there are inherent difficulties facing a person claiming refugee status, and that the law takes this into account in various ways, through a number of related principles. This is indicated in Beaumont J’s statement in Randhawa at 451 that:

Proof of persecution in the context of an application for refugee status is a matter of some complexity. As A Grahl-Madsen has noted (The Status of Refugees in International Law at 145-146), in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for, since it is a well-known fact that a person who claims to be a refugee may have difficulties in proving his allegations (cf. Gaudron J. in Chan at 413); and it would go counter to the principle of good faith in the interpretation and application of treaties if a contracting state “should place on a suppliant a burden of proof which he, in the nature of things, could not possibly cope with”. This should not, however, lead to “an uncritical acceptance of any and all allegations made by suppliants”.

78    James Hathaway and Michelle Foster, in The Law of Refugee Status (2nd ed, 2014) also state (at p 119):

Given the legal duty to implement treaties in good faith, governments of state parties are reasonably expected to commit themselves not simply to ensuring that the benefits of the Convention are withheld from persons who are not refugees, but equally to doing whatever is within their ability to ensure the recognition of genuine refugees.

(Footnotes omitted)

The learned authors then set about explaining what this may mean for the way in which refugee claims are assessed. Amongst other things, they say (at p 120):

[A]sylum state authorities may not simply adopt a passive posture, responding only to whatever evidence is adduced by the applicant. It also means that there is a duty to recognize refugee status even if the applicant misconceives her claim, or otherwise fails properly to frame her assertion of refugee status.

(Footnotes omitted)

79    In this context, the authors cite the decisions of this Court stating the decision-maker’s obligation to consider all the material and any case that might reasonably arise, referring in particular to W396/01 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 103; 68 ALD 69, where a Full Court of this Court stated (at [35]):

We accept, as is evident from the material set out at para 30, that neither the appellant’s claims nor submissions made on his behalf invited the Tribunal to draw links between, or look globally at, the facts set out above at para 29 in the context of advancing the appellant’s sur place claim.  We also accept that no apparent reliance was placed on the ASIO interview and how it might particularly place the appellant at risk of suspicion.  Nonetheless the scope of Tribunal’s review task is not limited by the case articulated by an applicant. The Tribunal should look at all the evidence and material that it has not rejected and give consideration to a case which it might reasonably raise, notwithstanding that such a case might not have been contended for by the applicant. This obligation on the Tribunal was explained by Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294-295 where his Honour held that it is necessary to “consider all the relevant possibilities by looking back at the entirety of the material placed before [it]”, and the decision-maker must “[stand] back from the particular grounds and consider … the case in its entirety” (See also Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at para 13 and the authorities cited there).

(Emphasis added)

80    A related issue, which also bears on a decision-maker’s duty in the present context, is how the decision-maker should address the sometimes complex evidentiary challenges faced by a claimant for refugee status (and therefore the non-refoulement obligation) under the Refugees Convention in assembling information bearing on the prospect of future risk: see Hathaway and Foster, at p 121. The same kind of challenge also arises in relation to the assessment of non-refoulement obligations under the ICCPR and the CAT. The High Court and this Court have touched on the principles governing decision-makers in this regard. In Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 at [83], for example, Gleeson CJ and McHugh J said the fact that an applicant:

… might fail to make out an affirmative case in respect of one or more of the [claimed events] did not necessarily mean that [the] claim for refugee status must fail. As Guo [per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 575-576] makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal ‘must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution’ [Guo at 576].

81    As Kirby J stated in Wu Shan Liang at 293, “the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material”.

82    A Full Court of this Court in WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 referred at [34]-[35] to the passage from Abebe quoted above, and also cited with approval the statements of Brooke LJ (Robert Walker LJ agreeing) in the English Court of Appeal in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 at 469-470. Brooke LJ there said that the proper approach to evidence in asylum seeker cases:

… does not entail the decision-maker … purporting to find “proved” facts, whether past or present, about which it is not satisfied on the balance of probabilities. What it does mean, on the other hand, is that it must not exclude any matters from its consideration when it is assessing the future unless it feels it can safely discard them because it has no real doubt that they did not in fact occur (or, indeed, they are not occurring at present). …

For the reasons much more fully explained in the Australian cases, when considering whether there is a [real chance] of persecution for a convention reason if an asylum seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur.

(Emphasis added)

83    In the same case, Sedley LJ described the role of the departmental officers who were required to assess a claimant’s refugee status, saying at 479:

Such decision-makers, on classic principles of public law, are required to take everything material into account. Their sources of information will frequently go well beyond the testimony of the applicant and include in-country reports, expert testimony and—sometimes—specialised knowledge of their own (which must of course be disclosed). No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it. What the decision-makers ultimately make of the material is a matter for their own conscientious judgment, so long as the procedure by which they approach and entertain it is lawful and fair and provided their decision logically addresses the convention issues. Finally, and importantly, the convention issues from first to last are evaluative, not factual. The facts, so far as they can be established, are signposts on the road to a conclusion on the issues; they are not themselves conclusions. …

84    There is no closed class of information that may inform the evaluation of the future risk of harm. As Lord Clyde said in the House of Lords in Horvath v Secretary of State for the Home Department [2000] 3 All ER 577 at 598:

In assessing the existence of a real risk of the violation of rights occurring, anything which may bear on the likelihood of the incidence of the violation will be relevant. It is the applicant’s fear which is in issue, and so matters particularly relating to him will be important. For example, his prominence in society or political life, or anything else which might make him a particular target of persecution may be relevant. The history of past violations, the extent to which the applicant has personally been directly affected, either by being the victim of violence or the recipient of threats of violence, consideration of geographical location, of all the factors which might stimulate or facilitate a violation, will be among the circumstances to be taken into account. As also will factors which may discourage or deter or render a violation less likely. The political and legal situation in the country should be taken into account.

85    As will be seen, these principles expose error in the assessor’s approach in this case.

86    The appellant raised the issue about his brother and his brother’s wife at the beginning of the administrative process of considering his claim for refugee status. As noted, in a statement by the appellant in February 2011, which was before the assessor some years later when she came to make her assessment, the appellant stated:

Over 2 years ago Pakistan Army raided [the area] … During that raid my brother was taking his wife to hospital. There was a Taliban check post on the way. I do not know if my brother and his wife were killed or taken away by Taliban and are missing.

87    Further, in a letter to Department dated 18 October 2011 (and also before the assessor), the appellant’s registered migration agent stated that, among his other claims, the appellant claimed:

Around May 2009 the Pakistani army raided [the area]. A number of villagers were killed [by] both sides. The Client’s brother had been taking his wife to hospital at the time of the raid and they remain missing today. The Client fears he was taken by the Taliban.

88    This claim was again repeated in a letter from the appellant’s registered migration agent to the Independent Merits Reviewer dated 2 December 2011 (and before the assessor).

89    This claim was therefore before the assessor at the appellant’s interview in September 2015. The assessor did not, however, ask any questions about this claim at the interview such as whether he or other family members were in regular contact with his brother and sister-in-law before they went missing, or what had been done to find out what had happened to them. The appellant no doubt understood that the assessor would consider his statements about their disappearance, and what might be inferred from the circumstances he had related, in making her assessment.

90    The assessor’s statement that the appellant had not submitted any evidence as to what had happened to the appellant’s brother and sister-in-law in 2009 disclosed error at a number of levels. First, contrary to the assessor’s appraisal, the appellant had, plainly enough, given evidence for the purposes of the assessment in his statement in February 2011. From this evidence, the assessor might have inferred that two members of the appellant’s family had been killed or abducted by the Taliban, as indeed the submissions subsequently made on his behalf maintained. That this was more than a theoretical possibility appeared not only from the appellant’s own statement but also from the assessor’s acknowledgement at the interview in 2015 that the Pakistani army had indeed been active in the area at the time his brother and sister-in-law went missing, that so too, inferentially, was the Taliban (as indeed the appellant’s statement alleged), and that in consequence numbers of people were killed or went missing at the time.

91    The assessor’s statement that she was “unable to deduce or conclude what has occurred” indicated that the assessor did not engage with the evidence and the appellant’s claims as she was required to do. I accept that the assessor’s statement at this point indicates that she was erroneously seeking to make a probabilistic determination as to what had occurred and that, having determined that the evidence did not permit this to be done, she treated the appellant’s statements as “no evidence”. Even if the assessor was not seeking to make a factual determination on a balance of probabilities-type standard, the assessor ought not to have ended her assessment of this aspect of the appellant’s claims and evidence at this point. As Gleeson CJ and McHugh J stated in Abebe at [83] and Kirby J affirmed in Wu Shan Liang at 293, a failure to satisfy a decision-maker of one or more claimed events does not end the decision-maker’s inquiry: see also SGKB at [23]. The decision-maker must still consider the extent to which it is likely that the claimed event occurred in assessing whether the claimant has a well-founded fear of persecution, and the decision-maker cannot avoid “reasonable speculation” about the chances of persecution when the claimant’s material is considered as a whole. In so doing, and as part of the core task of evaluating and weighing the evidence, the decision-maker must consider how much weight should be given to these matters, having regard to the other claims and the evidence in the case. The assessor in this case apparently failed to appreciate that, in considering the issue of well-founded fear, hers was essentially an evaluative task. Instead, the assessor failed to give any further consideration to this aspect of the appellant’s claim and evidence and treated her inability to determine what had occurred to these family members as foreclosing further reasonable speculation and consideration.

92    It may also be that, as the appellant submitted, the assessor erroneously treated the appellant’s evidence as “no evidence” of what had occurred because the assessor could not identify any corroborative evidence, notwithstanding the appellant’s evidence was consistent with, and to some extent corroborated by, the country information to which the assessor referred at the appellant’s interview. If this was why the assessor wrongly treated the appellant’s evidence as no evidence, then the assessor erred in requiring corroboration as a condition of receiving the appellant’s statements about an event as evidence of that event: see Eshetu at 485 and Machmud at [16]. This is another way in which it can be said that the assessor failed to carry out her core task of evaluating and weighing the appellant’s claims and evidence in the ITOA process.

93    The difficulty in making sense of the assessor’s reasoning process is increased here by the fact that, the assessor first concluded that she could not determine what had happened to the appellant’s brother and sister-in-law, but subsequently stated, affirmatively, that the appellant’s “brother and wife have been missing since 2008 in a suspected Taliban attack”. It is virtually impossible to reconcile these statements. To make matters worse, the latter statement appeared under a heading “Conclusions” (within the broader heading “Procedural fairness”); and the points under this “Conclusions” heading apparently constituted a mixture of claims and factual conclusions. What can be said, however, is that the assessor did not expressly or impliedly include the relevant claim and the appellant’s evidence about it in her evaluation as to whether the appellant had a well-founded fear of persecution. This omission was presumably because the assessor considered that she need not take the claim and the relevant evidence into account in any way because of the supposed lack of evidence to which she had first referred.

94    The second aspect of ground 2 turns on a different integer in the appellant’s claims.

95    At his interview in September 2015, the appellant raised with the assessor an issue of the then recent attack on his daughter. The appellant spoke of the attack on his daughter near her home in Pakistan; indicated that the attacker had Taliban connections; and indicated a possible motive to harm him and his family related to his pro-Pakistani army and anti-Taliban stance.

Appellant:     For me it would be quite difficult to make a living [in Pakistan] because of the fear I have that my life is under threat. I have a daughter. My daughter was going from her home to her grandmother’s house, in the village, and she was grabbed by a Talib in the region and she was badly hit, very badly hit. Son of a Talib, sorry, son of the Talib grabbed my daughter and she was very badly hurt and she had a head injury and some of her bones were broken in her body. Because of that incident, when I was calling home she could not speak to me and later I found out that when she spoke she complained to me, I have this pain in the body, this injury and stuff like that.

…

Assessor:    So you spoke to your wife?

Appellant:    To my daughter.

Assessor:    But did you speak to your wife?

Appellant:    Yes.

Assessor:    What did she say had happened?

Appellant:    She told me that the army killed one other person, of the Taliban, somebody’s father, and that person’s son hurt your daughter, badly hurt.

96    This claim was clarified in submissions made for the appellant by the Asylum Seeker Resource Centre (ASRC) in a letter to the assessor dated 24 March 2016, which stated:

c. Your daughter was injured and hospitalised in August 2015 when she was attacked by a person whose son had died. You think the reason relates to your circumstances of the attack … in 2010.

The applicant instructs us that he does not agree with this statement (as quoted from your 20 January 2016 email to him) because his daughter was not attacked by a person whose son had died and he did not state this during his interview. The applicant instructs us that his wife has informed him that a boy aged 14–16 years old beat up his daughter … . The applicant instructs us that his wife does not know the name of the boy but she has been told by neighbours that the boy’s father was killed by the Pakistani army. This is consistent with the information provided by the applicant during his ITOA interview.

The applicant tells us that he believes that the attack on his daughter … is related to the attack on him in 2010 … in that both attacks were by supporters of the Taliban and inflicted because of [t]he applicant’s perceived support for the Pakistani army.

As the appellant’s counsel noted in reply at the hearing in this Court, although the ASRC’s letter stated at the outset that it was a response to the Department’s letter of 5 February 2016, the above passage was in fact in response to an earlier Departmental email of 20 January 2016.

97    The appellant’s claim that his daughter had been attacked by an assailant associated with the Taliban was clearly before the assessor. The assessor’s statement that there was no evidence that the attack on the appellant’s daughter took place disclosed error, or errors, of a similar kind to that discussed above. Contrary to the assessor’s understanding, there was in fact evidence that the attack had occurred. This evidence was constituted by the appellant’s account at the interview of his conversations with his daughter and his wife. An ITOA is not to be made according to the rules of evidence applicable in the trial of a civil proceeding, such as the rule against the admissibility of hearsay evidence. Nor is there any rule that only “direct” evidence can be considered by an assessor, and an assessor is entitled to ignore evidence solely on the basis that it is “indirect”. The appellant’s account of what his daughter had told him about the attack could not be dismissed as mere speculation. Nor could the appellant’s account of what his wife had told him be rejected as having no possible bearing on the reason for the attack. It would have been open to the assessor to have accepted that the appellant’s account of these conversations indicated that the appellant’s daughter had been attacked by a teenage boy associated with the Taliban, whose father had been killed by the Pakistani army, and to have accepted that the assailant’s motivation was, or may have been, related to the appellant’s perceived pro-Pakistani army and anti-Taliban stance.

98    In any event, as indicated with respect to the missing family members claim, even if the assessor was unable to determine if in fact the attack had happened, the assessor was required to consider the extent to which it was likely that attack had happened and the claimed reason was the reason for it, as part of her assessment of whether the appellant had a well-founded fear of persecution. As part of the core task of evaluating and weighing the evidence, the assessor was required to consider, in light of her appraisals, how much weight should be given to the matter in all the circumstances. With respect to this part of the appellant’s claim too, the assessor apparently failed to appreciate that, assessing the issue of well-founded fear was an evaluative exercise. Instead, the assessor failed to give any further consideration to this aspect of the appellant’s claim and evidence and treated a lack of so-called “direct” evidence about the attack and the reasons for it as foreclosing further reasonable speculation and consideration.

99    There is no further reference to the claimed attack on the appellant’s daughter following the assessor’s erroneous conclusion that there was no evidence submitted for that attack, although there are a number of statements in the assessor’s reasons that the appellant’s family had been unharmed in the years the appellant was away. The assessor made a number of statements to the effect that over the past six years the appellant’s family had remained “unharmed and have not been targeted for harm by the Taliban”, “the Taliban have had many years to target all members of [the appellant’s] family but have not done so”, “without any further threat in the past six years to his own family”, “his own family remaining housed and unharmed” and “the family continue to reside in [the District] unharmed”. These statements were presumably a consequence of the assessor’s erroneous conclusion that there was no evidence to support the claimed attack on the appellant’s daughter, although the assessor did not expressly make this connection. It is, however, tolerably clear that she had left the appellant’s statements about the attack out of account because she did not appreciate that they not only contained his claim but also his evidence about it. The assessor did not therefore evaluate the appellant’s claims and the evidence before her as she was required to do.

100    The presence of an error of this kind is confirmed in the assessor’s further statement that “[t]here has not been any claimed incident of harm against his family members by the Taliban in the past six years”. Even if the assessor had put aside the claimed attack as unsupported by evidence, it was plainly incorrect to say there was no claimed incident of harm against a family member by the Taliban. The assessor could not have made this statement unless she had ignored the appellant’s claim as a whole, including the reference to a “Talib” assailant.

101    The substance of the appellant’s claims were, as his counsel put them:

… that he himself had been attacked by the Taliban[; that,] [m]ore recently, his daughter had been attacked by the Taliban[; and] [t]herefore, he had a past experience of [persecutory harm], there has been a more recent [incident] and therefore, … he fears harm in the future.

This was not considered by the assessor, and nor was the evidence about it.

102    I would infer from the foregoing that the assessor did not consider the whole of the appellant’s claims and evidence as she was required to do and, in particular, she has not given the requisite consideration to the appellant’s claim that his daughter was attacked by an assailant connected to the Taliban because of the appellant’s perceived pro-Pakistani army and anti-Taliban position. The assessor might have rejected the appellant’s claims on a different basis, including on the basis of an assessment of the probative significance of the material before her and reasonable speculation about the chances of persecution emerging from a consideration of the whole of the material before her. The assessor’s reasons on their face do not indicate that this was her approach.

103    In Plaintiff M61/2010E the High Court held (at [90]) that the failure of a reviewer to address a claimed basis for the claimant’s fear of persecution was a denial of procedural fairness. It also meant that the Minister was not informed about a matter that the reviewer was directed to consider, whether Australia owed the claimant a relevant non-refoulement obligation: see also Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [74]-[77]. In this case, the appellant has established that the assessor failed to address parts of the claims he made to have a well-founded fear of persecution, or a real risk of significant harm and wrongly disregarded the evidence submitted by the claimant in support of them. These unconsidered claims were significant; for example, as discussed above, the assessor made repeated reference to what she understood to be the lack of harm suffered by the appellant’s family in his absence and even referred to the lack of claimed harm. Had the assessor addressed these claims and evidence, as she was required to do, it is possible that she may have made a different assessment. The assessor has not, furthermore, adopted the approach mandated by the authorities to the assessment of well-founded fear of persecution: see Abebe at [83]; Wu Shan Liang at 293; and SGKB at [23] discussed above. This is a further error, entitling the appellant to declaratory relief: see Plaintiff M61/2010E at [89]. I note that the Minister accepted at the hearing that a denial of procedural fairness and a failure to apply the correct legal principles were both available grounds of review (see Transcript at p 17).

Disposition

104    At the hearing, it was common ground that the appropriate relief, if the appellant were successful, was declaratory relief: see Plaintiff M61/2010E at [91]-[103]; and SZSSJ at [74]-[77]. For the reasons stated, the appeal should be allowed, the judgment of the Federal Circuit Court set aside, and the declaratory relief sought before the primary judge granted.

Associate:    

Dated:        26 September 2018