FEDERAL COURT OF AUSTRALIA

SZVRQ v Minister for Immigration and Border Protection [2020] FCA 375

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 2 and 3 of the orders made by the Federal Circuit Court of Australia on 31 March 2017 in proceeding (P)SYG3236/2014 (hereafter, the “Proceeding Below”) be set aside and, in lieu thereof, it be ordered that:

(a)    a writ of certiorari be issued, removing into this court and quashing the decision of the second respondent (the then Refugee Review Tribunal) made on 6 November 2014 in case number 1311009 (hereafter, the “Quashed Decision”);

(b)    a writ of mandamus be issued, requiring that the second respondent determine the application to which the Quashed Decision pertained (namely, for review of the decision made by a delegate of the first respondent on 11 July 2013) according to law; and

(c)    the first respondent pay the applicant’s costs of and incidental to the application in the Proceeding Below.

3.    The first respondent pay the appellant’s costs of and incidental to the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The appellant is Rohingya by ethnicity. He arrived in Australia as a tourist in June 2012. On 13 September 2012, he made an application under the Migration Act 1958 (Cth) (hereafter, the “Act”) for a protection (class XA) visa (hereafter, the “Visa Application”). His grounds for doing so are explored in more detail below. Although he has previously claimed to be stateless, he has been assessed as possessing Pakistani citizenship and that assessment is not presently the subject of challenge.

2    On 11 July 2013, a delegate of the first respondent (hereafter, the “Minister”) dismissed the Visa Application (hereafter, the “Delegate’s Decision”). The appellant then applied to what was then the Refugee Review Tribunal—the functions of which have since been assumed by the second respondent (the two bodies will be referred to, hereafter and interchangeably, as the “Tribunal”)—for a review of the Delegate’s Decision (hereafter, the “Review Application”). On 6 November 2014, the Tribunal affirmed the Delegate’s Decision (that later decision will be referred to, hereafter, as the “Tribunal Decision”).

3    On 20 November 2014, the appellant applied to the Federal Circuit Court of Australia (hereafter, the “FCCA”) for prerogative relief directed at the Tribunal Decision (hereafter, the “Judicial Review Application”). On 31 March 2017, the FCCA dismissed the Judicial Review Application: SZVRQ v Minister for Immigration & Anor [2017] FCCA 626 (Judge Manousaridis; hereafter, the “FCCA Judgment”).

4    By a notice of appeal lodged on 19 April 2017, the appellant now appeals against the FCCA Judgment. For the reasons that follow, that appeal must (and will) be allowed with costs.

The Visa Application

5    The appellant travelled to Australia on what he claimed was a fraudulent Pakistani passport. He maintained that he was born in the United Arab Emirates, where he lived prior to his arrival in Australia. He claimed that he had been persecuted in the United Arab Emirates and that, if returned there, he would be removed to Pakistan, where he would be tortured and deported to Myanmar.

6    By means of the Delegate’s Decision, the appellant was assessed as Pakistani. For the purposes of his Review Application, he maintained that he was, in fact, a stateless Rohingya. The Tribunal, however, also concluded that the appellant is a Pakistani citizen and, as is stated above, that finding is not presently the subject of challenge.

7    Before the Tribunal, the appellant raised claims about the treatment of Rohingya in Pakistan. He alleged that, if returned to Pakistan, he would suffer serious or significant harm (such as would satisfy the criteria for which ss 36(2)(a) and 36(2)(aa) of the Act then provided). The extent to which those claims were particularised is unclear (and not material). The issues arising for consideration in this appeal have come about because of country information to which the Tribunal had regard in determining the appellant’s Visa Application.

Legislative provisions

8    The appellant sought a protection visa on the grounds that he satisfied one or both of the criteria for which ss 36(2)(a) and 36(2)(aa) of the Act provide. At the time relevant to this appeal, those provisions read as follows:

36 Protection visas

…

(2)     A criterion for a protection visa is that the applicant for the visa is:

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

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

9    The reference to the “Refugees Convention” is a reference to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The “Refugees Protocol” refers to the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Article 1A of “the Refugees Convention as amended by the Refugees Protocol” relevantly provided as follows:

Article 1

definition of the term “refugee”

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

…

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

10    At the time of the Visa Application, s 91R of the Act (as then in force) provided as follows:

91R Persecution

(1)     For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)     that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)     the persecution involves systematic and discriminatory conduct.

(2)     Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill-treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

11    There is no question raised by this appeal about the jurisdiction of the Minister’s delegate to determine the appellant’s Visa Application, the jurisdiction of the Tribunal to review the Delegate’s Decision or the jurisdiction of the FCCA to hear the Judicial Review Application. It is unnecessary to set out the legislative provisions that confer jurisdiction in those regards.

The Tribunal Decision

12    In response to the submissions that the appellant advanced before it, the Tribunal obtained and considered country information about the treatment of Rohingya in Pakistan. It made the following observations (references omitted):

55.     The Tribunal could only locate limited information about the treatment of Rohingya in Pakistan. Given the limited information about the treatment of Rohingya in Pakistan the Tribunal has also considered information about the treatment of Bengalis in Pakistan. The [appellant] stated, and the Tribunal accepts, that he would be likely to be treated as a Bengali Muslim in Pakistan because of his looks. The Tribunal accepts that in Myanmar Rohingya are considered to be Bengali Muslims and the country information referred to below appears to consider Bengalis and Burmese immigrants in Pakistan to be similar in their treatment.

56.     There is a large community of Rohingya and Bengalis in Karachi, with reports suggesting that Karachi has one of the largest Rohingya populations outside of Myanmar and totals around 200,000. The Tribunal has considered a wide range of reports in relation to the treatment of Rohingya and Bengalis in Karachi as well as those referred to, or provided by, the [appellant]. Reports suggest that Rohingya in Karachi continue to face many difficulties and are one of the city’s poorest and most vulnerable communities. There is a lack of legal recognition of them. For example, The News International reported in 2012 that according to the law, the three to four hundred thousand ‘illegal immigrant’ [Rohingya] in Karachi ‘simply do not exist’. In addition to the lack of legal recognition they lack political power which is crucial in the ethnicity based politics of Karachi. This means that their needs are ignored by the powerful political groups and they lack political affiliations which provide access to services, jobs and protection. The difficulties they face include access to citizenship, passports and obtaining a National Identity Card (NIC) with Rohingya either being denied such access or forced to pay bribes in order to obtain them. They are harassed, arrested, or threatened with arrest, for being illegal residents as a way for police to extract bribes. If the bribes are not paid then they can be arrested. A 2000 article in The Daily Star also refers to [Rohingya] in Karachi as ‘illegal immigrants’, some of whom ‘have spent many years in jail, detained under the Pakistan Foreigners Act’. They are discriminated against in terms of employment and tend to earn a living in low-paid jobs. There are reports of Bengali being denied medical treatment because of their meagre income and ethnicity. There are also reports of Bengali women being forced into prostitution or sold into slavery. These reports suggest that the general situation of ethnic Bengalis and Burmese in Karachi is primarily determined by their ethnicity, not by whether or not they personally have regularised their legal status and that possession of citizenship and documentation will not necessarily provide protection.

57.     However, the country information suggests that not all [Rohingya] in Pakistan live in destitute poverty or suffer extreme discrimination. In a personal account Derek Henry Flood, an independent journalist states:

Arriving in Korangi, I immediately was greeted by a roadside lined with busy fresh fish stalls on one side and a herd of hulking, tar colored water buffalo blocking the rickshaw traffic on the other. I felt like I had been transported into a sliver of Southeast Asia on the Indian subcontinent. The most noticeable cultural contrast to the rest of Karachi was the appearance of the lungi, the ubiquitous floor length national dress of Bangladesh and much of Burma. We went to visit a small Rohingya settlement near Aziz’s one room concrete block home. In comparison to the immense suffering I would encounter in Bangladesh, the people I met were relatively prosperous and urbanized with some of them having been in Pakistan for decades. I wanted most to know how they came to arrive in outer Karachi from western Burma, which I gathered to be an immense logistical feat.

58.     In light of the [appellant]’s denial that he is a Pakistani citizen, or that he has ever been to Pakistan, the [appellant] did not provide any evidence based on personal experience about the treatment of [Rohingya] in Pakistan or claim to have ever suffered harm as a Rohingya in Pakistan. The role of the Tribunal is therefore to make an assessment of whether there is a real chance of serious harm to the [appellant] based on the limited country information before it. The information provided by the [appellant], and found independently by the Tribunal, all refers to the situation in Karachi, which is where there is a large Rohingya community. Given the [appellant]’s claim to have no connection to Pakistan, there is nothing before the Tribunal to suggest that he would have to live in Karachi and he could choose to live in Islamabad or Lahore which are generally more secure than Karachi. However, the Tribunal considers that there is a large Rohingya community with whom he could communicate and find support in Karachi and therefore finds that Karachi is where the [appellant] would most likely live.

59.     The country information referred to above suggests that the communities which the reports refer to largely consist of members without Pakistani citizenship and with limited education, poorly paid jobs, low socio-economic standing and little political influence. However, the [appellant]’s background does not fit within such a profile. He appears to have been well educated (despite his claims to the contrary), he has a Pakistani passport and National Identification Card, he has held a well paid position in an international IT company and he has travelled extensively internationally. The Tribunal considers this to be an important distinction in considering the country information referred to above.

60.     The Tribunal has considered whether the type of harm that the [appellant] may face upon return to Pakistan would constitute serious harm. The Act does not contain an exhaustive definition of serious harm. However, examples of what would constitute serious harm are set out in s.91R(2) of the Act which states:

(2)     Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill-treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(t)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

61.     While the country information refers to discrimination in employment, the Tribunal is not satisfied that there is a real chance of the [appellant] being unable to obtain employment and therefore being unable to subsist. The [appellant] has been able to find well paid work in the UAE and employment here in Australia. The reports referred to above suggest that while there is discrimination in employment, Rohingya in Pakistan are still able to obtain employment. The [appellant] has a Pakistani passport and National Identification Card which will assist him in obtaining employment. He has experience with an international IT company which would assist him in obtaining employment. He speaks, reads and writes Arabic and English and the Tribunal notes that English is one of Pakistan’s two official languages. The Tribunal is not satisfied that he will suffer discrimination in employment which would prevent him finding employment or being unable to subsist. The Tribunal is not satisfied that any harm he suffered as a result of discrimination in employment would be to such a level as to constitute serious harm.

62.     The independent country information provided by the [appellant] refers to some members of the Bengali community being refused passports in Pakistan and the [appellant] has provided a letter from the Office of the Sr. Superintendent of Police Security, Special Branch which refers to a National Identification Card as not being sufficient evidence of nationality. However, the Tribunal considers that the [appellant]’s circumstances are different in that the Pakistani authorities have already verified that he is a Pakistani citizen and he has been issued with a Pakistani passport and National Identification Card in the past. Therefore, the Tribunal is not satisfied that there is a real chance that the [appellant] would be refused a Pakistani passport in the future.

63.     The Tribunal has carefully considered the country information above which refers to the vulnerability of Rohingya in Pakistan to extortion from the authorities. While many of the reports suggest that such vulnerability is often borne from uncertainty about the legal status of Rohingya because of large numbers of illegal immigrants in Pakistan, nevertheless even Rohingya who are able to produce authentic documentation may have that documentation rejected and be falsely accused of being illegal and subjected to extortion on this basis. The country information suggests that the Pakistani courts acquit those who have documentary proof of citizenship which suggests to the Tribunal that the Rohingya in Karachi who have spent many years in jail, as referred to above, are those without citizenship papers. The Tribunal considers that this does not apply to the [appellant]. Nevertheless, the Tribunal has considered whether there is a real chance of the [appellant] being subjected to extortion on a regular basis, or being detained before the matter goes to court, because of his ethnicity and whether this would constitute serious harm. The Tribunal does not accept that low level extortion that does not affect the [appellant]’s capacity to subsist would be sufficient to constitute serious harm. The Tribunal is not satisfied on the basis of the evidence before it that there is a real chance that the [appellant] would be subject to extortion at…such a level as to threaten his capacity to subsist or that he would be unable to pay the extortion required so that there is a real chance that he would be detained. The [appellant] has family living and working in the UAE. He is educated and experienced. He has been able to access funds to travel extensively internationally. The Tribunal finds that the chance of him being detained as a Rohingya is remote.

13    On the strength of those observations (and others not presently relevant), the Tribunal concluded that the appellant was not a person in respect of whom Australia owed protection obligations under the Refugees Convention and, therefore, did not satisfy the criterion for which s 36(2)(a) of the Act provided.

14    The Tribunal then considered whether the appellant satisfied the criterion for which s 36(2)(aa) of the Act provided. It observed:

83.     The Tribunal does not accept that the [appellant] would be unable to obtain employment for the reasons discussed above. It does not accept that there is a real risk that he would be refused a passport for the reasons discussed above. For the reasons set out above, it considers that the chance of the [appellant] being subjected to torture or denied medical treatment is remote. In relation to extortion it does not accept that low level extortion would constitute cruel or inhuman treatment or punishment as such extortion is inflicted as a means of financial gain for the extortionist. The Tribunal does not accept that it is intended to inflict severe pain or suffering. Likewise, the Tribunal does not consider that it would constitute degrading treatment or punishment as it is not intended to inflict extreme humiliation. For the reasons set out above, the Tribunal does not accept that there is a real risk of the [appellant] being detained for a failure to pay the extortion.

15    On the strength of those observations, the Tribunal concluded that the appellant was not a person in respect of whom there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Pakistan, there was a real risk that he would suffer significant harm.

The FCCA Judgment and the present appeal

16    By his Judicial Review Application, the appellant submitted that the Tribunal Decision was the product of jurisdictional error and, as such, should be set aside so that his Visa Application might be reviewed afresh (and according to law). Of the grounds that he pursued to that end, only the following are relevant in the context of the present appeal:

1.     The Tribunal misinterpreted the applicable law or misapplied the law to the facts

Particulars:

(i)     The Tribunal stated at [63] of its decision, in relation to the vulnerability of Rohingya in Pakistan to extortion from the authorities:

..[.]the Tribunal has considered whether there is a real chance of the [appellant] being subjected to extortion on a regular basis, or being detained before the matter goes to court, because of his ethnicity and whether this would constitute serious harm. The Tribunal does not accept that low level extortion that does not affect the [appellant]’s capacity to subsist would be sufficient to constitute serious harm. The Tribunal is not satisfied on the basis of the evidence before it that there is a real chance that the [appellant] would be subject to extortion at a [sic] such a level as to threaten his capacity to subsist or that he would be unable to pay the extortion required so that there is a real chance that he would be detained.

(a)     The Tribunal failed to consider whether extortion of the [appellant] by the authorities because of his ethnicity/particular social group, by itself, could constitute persecution. Rather, the Tribunal erroneously required that the extortion of the [appellant] by the authorities had to have the additional element of threatening his capacity to subsist before that extortion could constitute persecution.

…

2.     The Tribunal decision is arbitrary, irrational, unreasonable or illogical.

Particulars:

(i)     The Tribunal stated at [63] of its decision, in relation to the vulnerability of Rohingya in Pakistan to extortion from the authorities:

..[.] the Tribunal has considered whether there is a real chance of the [appellant] being subjected to extortion on a regular basis, or being detained before the matter goes to court, because of his ethnicity and whether this would constitute serious harm. The Tribunal does not accept that low level extortion that does not affect the [appellant]’s capacity to subsist would be sufficient to constitute serious harm. The Tribunal is not satisfied on the basis of the evidence before it that there is a real chance that the [appellant] would be subject to extortion at a [sic] such a level as to threaten his capacity to subsist or that he would be unable to pay the extortion required so that there is a real chance that he would be detained.

(a)     In the event that it is found that the Tribunal did not fail to consider whether extortion of the [appellant] by the authorities because of his ethnicity/particular social group, by itself, could constitute persecution, any finding (if it is determined that such a finding was made) that extortion from the authorities does not constitute persecution is arbitrary, irrational, or unreasonable or illogical, such that it failed to exercise its jurisdiction.

17    The FCCA did not accept that the Tribunal Decision was attended by jurisdictional error in either of those respects. By his appeal to this court, the appellant advances three grounds, only the latter two of which were pressed. Those two grounds were as follows, namely (errors original):

2.     The learned judge erred by finding that the Administrative Appeals Tribunal had not misinterpreted the applicable law or misapplied the law to the facts.

Particulars:

(A)     The learned judge erred by finding that the Administrative Appeals Tribunal had not misinterpreted the applicable law or had not misapplied the law to the facts because:

(i)     The Tribunal had not considered whether extortion of the Appellant by the authorities, motivated because of his ethnicity/particular social group, by itself, could constitute persecution. The learned judge erred by finding to the contrary.

(ii)     The Tribunal erroneously required that the extortion of the Appellant by the authorities had to have the additional element of threatening his capacity to subsist before that extortion could constitute persecution. The learned judge erred by finding that the Tribunal did not incorporate that additional element.

3.     The learned judge erred by finding that the Administrative Appeals Tribunal’s decision was not illogical, arbitrary, irrational or unreasonable.

Particulars:

(A)     The learned judge erred by finding that the Tribunal’s was not illogical, arbitrary, irrational or unreasonable, by distinguishing SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175 in circumstances where that case applied because, contrary to the learned judge’s reasons:

(i)     The Tribunal had to determine how long the extortion would continue. It failed to do so.

(ii)     The Tribunal had no evidence that the Appellant could afford to maintain ongoing extortion payments, presumably for the lifetime of the Appellant.

(iii)     The Tribunal had not considered whether the amount required to be paid would increase over time, and what would happen if he did not pay or could no longer pay.

(iv)     The Tribunal did not consider whether the Appellant would pay out of fear of harm.

18    It is unnecessary to explore in detail the reasons of the FCCA in dismissing the appellant’s Judicial Review Application. At issue in this appeal is whether or not the Tribunal Decision was affected by jurisdictional error in either of the ways alleged in the notice of appeal. If it was, then it will follow that the FCCA erred by holding otherwise and the appeal will succeed. If it wasn’t, then it will follow that the FCCA was correct to decide as much and the appeal will be dismissed. Either way, it is upon the Tribunal Decision that the court’s attention should focus.

19    For the reasons that follow, the Tribunal Decision was the product of jurisdictional error, which this court should (and will) correct by means of a grant of prerogative relief.

Ground 2: failure to understand or apply applicable law

20    The appellant’s first appeal ground charges the Tribunal with having erred by misunderstanding the law that it was to apply in its consideration of whether or not the appellant satisfied the criteria for which s 36(2)(a) of the Act provided. He complains that the Tribunal wrongly failed to consider whether the extortion to which the Tribunal accepted that he would likely be subjected upon return to Pakistan could, by itself, amount to persecution sufficient to satisfy that criteria. In so doing, the appellant charges the Tribunal with having “…fail[ed] to assess whether there is a real chance of persecution.”

21    Whether the appellant could satisfy the criterion for which s 36(2)(a) of the Act provided turned upon whether he held a well-founded fear of being persecuted in Pakistan for reasons of (amongst other attributes) his Rohingya ethnicity. That, inevitably, invited consideration of what might happen to him were he to return to Pakistan, whether the consequences for him of such a return bore a sufficient connection to his ethnicity, and whether any such consequences rose to the standard of persecution. It is in respect of that last issue that ss 91R(1)(b) and 91R(2) of the Act operated: in order to qualify as relevant persecution, the consequences to which the appellant would be subjected upon return to Pakistan needed to be such as would visit “serious harm” upon him.

22    As the summary appearing above makes clear, the Tribunal accepted in this case that the appellant, like other Rohingya in Pakistan, could find himself falsely charged (or at least accused) of residing in Pakistan illegally. The threat of such false charges, it accepted, was a common method by which police might extract bribes (or otherwise extort money) from Rohingya residents. Absent payment of the amounts demanded, Rohingya residents could expect (at least potentially) to be arrested, charged and detained pending a hearing. One obvious way to avoid being arrested, charged and detained on false accusations of illegal residency would be to pay the amount or amounts demanded. In circumstances where the demanded amounts were not substantial, that solution was not especially onerous. Such was the reasoning that the Tribunal adopted.

23    At issue presently is whether it was impermissible for the Tribunal to reason that the question of whether the harm to which the appellant would be at risk in Pakistan was harm that could potentially rise to the standard of persecution under the Act was a question that it didn’t need to consider because, either way, that harm could be avoided.

24    The appellant urges that the court answer that question in the affirmative. He placed some reliance upon the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (hereafter, “S395”). That case involved a homosexual couple who claimed that they would be harmed for reasons of their sexual orientation if they were returned to their native Bangladesh. The tribunal in that case accepted that it was not possible to live openly as homosexual men in Bangladesh; but that, in any event, the visa applicants practiced their sexuality discreetly and in a manner unlikely to attract reprisal. Because of that, it was not satisfied that their fear of persecution was well-founded. The High Court, by majority, determined that such reasoning involved an incorrect interpretation or application of the applicable law, and remitted the matter back to the tribunal for further hearing.

25    At 490-491 [43], McHugh and Kirby JJ (who, with Gummow and Hayne JJ, formed the majority) made the following observations:

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

26    Gummow and Hayne JJ reached a similar conclusion, observing (at 503 [88]):

The Tribunal did not ask why the appellants would live “discreetly”. It did not ask whether the appellants would live “discreetly” because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well‑founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention. That the Tribunal was diverted in that way is revealed by considering the three statements in its reasons that are referred to earlier: first, that it is not possible to “live openly as a homosexual in Bangladesh”; secondly, that “[t]o attempt to [live openly] would mean to face problems”; and, thirdly, that “Bangladeshi men can have homosexual affairs or relationships, provided they are discreet”. Nowhere did the Tribunal relate the first and second of these statements to the position of the appellants. It did not consider whether the adverse consequences to which it referred sufficed to make the appellants’ fears well founded. All that was said was that they would live discreetly.

27    Their Honours’ reasoning confronts a circularity that, as cases such as S395 and the present matter illustrate, is not easily resolved: if the harm that a visa applicant fears can and will be avoided (for example, by means of alteration to the manner in which an applicant will conduct him or herself), can that fear fairly be described as well-founded? On the strength of the passages extracted above, the High Court in S395 answered that question in the affirmative.

28    18 months after its decision in S395, the High Court again confronted that circularity in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 (“NABD”). That case concerned a claim for protection by a former adherent of the Islamic faith who had converted to Christianity. He claimed that, if returned to his native Iran, he risked being executed for apostasy. The tribunal in that case rejected that claim. It relied upon country information that suggested that Christianity was tolerated within Iran, provided that its adherents practiced their faith discreetly. It found that the applicant was someone who practiced his faith in that discreet manner. Hence, it concluded that he did not have a relevant, well-founded fear of persecution. On that occasion, the High Court (again by majority) declined to set aside the tribunal’s decision.

29    Gleeson CJ (who, with Hayne and Heydon JJ, formed the majority) made the following observations (at 4 [9]):

The country information on the subject of the treatment of Christians in Iran distinguished between “converts to Christianity who go about their devotions quietly and maintain a low profile [who] are generally not disturbed” and persons involved in the “aggressive outreach through proselytising by adherents of some more fundamental faiths”. The distinction thus drawn is far from clear-cut, but it is not meaningless. It was open to the tribunal, as a matter of factual judgment, to accept the distinction offered by the information, and to regard it as useful in considering the position of the appellant. The tribunal noted that the Uniting Church was not one of the “fundamental faiths” that require proselytising by their adherents, and it did not regard the conduct of the appellant since he had converted to Christianity as involving “aggressive outreach”. It made the following findings:

The Tribunal finds that the applicant is able to practise his faith in Iran as he has done outside that country and without facing a real chance of persecution. It is not satisfied that there are any essential aspects of his faith he would be constrained in practising in Iran due to any well-founded fear of persecution.

In weighing all the evidence, including the applicant’s practice of his faith to date and the tenets of that faith, the Tribunal finds that any decision to avoid proselytizing in Iran or of actively seeking attention on matters of religion is not inconsistent with his beliefs and practices. It finds that the present applicant is not constrained in the practice of his avowed faith, nor would he be in Iran, due to a perception that to behave more openly or aggressively would leave him at risk of persecution.

30    His Honour went on to find that the tribunal’s finding that the applicant in that case was someone who would practice his faith discreetly was one that was open to it, and that its conclusion that his fear of persecution was not well-founded was not the product of jurisdictional error.

31    Hayne and Heydon JJ reached similar conclusions (at 40 [167]-[168]):

The tribunal related its conclusions to the information it had about conditions in Iran. That information drew a distinction which, whatever its difficulties and imperfections, the tribunal had to consider. It concluded that the appellant’s conduct in Australia, if continued in Iran, was properly described as not being proselytising or actively seeking attention. That is, the tribunal concluded that the appellant’s conduct would fall wholly within one of the descriptions of conduct given in the information it had about treatment of Christians in Iran.

At no point in its chain of reasoning did the tribunal divert from inquiring about whether the fears which the appellant had were well founded. It did not ask (as the tribunal had asked in Appellant S395/2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran. Based on the material the tribunal had, including the material concerning what the appellant had done while in detention, it concluded that were he to practise his faith in the way he chose to do so, there was not a real risk of his being persecuted.

32    I confess some difficulty reconciling S395 with NABD. In the former, it was not enough that an applicant would conduct himself in such a way as to avoid persecution (in the form of harm visited for relevant reasons); there might still be a well-founded fear of relevant persecution founded upon the need to conduct oneself in that way, and the tribunal was led into error insofar as it failed to consider that need. In the latter case, it was enough: an applicant could be thought not to possess a well-founded fear of relevant persecution in circumstances where he or she would conduct themselves in a manner sufficient to avoid the persecutory harm that was feared.

33    To a degree, that difficulty is ameliorated by subsequent observations of the High Court. In Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 (“SZSCA”), the majority (French CJ, Hayne, Kiefel and Keane JJ) explained (at 325 [17], references omitted):

The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the inquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct inquiry was directed – whether the fear of persecution was well founded – had not been addressed.

34    Gageler J had a different take on S395. His Honour (at 330 [36]) summarised the ratio of that case as follows (emphasis added):

The principle for which [S395] stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would…hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution.

35    For the reasons that follow, I do not consider it necessary to attempt to reconcile S395 with NABD. On either analysis, I consider that the appellant’s contention should succeed. Whether he possesses a well-founded fear of relevant persecution required analysis of what is likely to happen to the appellant if he is removed from Australia to Pakistan (as best as that might be ascertained). Consideration of that issue does not turn upon what the appellant could do to avoid relevant persecution. It turns upon what is likely to happen and why; a predictive exercise informed, perhaps, by how the appellant is likely to conduct himself (see NABD; cf S395), but not by speculation about the measures that he may be able to adopt in order to avoid persecutory harm.

36    In the present case, the Tribunal did not direct its attention to the central question upon which the Visa Application turned, namely: what will happen to the appellant if he returns to Pakistan and why? At [63] of its reasons (above, [12]), the Tribunal “…considered whether there is a real chance of the [appellant] being subjected to extortion on a regular basis, or being detained before [any false charge of illegal residency] goes to court…” That was a fair analogue of the first part of the “central question” to which I refer above. However, subsequent analysis does not venture beyond the quality of the extortionate demands to which the Tribunal accepted that the appellant would be subjected. It found, as it may well have been entitled to, that those demands would not be so great as to be beyond the appellant’s means to satisfy; and, relatedly, that they would not have been at a level that might threaten his capacity to subsist. There was, however, no consideration given to how the appellant would deal with those demands if or when faced with them. Instead, the Tribunal’s analysis covers, in terms, only what the appellant could do in those circumstances; not what he would do.

37    That was not the inquiry upon which s 36(2)(a) of the Act required that the Tribunal embark. Its excursion into that territory came at the expense of consideration of the issue of which that section did require analysis, namely: what will happen to the appellant if he is returned to Pakistan and why? The Tribunal’s failure to direct itself to that inquiry amounts to jurisdictional error.

38    Even if that be wrong, and the Tribunal’s reasoning at [63] of its decision should properly be understood, as the Minister contended, as encompassing an implicit finding that the appellant, upon returning to Pakistan, would (as opposed to could) pay whatever “low level” demands were made of him, the circumstances of this case still bear an overwhelming resemblance to those that confronted the High Court in S395. To adapt the observations of McHugh and Kirby JJ: to determine the issue of whether there was a real chance that the appellant would be persecuted as he feared without determining whether his likely conduct in Pakistan (namely, meeting whatever extortionate demands were made of him) was influenced by the threat of harm (relevantly in the form of arrest and detention) is to fail to consider that issue properly.

39    In SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 (Logan, Robertson and Kerr JJ), this court dealt with facts analogous (though not identical) to those of the present case. There, a tribunal had held that a visa applicant whose mother had, prior to his departure for Australia, paid sums of money demanded by corrupt government officials who had threatened to harm him did not have a well-founded fear of relevant persecution. It did so despite also finding that those sums would continue to be demanded and paid upon his return to his home country (and that the demands were relevantly connected to a protected attribute). An application for judicial review of that decision failed in the FCCA; but an appeal against that dismissal was upheld unanimously in this court. Although addressed through the prism of legal unreasonableness, the tribunal’s reasoning was described as “perverse” (at 410 [14] (Logan J)) and “illogical” (at 420, [56] (Robertson and Kerr JJ)).

40    In SZSCA, Gageler J observed (at 330 [36], references omitted):

The rationale for the principle [for which S395 stands] was encapsulated by Dyson JSC as a member of the Supreme Court of the United Kingdom which adopted the principle in HJ (Iran) v Secretary of State for the Home Department:

“If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him. The Convention would be failing in its purpose if it were to mean that a gay man does not have a well-founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country.”

(Emphasis in original.)

41    In assessing whether the appellant satisfied the criterion for which s 36(2)(a) of the Act then provided, the Tribunal was required to consider what, if any, harm might befall him if he were to leave Australia for Pakistan. The Tribunal’s consideration of that issue was obscured by its consideration of steps that the appellant might be able to take to avoid potential persecutory harm. It did not consider what would happen to the appellant, why it would happen, or why any corrective measures that might be open to him might be necessary. By those failures, it must be understood as having misconceived of the task with which it was entrusted. Respectfully, the FCCA erred insofar as it concluded otherwise.

42    Ground two should be upheld and the appeal should be allowed for that reason.

Ground 3: legal unreasonableness

43    Proposing, as I do, to uphold the appeal on the appellant’s second ground, it is not strictly necessary that I should address the contentions that were advanced in respect of the third ground. Nonetheless, I intend to make some brief observations on that score, if for no other reason than in recognition that the point was fully ventilated before me.

44    By his third appeal ground, the appellant complains that it was illogical, irrational or legally unreasonable for the Tribunal to reason that any extortion to which he would be subjected in Pakistan would not amount to relevant persecution; and that the Tribunal Decision was, therefore, beyond what the jurisdiction conferred upon the Tribunal permitted. Principally, that submission proceeds upon the assertion that the Tribunal was obliged to but didn’t consider material particulars of the extortion to which it accepted that the appellant would be subjected in Pakistan, including the timeframe over which those demands might continue, the likelihood (or otherwise) that those demands might increase over time, and the appellant’s capacity to meet those demands in the face of any such increases.

45    Respectfully, I do not accept that the Tribunal Decision was, in any of those ways, the product of extreme illogicality or irrationality, nor (to the extent that it might be applicable) legal unreasonableness. The evidence before the Tribunal was sufficient to ground a finding that the appellant would be able to meet any extortion to which he was subjected. Its failure to address the particulars to which the appellant adverts does not bespeak extreme illogicality or irrationality in its reasoning process; it reflects little more than that the evidence did not permit of findings on those scores. It might well have been open to the Tribunal to reach different conclusions in the absence of such evidence (including, perhaps, that the demands that the appellant might expect to field could meet the standard of persecution); but it cannot be said that they were the only conclusions open to be drawn.

46    Ground three is not made out.

Conclusion

47    The appeal should (and will) be upheld. There is no reason to depart from the usual rule that costs should follow the event.

Associate:

Dated:    25 March 2020