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[2016] FCA 1363
Federal Court of Australia
2016-11-17
Perry J
Original judgment source is linked above.
PERRY J: 1 INTRODUCTION [1] 2 PROTECTING THE CONFIDENTIALITY OF THE APPELLANT: s 91X OF THE ACT [4] 3 BACKGROUND [6] 3.1 The application for a visa and decision of the Minister's delegate [6] 3.2 The decision of the Tribunal [8] 3.3 The decision of the Federal Circuit Court [17] 4 RELEVANT PROVISIONS OF THE MIGRATION ACT [22] 5 CONSIDERATION [26] 5.1 Ground 2: the Tribunal's consideration of the evidence as to whether the appellant was targeted by the General's son in the 2012 attack [29] 5.2 Ground 1: the Tribunal's consideration of evidence as to the relationship between the appellant's family and the General's family. [47] 6 CONCLUSION [48]
3.1 The application for a visa and decision of the Minister's delegate 6 The appellant is a citizen of Liberia. He fled Liberia in 1992 and was transferred by the United Nations Refugee Agency to a town near a refugee camp in Guinea until 2007 (save for a brief period in 2002-2003 when he temporarily returned to Liberia). He returned to Liberia in 2007, but moved to Guinea for a year between 2010 and 2011 before returning to Liberia again in 2011. 7 The appellant arrived in Australia in November 2012 on a business visa. He applied for the protection visa in June 2013. That application was refused by a delegate of the Minister on 30 January 2014, and the appellant applied for review of the delegate's decision to the Tribunal.
3.2 The decision of the Tribunal 8 On 19 May 2014, the Tribunal received submissions from the appellant's representatives, together with country information including general information about human rights abuses in Liberia, ongoing human rights violations perpetrated during the war in Liberia, and ongoing problems with the criminal justice and security systems in Liberia. A statement by the appellant and a letter from his church attesting to his good character were attached to the submissions. 9 The appellant appeared before the Tribunal on 28 May 2014 to give evidence and present arguments. He was represented at the hearing by his solicitor/migration agent who made oral submissions at the close of the hearing. The Tribunal also received a fax from the appellant's representative after the hearing which included further evidence in support of his claims. 10 On 9 July 2014, the Tribunal affirmed the delegate's decision not to grant the appellant a protection visa. 11 The appellant's claims for protection before the Tribunal can be summarised as follows: (1) The appellant claimed to fear persecution by reason of an imputed political opinion at the hands of former rebels who were responsible for atrocities perpetrated against his family in 1992. In that regard, the appellant gave evidence as follows. (a) When the appellant sought to flee Liberia in 1992, the appellant, his father and his sister were captured by rebels. During the capture, the appellant was tortured, his sister was raped and his father was killed. The appellant believed that a former general in the rebel group (the General) was responsible for the death of his father. (b) The appellant returned to Liberia in 2007. While the General had died by that time, the appellant claimed that the General's son threatened to kill him. The appellant said that he thought that before the General died, he told his son about the appellant. The appellant feared that the son and former rebels would try to kill him because they thought he would take a case against the General to try to seek justice for his father's death, even though he has no interest in seeking justice. (c) Several months after he was threatened in 2007, the house in which the appellant was staying was ransacked. (d) In 2008, the appellant's half-brother was murdered by unknown assailants. (e) During 2011 and 2012, the house in which the appellant was living was attacked on three occasions. On two occasions, the appellant was not present. However, he was present but hidden on one of the occasions. (f) In 2014, the appellant's mother's home was attacked by robbers while she was away from home. (2) The appellant also claimed to fear harm on the basis of his religion. In particular, the appellant was Christian and his former partner was from a Muslim family. He feared the appellant's former father-in-law could organise for a religion group to "get rid of him". This harm was also said to form the basis of the appellant's claim for complementary protection: see [18] of Tribunal's reasons. 12 The Tribunal accepted the appellant's oral evidence in its entirety (Tribunal's reasons at [25]). However, the Tribunal found that the appellant's subjective fear of being targeted by the General's son did "not meet the threshold of a 'real chance' but rather it is speculative and remote" for two main reasons. First, it was not plausible that the General's son or associates would want to kill the appellant now in case he wanted to seek justice for his father's death. Secondly, the Tribunal was not satisfied that the appellant's past experiences in Liberia demonstrated that he will be harmed by former rebels (at [50]). 13 As to the latter, the Tribunal considered that the evidence demonstrated that the attacks on the appellant's house were generalised and random (at [56]), and was not satisfied that the attack on his mother's house was linked to the former rebels pursuing the appellant (at [57]). The Tribunal also "considered the totality of the applicant's past experiences and circumstances", including its finding "that the appellant and his family had experienced incidents in Liberia of a generalised nature", and found (at [58]) that: Considering the applicant's past experiences and circumstances as a whole, the Tribunal finds that he does not have a well-founded fear of persecution now or in the reasonably foreseeable future. The applicant has a high subjective fear of being killed by [the General's son] or his associates but the chance of him being harmed now or in the reasonably foreseeable future is speculative and remote. For this reason, the Tribunal finds the applicant's risk of persecution falls below the real chance threshold. 14 Further, the Tribunal did not accept that there was an objective basis for the appellant's fear that Islamic groups would kill him at the behest of his former father-in-law (at [65]), and was not satisfied that the evidence before it established that the appellant's subjective fear in this regard met the 'real chance' threshold (at [67]). 15 The Tribunal concluded at [70] that, while sympathising with the appellant that he faced such atrocious crimes during the war in Liberia over 20 years ago, it was not satisfied that there is a real chance that he will face persecution by the General's son, his associates or former rebels in Liberia by reason of his political opinion or imputed political opinion. Nor was the Tribunal satisfied that there is a real chance he would be persecuted by his former father-in-law or any Islamic groups by reason of his religion. Accordingly he did not meet the refugee criterion in s 36(2)(a) of the Act. 16 For the same reasons, the Tribunal found that there was a remote chance (only) that the appellant would face significant harm in Liberia and therefore he did not meet the complementary protection criterion in s 36(2)(aa) of the Act (at [73]).
3.3 The decision of the Federal Circuit Court 17 The appellant ultimately relied upon two grounds of judicial review in the Federal Circuit Court, namely: 1. The second respondent failed to properly consider the applicant's claim due to language difficulties and inadequate interpretation: a. the interpreter arranged by the second respondent and present for the hearing of the applicant's oral evidence was an interpreter in Liberian English, not the applicant's native language of Kissi; b. most of the hearing was conducted without any assistance from the interpreter even when communication difficulties were manifest; c. the second respondent's reasons for decision contain factual errors in their account of the applicant's oral evidence; d. These factual errors are relied upon by the second respondent as a basis for refusing the applicant's claim. … 6. The decision of the second respondent contained error going to jurisdiction by relying on flawed communications with the applicant in circumstances where there was inadequate interpretation of the applicant's oral evidence. 18 A copy of a transcript was prepared for the purposes of the application for judicial review from the recording of the hearing before the Tribunal and was admitted into evidence below. As is evident from the transcript, the appellant (in a process that was less than ideal) gave his evidence at times by responding directly to the Tribunal and at other times through the interpreter. The transcript recorded as "unclear", passages which the transcriber was unable to decipher from the recording of the appellant's evidence before the Tribunal (including his evidence as interpreted by the interpreter from time to time), as well as passages (which were less frequent) where the transcriber could not understand what was said by the Tribunal Member. 19 Significantly, counsel for the appellant confirmed in the Court below that this is not a case where it was suggested that the interpreter made any errors in that evidence which was the subject of interpretation by the interpreter (reasons below at [5]): cf e.g. BZAID v Minister for Immigration and Border Protection [2016] FCA 508. Rather, the primary judge identified "the kernel of the argument" developed by then counsel for the appellant that "the Tribunal failed to use the interpreter and permitted the applicant to give direct evidence in circumstances where an interpreter should have been used." That ground was not argued on the appeal. 20 The primary Judge explained at [9] that two matters were alleged below to be the subject of error by the Tribunal: The first related to evidence given by the applicant about the alleged closeness of the family relationship between his family and [the General]. The second error related to an incident in 2012 and the applicant's oral evidence about whether that incident was generalised and whether the applicant was targeted in relation to that incident. 21 The Federal Circuit Court dismissed the application for judicial review on 24 May 2016. First, the primary judge held at [21] that the transcript of the Tribunal hearing did not support the proposition that there was a factual error in the Tribunal member's understanding of the appellant's evidence in relation to the allegedly close connection between the families. With respect to the second error, the primary Judge rejected the proposition that there were language difficulties or interpretation difficulties in the conduct of the Tribunal hearing (at [28]-[29]).
5.1 Ground 2: the Tribunal's consideration of the evidence as to whether the appellant was targeted by the General's son in the 2012 attack 29 In support of ground 2, the appellant relied first upon the following portion of the transcript of the Tribunal hearing: [Tribunal]: … I mean there was the time from January 2012 to November - sorry, January 2011 to November 2012, those two years. Just wondering if there was any targeted or any attacks on the house or if you're saying that there were lots of problems with former rebels in the town and in security generally. [appellant]: Security generally but I was still [targeted]. [Tribunal]: You were targeted… [appellant]: Yeah, I…. [Tribunal]: [a feeling that you were targeted] [appellant]: Yeah I was still fear of those guys and the community [unclear even in the house] … still armed men used to go there…. (emphasis in bold; references to times omitted) 30 Shortly thereafter the transcript records the following exchange: [Tribunal]: So who do you think they are? [appellant]: I feel that those guys are [unclear the same ones]. Those guys are targeting to kill me, to get rid of me, of my father's story. [Tribunal]: Yeah sorry but you think they're former [rebels]? Is that what you're saying? [appellant]: [unclear I believe] because I don't know [unclear them physical ]. I never see [unclear them]… [Tribunal]: So you suspect that they're people who were targeting you and you suspect that they're former rebels? [appellant]: They [unclear want to attack yes] yes. [Unclear it was that]. (references to times omitted.) 31 The appellant gave evidence in the Federal Circuit Court that he had listened to the recording of the hearing while reading the transcript. When his words were marked as "unclear" in the transcript, the appellant told a friend what he had said. That friend then wrote in pen on the transcript the words that the appellant recalled saying at that point in his evidence. The handwritten words are reproduced in italics in the quotations above. No issue was taken by the Minister with the accuracy of the transcript or with the insertions made on behalf of the appellant. 32 Nothing in the exchanges from the transcript quoted above indicate that at this stage the Tribunal misunderstood the appellant's evidence that he thought that he was being targeted in the attacks on his house and on his mother's house. 33 The Tribunal dealt with this aspect of the appellant's claims at a number of parts of its reasons. First, the Tribunal summarised the appellant's evidence as follows: 11. The applicant stated that he returned to Liberia from 2011 to 2012 and was staying sometimes with his friend… and at other times with other people because there were people that would threaten them at the house, which happened 3 times in 3 years and once when he was home. He said that in 2012 armed men came to the house when he was home and asked for everybody who was living there, beating some of the occupants and popping out one person's eye. He said he did not see the attackers because he was hiding… The Tribunal asked if it was generalised violence or targeted against him. He said that it was generalised violence but he feared for his life. The applicant said that he suspects the attackers were targeting him. He said there was no point reporting the incident to the police because they would not do anything. … 14. The applicant believes that the [General's son] is targeting him now. He says that [the General] knew that his father was working as army personnel prior to his death in 1992 because [the General] used to visit his family near the home of the applicant's father. The applicant said that he thinks that [the General], prior to his death… told his son about the applicant. He said that [the General's son] and former rebels will try to kill him because they think that the applicant will take a case against [the General] to try to seek justice for his father's death.… 34 The Tribunal considered the evidence relating to the attacks at the house where the appellant was staying at [56] of its reasons as follows: Concerning the attack by armed men on the house where the applicant was staying in 2012, the applicant stated in his oral evidence to the Tribunal that this was generalised violence and not specifically directed against him. The applicant did not see the attackers. He stated that others in the house were beaten during this incident. He states that there were three attacks on the house in a one-year period and this was the only one at which he was present. The Tribunal has had regard to an unsigned interview record between the applicant's representative and his friend… whose house was attacked. He said the attack was perpetrated by armed guards and he does not want to believe they were from the government. When asked why he thought that the persons were looking for the applicant, he said that "they said that if they were going to meet that guy who killed [the applicant's] father". He said that the applicant told him that his family were being traced. In his oral evidence to the Tribunal, the applicant said that the attack was generalised and not directed against the applicant. The Tribunal places greater weight on the sworn evidence of the applicant than the unsigned record of interview between the applicant's representative and [the applicant's friend]. The Tribunal finds that the applicant has a subjective fear that the house where he stayed was attacked because he was targeted and that this fear is understandable in light of the applicant's ongoing trauma from experiences during the war in Liberia twenty years ago. However the evidence before the Tribunal demonstrates that the attack was generalised and random. (emphasis added.) 35 With respect to the attack at the house of the appellant's mother, the Tribunal found at [57] that this was a robbery and not an attack by the General's son or any associates. In this regard the Tribunal found that "[t]he applicant speculated that the attack on the house was directed at him. The Tribunal is not satisfied on the limited evidence before it that any attack on the house of the applicant's mother is linked to formal rebels who are pursuing the applicant." 36 It is apparent, as the appellant submits, that the finding that these attacks were generalised and not directed against the appellant was significant in the Tribunal's reasons for finding that he did not have a well-founded fear of persecution. Specifically, the Tribunal concluded at [58] in considering whether the totality of the appellant's past experiences may give rise to a well-founded fear of being persecuted that: The Tribunal accepts that the applicant fled Liberia in 1992 during the Liberian civil war, at which time he experienced his father's death, his sister's rape and was tortured by the [rebels]. He holds [the General] responsible for his father's death.… He and his family have experienced incidents in Liberia of a generalised nature. Considering the applicant's past experiences and circumstances as a whole, the Tribunal finds that he does not have a well-founded fear of persecution now or in the reasonably foreseeable future. The applicant has a high subjective fear of being killed by [the General's son] or his associates but the chance of him being harmed now or in the reasonably foreseeable future is speculative and remote. For this reason, the Tribunal finds that the applicant's risk of persecution falls below the real chance threshold. (emphasis added) 37 The Minister accepted on the appeal that the first sentence of paragraph [56] of the Tribunal's reasons (that the appellant stated that the attack in 2012 was generalised violence not specifically directed against him) was "problematic because it's not correct". That concession was rightly made. As the Minister accepted, read in the context of the Tribunal's question, the appellant's evidence was to the effect that there were problems with security generally but he was still targeted in the attack. However, the Minister submitted that the error was not material because the Tribunal effectively corrected itself later in paragraph [56] where the Tribunal found that the appellant had a subjective fear that the house where he stayed was attacked because he was being targeted. The Minister submitted in the alternative that, even if the relevant factual misunderstanding had not been corrected, it was not a jurisdictional error because it did not result in the Tribunal failing to consider a claim or an essential integer of the appellant's claim. In the Minister's submission, the essential integers of the appellant's claim involved the appellant's father's death at the hands of the General, the threat from the General's son to kill the appellant, and the reason for that threat. 38 I do not accept those submissions. 39 First, it is well established that a decision-maker is required to correctly construe and consider claims and their component integers made by an applicant or apparent on the material before the decision-maker: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at 394 [24] (Gummow and Callinan JJ (Hayne J agreeing at 408 [95])). As Allsop J (as his Honour then was) held in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 (Htun) at 152 [42]: To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. 40 In this regard, it should be borne in mind that claims in this context are made by way of evidence as opposed, for example, to something akin to a pleading. Accordingly, it is necessary to consider what claims arise from the evidence, even though not all of the evidence will bear the character of a claim in the relevant sense. 41 Secondly, it was a pivotal and express component of the appellant's claims to fear persecution or serious harm from the rebels that, in the past, he had been the subject of targeted attacks, including the attack against his friend's home where he was saying in 2012: see [11(e)] above and the Tribunal's reasons at [11]. In this regard, in assessing whether there is a real chance of persecution for a Refugees Convention reason, it is also well established that past events may assist in assessing what is likely to occur in the future. As the joint judgment held in Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 574, "[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence." Thus, in the context of applying the definition of a refugee in the Refugees Convention, the joint judgment in Guo held at 575: Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. 42 Thirdly, the evidence of the appellant was probative, the Tribunal having accepted the appellant as a witness of truth. It was also supported by evidence of the appellant's friend (albeit an unsigned record of interview) to which the Tribunal referred at [56] of its reasons. 43 Fourthly, contrary to the Minister's submissions, it was plainly material to the Tribunal's decision that the appellant's fear of persecution was not well-founded, that he and his family had been the subject of attacks of a generalised nature only and not directed against him: see in particular its reasons at [58]. In making that finding, the Tribunal rejected at [56] the evidence of the appellant's friend that the attack in 2012 at the friend's house where the appellant was staying (and when the appellant was present) was targeted on the basis that it preferred the appellant's evidence that this was generalised violence. However, as is apparent and conceded, that was not the appellant's evidence. 44 Finally, while the Tribunal appears towards the end of [56] to correctly state the appellant's evidence that he believed he was targeted in the attacks, it nonetheless concludes by rejecting that claim on the basis that the evidence, which includes its erroneous understanding of the appellant's evidence that the attack was generalised violence, demonstrated that the attack was generalised and random. As such, I do not accept the Minister's submission that the Tribunal effectively corrected the error which it had earlier made in describing the appellant's evidence. 45 It follows for these reasons that, in misunderstanding the appellant's evidence and therefore the basis on which he claimed to fear persecution or serious harm, the Tribunal failed to correctly construe and consider an essential integer of the appellant's claims, namely, that past attacks were targeted against him. Moreover, this integer of the appellant's claims was supported by probative evidence and if accepted, may have justified concluding that he had established not only a subjective fear of persecution, but that his fear was well-founded: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at 604 [45] (the Court). Contrary, therefore, to the Minister's alternative submission, this was not merely a case of "errant fact finding" (Htun at 152 [42] (quoted at [39] above); nor, as the appellant submitted, is this a case where the appellant merely seeks impermissibly to take issue with the weight given by the Tribunal to particular evidence. 46 It follows that the Tribunal has fallen into jurisdictional error and the appeal must be allowed.
5.2 Ground 1: the Tribunal's consideration of evidence as to the relationship between the appellant's family and the General's family. 47 In the circumstances it is unnecessary for me to consider ground 1 of the appeal. However, I would note, contrary to the appellant's submissions, that the fact that a person preparing a transcript of the hearing at which she or he was not present has difficulties in understanding everything said in an audio recording of the appellant's evidence does not demonstrate that the Tribunal member had difficulty in understanding the appellant's evidence. The difficulties encountered by the person preparing the transcript could be due to many factors such as a poor quality audio-recording or the appellant speaking too far from the microphone. Nor would I have accepted the appellant's submission that repeated questioning by the Tribunal member about the connection between the appellant's family and the General's family demonstrated that there were "many miscommunications" which amounted to a failure by the Tribunal member to understand the appellant's evidence. To the contrary, the line of questioning recorded in the transcript on this topic suggested that the Tribunal was acting in accordance with the proper discharge of its functions by endeavouring to understand precisely why the appellant said that he might be targeted by the General's associates, given that the General has been held responsible for atrocities against many people in Liberia, and to confirm her understanding of the appellant's evidence.
AZAFH
Minister for Immigration and Border Protection
(2003) 197 ALR 389
(2001) 233 FCR 136
(2013) 210 FCR 505
(1997) 191 CLR 559
(1986) 162 CLR 24
(2001) 206 CLR 323
(1999) 90 FCR 287
(2003) 236 FCR 593