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).