CZH18 v Minister for Home Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The appellant has appealed the decision of the Federal Circuit Court of Australia (FCC) to dismiss his application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (Authority), affirming a decision made by a delegate of the first respondent (Minister) to refuse the appellant's application for a Temporary Protection (Subclass 785) visa. 2 The appellant is a citizen of Afghanistan who arrived in Australia as an unauthorised maritime arrival. In Afghanistan, he worked as a journalist and his main reason for seeking protection was fear of harm at the hands of the Taliban on account of his status as a journalist in Kabul. Both before the FCC and on appeal the appellant alleged that the Authority's decision was affected by jurisdictional error in failing to consider his claim to fear persecution for reason of his membership of a particular social group, being journalists in Afghanistan. The FCC found, and the Minister accepts, that such a claim was made. However, the FCC held that the Authority had not failed to consider that claim, but rather the claim was subsumed in the Authority's findings of greater generality. The Authority: (a) accepted that the appellant may have written some general articles during his employment as a journalist, but did not accept that he had written or published any articles of significance or articles that attracted any adverse attention; (b) noted the appellant's evidence that he had published anonymously or under a pseudonym and observed that the appellant had never personally been threatened and never claimed that any of his employers were subject to any threats because of any articles he had written; (c) was satisfied that the appellant had not suffered any harm, threats or harassment from any group or individual because of his employment as a journalist, or because of any articles he may have written, and did not have an adverse profile whilst working as a journalist; (d) was satisfied that the appellant would not be of any adverse interest to any group or person because of his previous work as a journalist; (e) did not accept that the appellant had stopped working as a journalist because of a fear of harm; (f) did not accept the appellant's claim that he felt a duty to work as a journalist if he returned to Afghanistan and speak on behalf of the Afghan people; and (g) concluded that it was not satisfied that the appellant faced real chance of serious harm because of his past employment as a journalist or his possible future employment in Afghanistan if he returned there. The Authority's reasons included that it did not accept that the appellant would have no other option but to resume work as a journalist, and that his education in Afghanistan, his English skills and his access to family support would assist him to find other employment in Afghanistan in the future. 3 The appellant submitted that it was not sufficient for the Authority to have dealt with his history as a journalist in a generalised way. It was submitted that the Authority's first step should have been to determine whether the appellant was a member of a particular social group, and the Authority's failure to consider the appellant's evidence in the context of the claimed particular social group amounted to jurisdictional error. The appellant submitted that had the Authority turned its mind in the first instance to whether he was a member of a particular social group, being journalists in Afghanistan, "it would have been informed by country information to enable it to define the risks faced by members of that social group and the lengths that members of that social group go to in order to avoid persecution". It was submitted that the Authority fell into the error as described in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 (S395/2002), where at 486 [31] McHugh and Kirby JJ said: In a case like the present, defining the particular social group and the type of harm feared is fundamental in determining whether a member of that group has a well-founded fear of persecution. Only by defining the group and its characteristics or attributes, actual or imputed, can a tribunal of fact determine whether the harm feared is well-founded and is causally related to the particular social group... (footnotes omitted) 4 This case is distinguishable from S395/2002. In S395/2002, the Tribunal found that the appellants were homosexual males who had lived together at various places in Bangladesh and accepted that "homosexual men in Bangladesh constitute a particular social group under the Convention". However, the Tribunal rejected various claims by the appellants that they had suffered persecution or any serious harm as the result of their homosexuality, reasoning that the appellants had lived together for over 4 years without experiencing any more than minor problems with anyone outside their own families and had "clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now": S395/2002 at 481 [9] per Gleeson CJ; 483 [21] and 485 [30] per McHugh and Kirby JJ; 498 [69] per Gummow and Hayne JJ; 502 [84] and 507 [98] per Callinan and Heydon JJ. The error of the Tribunal was that the Tribunal did not consider whether the choice of the appellants to live discreetly was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly: S395/2002 at 487 [35], 493 [51] to 494 [54] per McHugh and Kirby JJ; 503 [88] per Callinan and Heydon JJ. Justices McHugh and Kirby stated at 490-1 [43], in a passage relied on by the appellant in this case: 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. (emphasis in original) The case stands as authority that the fact that a person may need to take steps to conceal his or her religion, nationality, sexuality, political opinion, or some other such characteristic, in order to avoid serious physical or psychological harm may itself amount to persecution. It was in that context that McHugh and Kirby JJ at 486 [31] stated that "in a case like the present" defining the particular social group and the type of harm feared was fundamental in determining whether there was a real chance that a discreet or non-discreet homosexual man in Bangladesh would suffer persecution. 5 In Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317, Gageler J at 330-1 [36]-[37] explained that the principle for which S395/2002 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 or could be expected to 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… … The principle directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic. (footnotes omitted) See also the plurality judgment at 325 [17]; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; 79 ALJR 1142 at 1169 [162] and 1170 [168] per Hayne and Heydon JJ. 6 In the present case, the Authority's finding that it was not satisfied that the appellant faced any real chance of persecution in Afghanistan was not based upon any view that he could avoid persecution by modifying his activities as a journalist. Instead, the finding was based on the Authority's rejection of the appellant's claims that he had an adverse profile while he was working as a journalist, had stopped working because of fearing harm and that he would resume working as a journalist if he returns to Afghanistan. It follows that I do not accept that the Authority's reasons disclose the kind of jurisdictional error identified in S395/2002. 7 This conclusion also resolves the second limb of the appeal, which was that the Authority also fell into error in finding that the appellant faced no risk of harm should he return to Afghanistan because he did not need to return as a journalist. It was contended that as the appellant's qualification was that of a journalist and he had been consistent in his evidence that if he was to return he would resume work as a journalist, the finding of the Authority was "more akin to the impermissible requirement that he behave in a particular way rather than the permissible conclusion that he would not in fact behave in a particular manner upon his return". That submission, with respect, cannot be accepted, as it was the Authority's rejection of the appellant's claim on credibility grounds that he had no option but to resume working as a journalist that led the Authority to conclude that his fear of persecution for being a journalist was not well-founded. 8 Accordingly the appeal should be dismissed with costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.