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[2018] FCA 1716
Federal Court of Australia
2018-12-14
Rangiah J
Original judgment source is linked above.
RANGIAH J: 1 This is an appeal against a judgment of the Federal Circuit Court of Australia dismissing the appellant's application for judicial review of a decision of the Immigration Assessment Authority (the Authority). 2 The Authority affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), refusing to grant the appellant a Protection Visa.
The Authority's decision 3 The appellant is a citizen of Iraq. He arrived in Australia by boat in 2012 as an unaccompanied child. In 2016, he made his application for a Protection Visa. 4 The appellant made several claims concerning events in Iraq that have caused him to fear harm. For present purposes, it is only necessary to refer to his claim that he had been the victim of sexual abuse between the ages of about 10 to 12. 5 The appellant's representative made the following submissions to the Authority about the claim of sexual abuse: The applicant fears serious harm from members of the same tribe because of the previous sexual abuse he suffered. He also fears his family finding out information in relation to the sexual abuse he suffered at the hands of his relatives and members of his tribe. He fears that his tribe would disown him and this is significant in a country with tribal links and family ties are needed to subsist. Being a victim of child sexual abuse, he would face stigma from his society and may be persecuted by militia groups on the basis that he was previously sexually abused by men or on the basis that he [is] perceived to be homosexual. 6 In its reasons, the Authority described the appellant's claim as follows: He was sexually abused by his maternal uncle and some older neighbour boys from 2005 to 2007. He has never discussed this with anyone or sought counselling. He fears that if his family find out about this he will be cut off from them; his father will blame him. 7 The Authority made the following findings: The applicant also claimed in his PV interview that he was the victim of sexual abuse from the ages of 10 to 12. In view of my overall concerns as to the applicants credibility I have significant doubts as to this claim however am prepared to accept it at face value. In the submissions to the delegate and to the IAA, the applicant's representatives have stated that he will face stigma from his society and be at risk of harm from militias due to being the recipient of abuse and the perception that he is homosexual. In relation to this, I note that the applicant remained in Iraq for some five years after the abuse ceased. He had not mentioned the abuse to anyone and it would appear that the perpetrators did not boast of their crimes. He states that his family are unaware of the abuse. It has now been some 10 years since the abuse ceased. I consider it remote that these events would now become generally known in the community or to the applicant's family or that the applicant would be considered to be homosexual or otherwise stigmatised. (Underlining added.) 8 Later, the Authority said: I have accepted that the applicant was the victim of sexual abuse from 2005 to 2007. I have not accepted that the essential and significant reason for this was his race (Bidoon), religion, nationality, membership of a particular social group or political opinion. I have concluded that it is remote that in the future the existence of this abuse will be generally known or that the applicant will be considered to be homosexual due to being a victim of such abuse. I am not satisfied that he faces a real chance of serious harm due to this. (Underlining added.) 9 The Authority concluded that it was not satisfied that the appellant satisfied the criteria in ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act). Accordingly, on 25 September 2017, it affirmed the delegate's decision.
The judgment of the Federal Circuit Court 10 The appellant applied to the Federal Circuit Court for judicial review of the Authority's decision. The ground relied upon was expressed as follows: 1. The IAA misapplied the test in s5J of the Migration Act 1958 (Cth). Particulars a. The applicant claimed that he would face persecution in Iraq because he had been sexually assault as a child and would be perceived as a homosexual. b. The IAA accepted that the applicant had been sexually assaulted, but found that he would not face harm in the future because the fact of his abuse would not be known... c. It was implicit in the IAA's findings that the applicant would never himself disclose his abuse, whether to authorities, or family, or counsellors, or at all. d. The IAA was required to, but did not, turn its mind to the reason for its implicit finding that the applicant would not disclose the facts of his abuse, and did not consider whether the reason that the applicant would remain silent was because he feared persecution. (Errors in the original, references omitted.) 11 The primary judge dismissed the application on the following basis: 26. I do not accept that the Authority made an assumption in relation to modification of the applicant's behaviour. I do not accept that the applicant, by reason of having remained silent in respect of the past state of affairs, was engaging in conduct that was modifying behaviour. It was the applicant remaining silent in respect of the past state of affairs and not due to a current attribute. I do not accept that the principle identified in S395/2002 has application in the present case as there is no modification of conduct that required the Authority to ask why the applicant remained silent. There was no error in the reasoning of the Authority.
The ground of appeal and the submissions 12 The notice of appeal to this Court relies upon a ground stated in similar terms to the ground in the application to the Federal Circuit Court. In his written submissions, the appellant identifies the issue on appeal as whether the primary judge should have found that the Authority made a jurisdictional error in circumstances where: (1) The appellant had claimed that he would face persecution in Iraq as a victim of child sex abuse. (2) The Authority accepted that the appellant was a victim of child sex abuse in Iraq, but found that it was a remote possibility that the existence of the abuse would become known. (3) In so finding, the Authority made an unstated assumption that the appellant would remain silent about his history of sexual abuse. (4) The Authority did not ask itself the question why the appellant would remain silent, and whether his silence would be the result of a fear of serious harm. 13 The appellant submits that the primary judge erred by failing to follow a consistent line of authority from the High Court to the effect that, in the circumstances similar to those described above, the decision-maker had failed to properly consider whether a person has a well-founded fear of persecution. The appellant cites S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (S395) at [43], [88]; SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [26], [28]; and Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at [17]. 14 The Minister submits that the Authority's finding that the possibility that the appellant's abuse will become known is remote did not involve the errors described in the High Court authorities. He submits that the finding did not divert the Authority from the task of assessing whether the appellant has a well-founded fear of persecution by focussing on an assumption about how the risk of persecution might be avoided. The Minister submits that the Authority did not direct attention to whether the appellant would or could be expected to hide or modify his behaviour or an attribute, which is a manifestation of a Convention characteristic. That is because what the appellant was remaining silent about was events that had happened to him in the past, not any Convention characteristic. That being so, the appellant was not required to address the matters in s 5J(3) of the Act as those matters did not arise.
The statutory provisions 15 It is necessary to consider the Act in its form after the commencement of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the Amending Act). 16 Section 36 of the Act provides, relevantly: (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 because the person is a refugee; or … 17 Section 5H of the Act defines "refugee", relevantly, as follows: 5H Meaning of refugee (1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person: (a) in a case where the person has a nationality - is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or … 18 Section 5J of the Act defines "well-founded fear of persecution", relevantly, as follows: 5J Meaning of well-founded fear of persecution (1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if: (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and (c) the real chance of persecution relates to all areas of a receiving country. Note: For membership of a particular social group, see sections 5K and 5L. (2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. Note: For effective protection measures, see section 5LA. (3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would: (a) conflict with a characteristic that is fundamental to the person's identity or conscience; or (b) conceal an innate or immutable characteristic of the person; or (c) without limiting paragraph (a) or (b), require the person to do any of the following: (i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith; (ii) conceal his or her true race, ethnicity, nationality or country of origin; (iii) alter his or her political beliefs or conceal his or her true political beliefs; (iv) conceal a physical, psychological or intellectual disability; (v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child; (vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status. …
Consideration 19 The Authority did not expressly set out the basis under s 5J(1)(a) upon which the appellant feared persecution. However, it seems to have proceeded upon the basis that he belonged to "a particular social group" consisting of males who have been homosexually abused, or, alternatively, males imputed to be homosexual. 20 The Authority was required to consider, under s 5J(1)(b) of the Act, whether there was a real chance that the appellant would be persecuted in Iraq for his membership of such a social group. The Authority accepted that the appellant had been the victim of sexual abuse as he had claimed. The Authority acknowledged the appellant's claim that he was at risk of harm from his family and the broader community if the fact of that abuse became more widely known. However, the Authority reasoned that the abuse of the appellant had not been, and would not be, revealed by either the perpetrators or the appellant, so that neither the appellant's family nor the broader community would find out about the abuse. As his membership of a relevant social group would not become known, he would not be harmed for that reason if he were returned to Iraq. 21 The appellant submitted before the primary judge and this Court that the Authority erred by failing to ask whether the appellant's silence about his sexual abuse was because of his fear of persecution. The primary judge considered that the appellant, by remaining silent about his sexual abuse, was not "engaging in conduct that was modifying behaviour". His Honour did not accept that "the principle identified in S395/2002 has application in the present case as there is no modification of conduct that required the Authority to ask why the applicant remained silent". 22 It is important to the resolution of this appeal to consider the structure of s 5J of the Act and the stage or stages of the Authority's consideration at which modification of the appellant's behaviour became relevant. The appellant submits that the Authority's finding that the appellant would not reveal his sexual abuse was made in the context of considering s 5J(1)(b). On the other hand, the Minister submits that the finding was made when the Authority was considering s 5J(3). As the Authority did not use the language of s 5J(3) (such as "reasonable steps", "modify" and "immutable characteristic"), the finding is unlikely to have been made in the context of that provision. In my opinion, the finding was made when the Authority was considering whether s 5J(1)(b) was satisfied. The significance of this will become apparent later in these reasons. 23 The Amending Act removed the reference in s 36(2)(a) of the Act to the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (the Refugees Convention), replacing that reference with the words "because the person is a refugee". The Amending Act added ss 5H-5L, which together provide a largely self-contained definition of "refugee" (although some parts of the definition may still be informed by the Refugees Convention). The definition of "refugee" in s 5H requires a person to have a "well-founded fear of persecution". The expression "well-founded fear of persecution" is then defined in s 5J of the Act. 24 Section 5J(1) of the Act sets out three requirements - in paras (a) to (c) - that must be satisfied for a person to have a "well-founded fear of persecution". If a person does not satisfy the requirements of each of paras (a), (b) and (c) of subs (1), the claim must fail at that stage - the person does not have a well-founded fear of persecution, is not a refugee and does not satisfy the criteria in s 36(2)(a) of the Act. It is only if subs (1) is satisfied, that it becomes necessary to consider whether subs (2) and (3) operate such that the person "does not have a well-founded fear of persecution". 25 Section 5J(3) of the Act provides that a person will not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour (other than certain specified kinds of modifications) to avoid a real chance of persecution. There is plainly a relationship between s 5J(1)(b) and s 5J(3). The former refers to "a real chance that…the person would be persecuted", while the latter uses the similar expression "a real chance of persecution". The relationship is that s 5J(3) qualifies s 5J(1)(b). A decision-maker must first consider whether paras (a), (b) and (c) of s 5J(1) are satisfied. If they are, then the person "has a well-founded fear of persecution" and the decision-maker must go on to consider s 5J(3). However, if s 5J(3) if not satisfied, the person "does not have a well-founded fear of persecution". 26 In S395, the Tribunal found (under a form of the legislation in force prior to the Amending Act) that there was no real chance that the applicants would be persecuted for their membership of a social group consisting of homosexual men if they returned to Bangladesh. The Tribunal made that finding on the basis that the applicants 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". A majority of the High Court held that it was an error for the Tribunal to fail to ask why the appellants would live "discreetly" and fail to consider whether they would do so in the hope of avoiding persecution. The majority considered that the relevant issue was what the applicants would do in Bangladesh, not what they could do or should do to avoid harm. 27 Section 5J(3) was added to the Act to overcome the ruling in S395 that what a person could reasonably do to avoid the risk of persecution does not affect whether the person has a well-founded fear of persecution. The Explanatory Memorandum for what became the Amending Act stated: In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (S395), the High Court held that an assessment under the Refugees Convention does not extend to what a person could or should do if they were returned to their country of origin, but what they would do. New subsection 5J(3) is intended to clarify that any assessment of whether a person has a well-founded fear of persecution is to take into account not only what a person would do to avoid a real chance of persecution upon returning to a receiving country, but also what reasonable steps they could objectively take to avoid the persecution. As new subsection 5J(3) imports a consideration of "reasonable steps" and is qualified by new paragraphs 5J(3)(a) and 5J(3)(b), the Government considers that the new subsection 5J(3) is not inconsistent with the principles enunciated by the majority in the High Court's finding in S395. 28 The Authority's finding that the appellant would remain silent about his sexual abuse if returned to Iraq was made in the context of its consideration of s 5J(1)(b) of the Act (which requires that there must be a real chance that, if returned, the person would be persecuted for a relevant reason). The issue that arises is whether the principles identified in S395 remain relevant when considering whether s 5J(1)(b) of the Act is satisfied. 29 The Explanatory Memorandum indicates that s 5J(3) of the Act was intended to modify the principles in S395 to the extent that a person who can avoid a real chance of persecution by taking reasonable steps to modify their behaviour when returned to their country of origin, will not (subject to specified qualifications) have a well-founded fear of persecution. There is no indication in the Explanatory Memorandum of any intention that the principles in S395 should not apply in considering whether s 5J(1)(b) of the Act is satisfied. In my opinion, those principles do apply at that stage of the decision-making process. 30 In this case, the Authority decided that the appellant did not fall within s 5J(1)(b) of the Act because it was not satisfied that there was a real chance that if he were returned to Iraq, he would be persecuted for his membership of a social group consisting of males who had been sexually abused or males who are imputed to be homosexuals. The Authority reached that conclusion by finding that the appellant would remain silent (or, in other words, be discreet) about his sexual abuse as a child. It is necessary to consider whether that conclusion is affected by the reasoning in S395. 31 In S395, McHugh and Kirby JJ held: [35] The reasons of the Tribunal show, however, that it 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. It did not consider whether persons for whom the government of Bangladesh is responsible condone or inculcate a fear of harm in those living openly as homosexuals, although it seems implicit in the Tribunal's findings that they do. Nor did the Tribunal's reasons discuss whether the infliction of harm can constitute persecution where an applicant must act discreetly to avoid that harm. Nor did they discuss whether, if the appellants wished to display, or inadvertently disclosed, their sexuality or relationship to other people, they were at risk of suffering serious harm constituting persecution. If the Tribunal could not have properly exercised its jurisdiction without considering these matters, it has fallen into jurisdictional error and the Federal Court should have set aside the Tribunal's decisions. … [43] 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. (Underlining added.) 32 Justices Gummow and Hayne held: [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. (Footnotes omitted and underlining added.) 33 In Minister for Immigration and Border Protection v SZSCA, Gageler J, referring to S395, said at [36]: The principle for which that case 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. 34 In the present case, the Authority accepted that if the appellant's sexual abuse as a child were exposed, he would be at risk of serious harm in Iraq. It found, however, that the appellant would remain silent about his sexual abuse and, in that way, avoid harm. The Authority made the error of failing to ask whether the appellant would remain silent in order to avoid the risk of persecution. If that question had been asked, and the answer was that he would remain silent because he feared that he would be harmed if he revealed the sexual abuse, s 5J(1)(b) may have been satisfied, depending upon the Authority's findings concerning any "real chance" that the appellant would be "persecuted". 35 If the Authority found that s 5J(1) of the Act was satisfied, the scope and application of s 5J(3) of the Act would then have arisen for consideration. It is sufficient, for present purposes, to say that if s 5J(3) had been considered by the Authority, further issues would have arisen, including whether the provision applies to behaviour that has already been modified, the reasonableness of taking steps to modify the appellant's behaviour and whether any modification would conceal an immutable characteristic or conceal a psychological disability. It is far from certain that if s 5J(3) had been considered by the Authority, the delegate's decision would have been affirmed. In these circumstances, the error made by the Authority was material and amounts to jurisdictional error. 36 The primary judge erred by failing to conclude that the Authority had committed jurisdictional error. His Honour's error lay in his conclusion that "there is no modification of conduct that required the Authority to ask why the applicant remained silent". In S395, McHugh and Kirby JJ at [43] emphasised that the actions of persecutors may have already caused the person affected to modify his or her conduct by hiding the relevant attribute. The primary judge's reasoning erroneously proceeded on the basis that because the appellant had been silent when he lived in Iraq, his silence when he returned to Iraq would not constitute any modification of behaviour. His Honour's error was to fail to recognise that the Authority should have considered, for the purposes of s 5J(1)(b) of the Act, whether the appellant's behaviour in Iraq had already been modified and would remain modified in the future because of a threat to his life. 37 In the course of the hearing, the appellant applied for leave to file an amended notice of appeal. The appellant sought to rely upon a ground that was not argued before the Federal Circuit Court, to the effect that the Authority had failed to consider a claim that had been raised. In view of the conclusion I have reached that the existing ground should succeed, it is unnecessary to consider the application for amendment of the notice of appeal. 38 The appeal will be allowed. The orders of the primary judge will be set aside. There will be an order that a writ of certiorari issue quashing the Authority's decision and that a writ of mandamus issue requiring the Authority to consider the delegate's decision according to law. There will be an order that the first respondent pay the appellant's costs of the proceeding below and the appeal. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.
ESD17
Minister for Immigration and Border Protection