reviewable error - s 476(1)(e)
34 The applicant contended that the Tribunal incorrectly interpreted the test for a refugee sur place. As the applicant noted, the Tribunal accepted that "the political activities in which he has been involved in Australia may be known to local Kenyan representatives and may have been reported to the government in Kenya". The applicant submitted that in rejecting his sur place claim, the Tribunal failed to address a key issue, namely, how his political activities in Australia were likely to be viewed and responded to by authorities in Kenya. Instead of addressing this issue, the Tribunal, so the applicant said, focussed its attention on his lack of direct involvement in fact with the dissident group. The applicant further contended, in written submissions, that:
The Tribunal was in error in elevating the requirement for a successful sur place [sic] in that it appears to have required that the applicant have at least the following whilst in Australia:
· A continuing public involvement with [the newsletter, the international human rights organisation and the dissident group]
· A thorough knowledge of current day Kenyan political developments
· A high profile, such as being an office holder in an African or human rights organisation
· A demonstrable commitment to and knowledge of Kenyan politics so that it can been inferred he will take on a leadership role in Kenya (i.e. adopt a high profile on his return and be outspoken)
Again, the Tribunal was diverted from its task by failing to grapple with one of the 'key issues', namely the likely reaction of the Kenyan government to the perceived activities of the applicant in Australia. It focussed its attention on the position of those already in Kenya.
35 This complaint is not made out. As already noted, the Tribunal expressly recognised the sur place nature of the applicant's claim. With this in mind, the Tribunal set out the applicable law referring, amongst other things, to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. On a fair reading of the Tribunal's reasons, the Tribunal assessed the applicant's claim to be a refugee sur place against the applicable law, including the need for the Minister's satisfaction that he was a refugee as defined in Article 1A(2) of the Convention. If there were any doubt about the matter, it is removed by the Tribunal's stated satisfaction that membership of the dissident group would not be attributed to him in consequence of the matters to which the applicant had referred, especially his activities in Australia.
36 I do not accept the applicant's contention that the Tribunal elevated any of the matters mentioned in his written submissions or, indeed, at the hearing into a requirement for a sur place refugee claim. It was open to the Tribunal to consider such matters, including his contemporary knowledge of Kenyan politics and the nature of his public involvement in Australia in political or civil rights associations, in determining whether he would be at risk of serious harm were he to return to Kenya by reason of the Kenyan authorities' perception of and reaction to him. The Tribunal's reasons for decision reflect this process. They do not show that the Tribunal misinterpreted or misapplied the law according to which a sur place claim is to be assessed.
failure to follow procedures - s 476(1)(a) and s 430 revisited
37 On the hearing of this matter, the applicant was given leave to amend his application to permit him to contend that the Tribunal failed to set out its findings in relation to his claim "that he faced persecution on account of having sought asylum outside of Kenya". Relying on s 476(1)(a) of the Act, the applicant contended that this omission was a breach of the Tribunal's duty to set out findings on material questions of fact as required by s 430(1)(c) of the Act. Relying on s 476(1)(e), the applicant also contended that the Tribunal failed to exercise its jurisdiction properly by failing "to address the totality of the claims advanced".
38 The applicant submitted that the issue of a well-founded fear of persecution based upon his status as an asylum-seeker in Australia was raised in the written material and at the hearing before the Tribunal. The respondent disputed this. The applicant submitted that the point arose in the references, contained in his written submissions, to the detention of two Kenyan dissidents who had obtained refugee status in other countries. There was, however, no suggestion in these submissions that there was any causal link between dissidents seeking asylum and their later detention on returning to Kenya. On the contrary, the detentions were referred to by the applicant in his submissions in support of a much broader contention that "the Kenyan government has a particularly antagonistic attitude towards those who undermine it from abroad".
39 There were two more instances which, according to the applicant, raised the point. They were contained in reports about Kenyan dissidents. One, an international human rights organisation's report, concerned a Kenyan businessman affiliated with a dissident, illegal, political group known as the February Eighteenth Movement. The other, a much more general report, related to members of the dissident group who had obtained refugee status and had subsequently returned to Kenya. The Tribunal presumably read this material (as do I) as indicative of the fact that the relevant individuals were subject to adverse treatment in Kenya upon their return on account of their political activities in Kenyan politics, not on account of any application for asylum in another country. The applicant made no attempt to tie the situation of the political activists considered in these reports to his own situation.
40 I reject the submission that the Tribunal ought to have understood from this material that there was a separate asylum-seeking ground being raised by the applicant. In his initiating application for a protection visa, the applicant said nothing of this alleged ground. His claim for refugee sur place status turned entirely on his activities in Melbourne, including an alleged association with members of the dissident group in Melbourne. A mere reference to political activists who happened to have obtained refugee status in other countries and were subject to injurious treatment on their subsequent return to Kenya does not support the applicant's submission that his asylum-seeking was raised as a separate ground.
41 The applicant alleged, however, that he had specifically raised the asylum-seeking ground at the hearing before the Tribunal. The evidence for this is in notes written by the applicant's then legal representative, Mr Paul Fisher. In an affidavit sworn in this proceeding, Mr Fisher deposed that he attended the hearing before the Tribunal on 9 September 1998 and took notes in the course of the hearing. He deposed that he had subsequently listened to the audio-cassette tapes of the hearing made for the Tribunal, read the transcript produced from these tapes, and compared the transcript with the notes made by him. From this, he concluded:
[T]here is a significant period of the hearing that was not recorded on the tape, and accordingly, was not reproduced in the transcript of proceedings. The gap in the transcript occurs between the end of page 23 (where the words 'So what happened was …" appear) and the beginning of page 24 (where the words "TAPE CHANGEOVER" appear).
My notes indicate that during this gap in the transcript a number of questions were asked of the applicant and his responses relating to critical matters were not recorded on the tape. In particular, the applicant stated that he feared persecution based on the fact that other Kenyans who had sought asylum outside Kenya and were returned to Kenya were arrested and detained as a result of having sought refugee status. Having perused my notes I recall that during the hearing the member asked the applicant whether his application for refugee status itself placed him at risk of persecution should he be forced to return to Kenya. The member asked the applicant how anybody would know whether he had applied for refugee status and there was a discussion of the risk to refugee applicants who returned to Kenya. …
Having perused my notes, I recall that the applicant was also asked: what provoked him to make a refugee application; about whether there had been a change to the laws in Kenya; whether his [relative] … had travelled outside Kenya and returned in the past year; what harm the applicant actually feared if he returned to Kenya; and whether he held a subjective fear of persecution. The applicant was also questioned about his involvement with [the newsletter]. The editor of [the newsletter's] activities and movements were discussed as well as the applicant's level of interest in [the newsletter].
If one examines the transcript at pages 23 and 24 it is clear that page 24 indicates a recommencement of the hearing after a tape changeover. However, the topic under discussion at the beginning of page 24, when the [Tribunal] states 'You were telling me about [the newsletter]?', is a different topic to that discussed at the end of page 23.
Accordingly, it is my firm belief that the hearing was not fully taped and therefore not fully transcribed.
42 I accept that the transcript of the hearing does not record all that transpired at the hearing. The transcript is discontinuous at least at one point, namely, between pages 23 and 24. The respondent did not contend to the contrary.
43 The only evidence of what transpired during this unrecorded part of the hearing is what is contained in Mr Fisher's notes. I accept that the following portion of Mr Fisher's notes is a partial record of what took place in that unrecorded period.
What do you think will happen if you go back?
Many [Tribespeople] killed. People has applied for Ref. in other countries and went back home, arrested and detained. Government seem to have a vow that you need loyalty to president and country.
Application for refugee status itself a risk?
Grant of refugee status here and return still [illegible]
Because. How.
How would anyone know you've applied for refugee status?
Bridging visa? Look through passport. Here three years. Kenyan government.
Discussion of risk to refugee applicants who return.
What do you actually fear?
Involvement here in [the newsletter/the international human rights organisation] could lead to interest of authorities.
44 Mr Fisher's evidence in cross-examination was that he could not recall anything more than that which he had set out in his affidavit or appeared in his notes. He also said that his notes were not necessarily complete because he was not always able to record entirely what was said, particularly when he was a participant in the discussion with the Tribunal (which may have been the case here). I accept Mr Fisher's evidence. As already noted, Mr Fisher's evidence was that the Tribunal itself asked the applicant whether he considered that the making of an application for refugee status was "itself a risk". Mr Fisher's notes establish that the Tribunal, the applicant and, perhaps, Mr Fisher went on to discuss the subject further.
45 Notwithstanding that there is very limited evidence as to the content of the discussion, I accept that the question was raised as to whether the applicant's application for a protection visa gave rise to a well-founded fear of persecution. Mr Fisher's notes indicate that the applicant probably expressed the view that his application could place him at risk if he were to return to Kenya and that his status as an applicant for asylum could be inferred from an inspection of his passport and from the length of his stay in Australia. This evidence does not show, however, the depth to which the Tribunal explored the issue. For example, Mr Fisher's notes may indicate some confusion in the applicant's mind between a successful applicant for asylum who later returns to Kenya and an applicant who returns to Kenya after an asylum application has failed. (As already noted, evidence of the detention of the former, perhaps because of his or her political activities, is not necessarily evidence that the latter would be exposed to risk if he or she were returned.)
46 As already noted, the requirement in s 430(1)(c) is to set out findings on "material questions of fact". The Tribunal asked questions about the effect of an application for refugee status and the applicant answered by claiming a further ground for his "well-founded fear of persecution". The applicant submitted that once the applicant claimed the asylum-seeking ground and gave evidence on it, the Tribunal was required to make findings on the material questions of fact relevant to it. There was, as the respondent conceded, no reference to the ground in the Tribunal's reasons.
47 In these circumstances, were there questions of fact arising from the applicant's claim (as expanded at the hearing) that were material in the sense explained in Singh and that were not set out by the Tribunal as required by s 430(1)(c)? The Tribunal ultimately determined that the applicant did not have "a well-founded fear of persecution on account of his real or imputed political opinions" or for any Convention reason. It followed that it must have rejected the applicant's claim that he had such a fear as a consequence of making his application for a protection visa in Australia. There would appear to have been no question of law upon which the Tribunal could have rejected this aspect of the applicant's claim (and none was suggested). The Tribunal's rejection must, therefore, have turned upon findings of fact adverse to the applicant. These findings were material in the sense that they governed the outcome of the Tribunal's decision on this ground and ultimately since all grounds had to be determined against the applicant if he were to fail: cf Singh at 481-2. For example, the Tribunal might have found that the Kenyan authorities attributed treacherous political opinions to any Kenyan who returned to Kenya after making an unsuccessful asylum application elsewhere; that these authorities would attribute the applicant's prolonged stay in Australia to his making an application of this kind; and that they would, on account of a political opinion attributed to him, take steps to do him serious harm on his return. Of course, the Tribunal did not make any such findings. It made no findings at all on the material questions of fact relevant to the asylum-seeking ground. This is the gist of the applicant's complaint.
48 The respondent addressed this submission in two ways. First, he submitted that the Tribunal was under no obligation to produce a transcript or recording of the hearing. This was, as the respondent ultimately conceded, beside the point. In this case, the reviewable error, if any, was not the failure to keep a continuous transcript or recording but the failure to make findings on "material questions of fact".
49 Secondly, the respondent submitted that the applicant had failed to adduce sufficient evidence to make out the key elements of this ground. In particular, the respondent said that there was (a) "[no] material tending to demonstrate that the mere making of an asylum claim was the basis for the risk of persecution" and (b) "no material supporting a finding that the authorities might know of the applicant's protection visa application". (The respondent referred to Schedule 2 of the Regulations, Subclass 051 (Bridging (Protection Visa Applicant)), items 051.711 and 051.712, in support of the proposition that the Regulations did not require the applicant's passport to contain evidence that he was or had been an applicant for a protection visa.) As a consequence, so the respondent submitted, the question whether the applicant had a well-founded fear of persecution on returning to Kenya by virtue of his status as an unsuccessful asylum-seeker never "rose to the level of a material or central question requiring determination". I also reject this submission.
50 As stated earlier, on the basis of Mr Fisher's notes and his evidence about them, I accept that the applicant gave evidence to the Tribunal on both matters mentioned by the respondent. I therefore reject the respondent's submission that there was no material to support a finding in the applicant's favour. As noted already, precisely what the applicant said in evidence does not appear because there was a failure to record his evidence and Mr Fisher's notes are only a partial account. The applicant's evidence may have been deficient in significant respects and the Tribunal may have rejected the asylum-seeking ground for this reason. One cannot say what was in the Tribunal's deliberations in the absence of any finding on any material question of fact. Since the applicant gave evidence on these matters, I do not accept the respondent's submission that there was no material concerning the asylum-seeking ground and, for that reason, the Tribunal was not called on to make any factual findings in conformity with s 430(1)(c). The applicant's evidence at the hearing was sufficient to give rise to such an obligation.
51 It is of little account that it was the Tribunal that first raised the asylum-seeking issue. This relieved the applicant of the need to do so. Once the ground was raised distinctly, and the applicant gave evidence that his application gave rise to a well-founded fear of persecution if he were to return to Kenya, then the Tribunal was bound to set out its finding on the questions of fact upon which that ground depended. If the Tribunal found (as the respondent submitted) that there was no material to support the applicant's belief that the Kenyan authorities would (or could) learn of his protection visa application, then the Tribunal ought to have said so.