SFGB v Minister for Immigration & Multicultural & Indigenous Affairs

The failure of the RRT to make findings on such critical issues constitute [sic] a reviewable error. [Minister v Khawar [2002] HCA paras 14, 36, 88, 101-2]"

reasoning on application 9 The first question to be considered is whether the Tribunal in fact made any finding in respect of the question whether the applicant had a well-founded fear of persecution at the time he departed from Afghanistan. 10 In her reasons, the member accepts that the applicant feared persecution by the Taliban by reason of his ethnicity and religion and that those fears were consistent with independent information about the Taliban regime, which was known to be merciless to perceived enemies and to have been implicated in widespread human abuses. The member went on to add: "However, I accept the independent information set out above that the Taliban is no longer a force in Afghanistan." 11 It was submitted for the Minister that this was in fact a determination that at the time when he left Afghanistan the applicant had a well-founded fear of persecution but that the position had changed. 12 Although the statement is not clear, I am of the view that on a fair reading of the member's reasons in context, having regard to the whole of the decision, that it was a finding to the effect that at the time of departing Afghanistan, the applicant had a well-founded fear of persecution: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The reference to "consistently with country information" and the qualifying expression "However" supports this conclusion. 13 However, because there is not a clear and specific finding on this point, I will consider the submissions made for the applicant on the basis that there was no specific determination as to whether he had a well-founded fear of persecution at the time of departure. 14 The principal submission advanced for the applicant is that there was an obligation on the Tribunal to make a finding as to whether at the time of departure from Afghanistan, the applicant had a well-founded fear of persecution and that it did not do so. It is submitted that without such a finding it is not possible to properly assess the weight or significance of the subsequent change in circumstances because these must depend on a finding as to the nature and extent of any such change and whether the change is sufficient to destroy or substantially modify the well-founded fear of persecution which existed. Failure to perform this task, it is said, is a constructive failure to exercise jurisdiction, not protected by the privative clause provisions in s 474 of the Act. 15 Support for the above proposition it was submitted, can be found in the decision of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 412-415. 16 The judgment on which the applicant relies is that of Gaudron J, and in particular where her Honour stated, at 415, that: "The definition of 'refugee' looks to the mental and emotional state of the applicant as well as to the objective facts. It is a commonplace, encapsulated in the expression 'once bitten, twice shy,' that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience. Although the definition requires that there be 'well-founded fear' at the time of determination it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well-founded or otherwise without due regard being had to the applicant's own past experiences. If an applicant relies on his past experience it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-found of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality. To require more of an applicant for refugee status, would, I think, be at odds with the humanitarian purpose of the Convention and at odds with generally accepted views as to its application to persons who have suffered persecution. …" (Emphasis added) 17 In terms this language does not necessarily require a two stage determination or approach in assessing the applicant's claims. However, it is submitted that the above paragraph is supported by statements by Mason CJ at 387 and by Dawson J at 399. I do not agree that any such support is to be found in those judgments on a fair reading of the reasons of their Honours. 18 In the subsequent High Court decision in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, Gummow J, at 658, expressed the opinion that the above statement of Gaudron J concerning the acceptance of a continuing fear and the allaying of such fear did not represent the view of the Court in Chan. 19 In Re Minister of Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, Gaudron J, at 254, acknowledged that her views, as quoted above, expressed in Chan did not represent the views of the majority, but she affirmed her adherence to the correctness of her earlier views. 20 The above line of authority was considered by von Doussa J in SCAM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 964 where his Honour said at [26]-[27]: "26. … that the real chance of persecution necessary to meet the objective element of the definition of refugee must be present at the time when the claim for refugee status is determined. I consider it follows that where the threat of persecution that caused an asylum seeker to hold a well-founded fear at the time of departure from the country of nationality has in the meantime evaporated, and the circumstances pertaining in the country have so changed that there is no longer a real chance that the asylum seeker would risk persecution for a Convention reason if he or she were to return, any persisting fear of persecution held by that asylum seeker does not have the objective quality of being well-founded. 27. I am unable to reconcile this interpretation with the view of Gaudron J in Chan and Miah referred to above. I consider that I am bound to follow the majority view expressed in Chan and to decline to follow the view of Gaudron J." (Emphasis added) 21 The question whether it is essential to embark on a two stage process in the determination of an application for refugee status was considered by the Full Court in Minister for Immigration and Multicultural Affairs v Gui [1999] FCA 1496. In that case the Court expressly rejected the suggestion that it was necessary to approach the determination of refugee status in a case where there had been a submission that circumstances had changed since departure, by way of a staged process. At [27] their Honours said, after referring to the observations of Mason CJ, Dawson and Toohey JJ in Chan: "27 The observations of their Honours in Chan do not, in our view, warrant the application of a 'negate or qualify' approach in relation to the 1993 events. To adopt such a formulation is to place a gloss on the words of the Convention, which call for a determination, as at the date of the RRT decision, as to whether a person then satisfies the requirements of refugee status. The primary Judge concluded that, in his opinion, the other findings made by the RRT did not negate or qualify the earlier findings as to the December 1993 incident, and that therefore the law had been incorrectly applied. In our view, the application of this incorrect approach resulted in the primary Judge making an evaluation which was within the sole province of the RRT. The very expression 'negate or qualify" itself indicates that the assessment being undertaken is one of fact and degree." 22 The Court went on to state, at [30] and [35] that: 30. Put another way, we think it was incorrect for the primary Judge to treat the 1993 incident as creating some kind of presumption which, unless negated or qualified, must produce a finding of objectively based fear at the time of the RRT's decision. … 35. The third ground is that, in the event that this Court decides that the primary Judge erred in finding the RRT had made findings of past persecution, the respondent contends that any failure by the RRT to make such findings constituted an error of law. This submission assumes that the RRT is required to proceed by way of a staged process and to make an intermediate finding as to whether Mr Gui was being persecuted for a Convention reason in 1993. There is no such requirement. The RRT must address the question whether the applicant was a refugee as at the date of its decision having regard to all the circumstances placed before it up to that date. There is in our view no error of law disclosed in the decision of the RRT. Moreover, the RRT made findings as to what had occurred in 1993 but clearly considered that because Mr Gui had been able to take part in an active gay community, and had not been arrested or detained on any other occasion since then, he was not at risk of persecution on that ground as at 1998." (Emphasis added) 23 In cases where the language of a statute is clear and unambiguous, the authorities consistently caution against the danger of adding judicial gloss to statutory language and against construing judicial pronouncements as if they were themselves legislative instruments to be interpreted as such: see Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1970) 122 CLR 504 at 513; Attrill v Richmond River Shire Council (1995) 38 NSWLR 545 at 554; Beadle v Director-General of Social Security (1985) 7 ALD 670 at 674; Boscolo v Secretary, Department Social Security (1999) 90 FCR 531; Kertland v Secretary, Department of Family and Community Services [1999] FCA 1596; Hosokawa Micron International Inc v Fortune (1990) 26 FCR 393 at 408 and In the Marriage of Hogue and Haines (Formerly Hogue) (1977) 29 FLR 186 at 189. 24 The applicant's submission comes to this, namely, that in cases where there has been a material change in circumstances since the date of departure of a claimant for refugee status from the relevant country, it is necessary to first determine whether at that time of departure there was a well-founded fear of persecution and then to decide whether circumstances had changed since that date to such an extent as to negate the well-founded fear of persecution. No basis has been shown in the language used in the Convention or the Act for the imposition of such an obligation on the decision-maker. There is no obligation to staged findings and then to consider whether a well-founded fear at any such stage has been displaced by a change in circumstances of an applicant's history. The task imposed by the legislation is to make a finding as at the date of the Tribunal decision. The Tribunal is only required to make a finding at one point in time. If, in fact, a finding is made by the decision-maker that there was a well-founded fear of persecution at the time of departure, then it may be appropriate to embark on a close examination of subsequent history to see whether the change in circumstances is such as to have changed the position at the earlier time to a sufficient extent as to remove the foundations for such fears. The Act, however, imposes no requirement to take such an approach and, in my view, it is erroneous to imply into the legislation such a binding obligation and then to assert that failure to comply with it is a constructive failure to exercise jurisdiction. This requires an elaborate gloss on the language of the Act of a fundamental nature. In my view, the imposition of such a requirement is neither appropriate nor warranted in any way by the language of the Act. Accordingly, I reject the submission that there has been, in this case, a failure to exercise jurisdiction by reason of not making a finding as to the applicant's fear of persecution as at the date of departure. 25 The consequence of requiring staged findings as to persecution at particular times is that in the course of an applicant's history, a multi-tiered process of determination would be necessary. The only obligation of a decision-maker imposed by the Act is to examine all the material up to the date of the decision and to make a single determination at that point in time. If, as a method of carrying out this task, it is considered convenient by a decision-maker to make findings in respect of earlier stages, that may be a legitimate course to adopt to assist in the determination of the question. Nevertheless, whether this approach is appropriate is a question for determination in the circumstances of each case and is not a mandatory task, which if not performed, will invalidate the decision. 26 The observations of their Honours in Gui, referred to above, are contrary to the principal submission for the applicant in the present case because they support the conclusion that there is no basis for holding that there is an obligation to make a finding as at the date of departure as to whether there was a well-founded fear of persecution at that time. It is neither incumbent nor desirable for the Tribunal to address a subset of questions and to make mandatory findings concerning whether fears were well-founded at earlier stages of an applicant's history prior to the Tribunal decision since that is not the function conferred on the Tribunal under the Act. 27 For these reasons, I am of the view that the ground raised by the applicant has not been made out. 28 I also add that it is apparent from a reading of the reasons for decision of the Tribunal that regard was had to the relevant circumstances concerning the applicant and his treatment up to the date of the Tribunal decision. It cannot be suggested that the Tribunal had failed to take this information into account, having regard to the detailed analysis and reasoning and the specific findings of the Tribunal in this matter. Accordingly, even if, contrary to my view, there was no finding made by the Tribunal as to whether the applicant had a well-founded fear at the date of departure, there has been no error of law shown in the present case. There is no need to consider the effect of s 474 of the Act since no error on the part of the Tribunal has been shown to exist. 29 Accordingly, the application should be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.