SRBB v Minister for Immigration & Multicultural & Indigenous Affairs

The Grounds of the Application 11 There were three grounds of alleged jurisdictional errors asserted on behalf of the applicant. 12 First, it was argued that the Tribunal constructively failed to exercise its jurisdiction by failing to ask the right question posed by Art 1A(2) of the Convention. It was submitted that the question for the Tribunal was whether the applicant who is eligible for military service and who has been deported from Australia after seeking asylum might not be suspected of having a political view adverse to the Government of Eritrea. He claimed that, in the circumstances, he might be seen as having attempted to evade military service and so be considered to hold imputed political opinions adverse to the ruling political party in Eritrea. 13 Secondly, it was argued that the Tribunal ignored relevant material. It did not refer to an Amnesty International Press Release dated 10 October 2002 (the press release) which stated that: '… anyone deported to Eritrea who was suspected of opposition to the government or having evaded military service … would be arrested and possibly subjected to torture or ill-treatment.' The argument also referred to the Amnesty International Annual Report 2002 to which the Tribunal made only fleeting reference. It was contended that the Tribunal's failure to refer to that material indicated it had failed properly to exercise its jurisdiction.

14 The third ground was that the Tribunal inappropriately applied an onus of proof other than that which s 36(2) of the Act mandates, evidenced in part by its conclusion that 'there is no persuasive material' to indicate that, if the applicant were to be regarded as a draft evader, he would in the particular circumstances of his case, face punishment other than that mandated by laws of general application.

consideration 15 The applicant contended that the Tribunal should have asked, but did not ask, whether the applicant, who is eligible for military service, once having been deported from Australia, might not be suspected of having a political view adverse to the government of Eritrea. The respondent accepts that a failure by the Tribunal to have addressed that question would have amounted to jurisdictional error on its part. It is obliged, when conducting a review, to address each of the claims which are made by the visa applicant in respect of the protection visa: see e.g. the judgment of Allsop J, with whom Spender J agreed, in Htun v Minister for Immigration & Multicultural Affairs [2003] 194 ALR 244 at 259, [42]. An illustration of a failure of the Tribunal to consider a sur place claim and therefore to have committed jurisdictional error is provided by the decision of French J in W124 v Minister for Immigration & Multicultural Affairs [2001] FCA 1387 at [39] - [40]. 16 However, in my view, the Tribunal did recognise that claim and address it. It did not accept that the applicant's decision not to return home to complete his studies, and his application for a protection visa in Australia, would be regarded as an act of defection or as an anti-regime political statement by the Eritrean authorities. In that context, it specifically addressed the significance of the compulsory national service obligation on all persons aged 18-40. It was not satisfied that the applicant would be regarded as a draft dodger as a consequence of having overstayed in Australia. It said: 'The Tribunal accepts that the applicant would be required to undertake military service. It is not satisfied that he would be regarded as a draft dodger as a consequence of having overstayed in Australia when other possibilities are available, such as seeking a better economic situation. As well, there is no persuasive material to indicate that if the applicant were to be regarded as a draft evader he would, in the particular circumstances of his case, face punishment other than that mandated by laws of general application. Moreover, there is no material to satisfy the Tribunal that the motivation for any punishment of him would be essentially 'by reason of' any Convention ground.' 17 To address the second contention, it is convenient to set out the press release dated 10 October 2002 in a little detail. It included: 'Conscription is continuing in Eritrea even since the Ethiopian war ended in 2000, and all Eritrean men and women aged 18 to 40 are liable to military service, with no recognition of the right to conscientious objection. Hundreds of people are reported to have fled Eritrea in recent months to avoid or escape from military service. Those caught are reportedly arrested; tortured by beatings and being tied up for hours with their arms tied tightly behind their backs, restricting the flood flow and sometimes leading to paralysis or permanent injury. They are detained without any judicial process for months with hard labour; then sent back to the army. Under national service regulations, the punishment for evading conscription is up to three years imprisonment … Amnesty International said that in the current human rights crisis in Eritrea, anyone deported to Eritrea who was suspected of opposition to the government or having evaded military service or deserted from the army would be arrested and possibly subjected to torture or ill-treatment. They could be detained for an indefinite period without charge or trial, without any protection against unlawful detention.' That press release was provided to the Tribunal by the applicant on 8 April 2003 prior to its decision. It is not, however, referred to in its reasons. Nor is it referred to in the 'citation list' apparently prepared by the Tribunal identifying the material to which it has had reference and apparently attached to its reasons for decision. 18 Curiously, the first two documents in that citation list are documents attached to the lengthy submission of the applicant to the Tribunal dated 8 April 2003. That submission also included detailed reference to the press release referred to. It is apparent that the Tribunal has therefore had some regard to the applicant's submission and at least found useful certain of the material enclosed with it. 19 The present issue is whether the Tribunal's failure to mention the Amnesty International Annual Report 2002 or the press release in its reasons demonstrates jurisdictional error on its part.

20 I do not think that its failure to do so demonstrates that it failed to have regard to relevant material in the sense in which it is discussed in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24. In Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [73]-[74], McHugh, Gummow and Hayne JJ said: 'The considerations that are, or are not, relevant to the tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the tribunal is called on to consider … What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.' 21 Relevant in that context does not mean a piece of evidence which the Court regards as probative and which has not been weighed or discussed. It applies where the decision-maker is bound by the statute to have addressed a particular consideration. In this matter the Amnesty report and the press release, as pointed out in submissions, contain information which might have been regarded as strongly probative of a particular conclusion. But the Tribunal was obliged to, and did, address the claim to which that material relates and it did give its reasons for its conclusion on the claim. In particular, it found that, in relation to the particular circumstances of the applicant, notwithstanding his application for a protection visa whilst in Australia, he is not a person who would be suspected of opposition to the Eritrea government or of having evaded military service by reason of his delayed return to Eritrea or by reason of his application for a protection visa. Having reached that view, the factual foundation upon which the press release was expressed was not directly relevant. That is because it refers to persons deported to Eritrea who are suspected of opposition to the government or of having evaded military service. It does not say that persons deported to Eritrea will necessarily be suspected of opposition to the government or of having evaded military service. The Tribunal found, in the applicant's particular circumstances, that he would not be so suspected by the government. It is not the role of the Court to review the merits of its factual findings. In that context, it is not surprising that the Tribunal did not need to refer to a piece of evidence which in another context might well have been seen to have been very significant, so that lack of reference to it might have supported the argument that the Tribunal had failed to address his claim. I do not think that arises in the present matter. 22 There remains for consideration the claim that the Tribunal misapplied the 'real chance' test. That is a matter to be determined in relation to the way the Tribunal has expressed its findings. There is no issue as to the relevant principles. 23 It is clear that the Tribunal's reasons are to be construed beneficially and not with an eye keenly attuned to the perception of error: see Minister for Immigration & Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 272 and per Kirby J at 290-293. 24 To determine whether the Tribunal in fact failed to apply the law as it was required to do, it is necessary to resort to the Act and, to the extent to which it directs attention, to the Refugees Convention as amended by the Refugees Protocol (the Convention). The relevant criterion is that specified in s 36(2) of the Act, namely that the respondent, and on review the Tribunal, be satisfied that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention. In practical terms, that means that the respondent, and on review the Tribunal, needed to be satisfied that the applicant is a refugee as defined in Art 1A(2) of the Convention, namely a person who: 'Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.' 25 The High Court has considered what is meant by the definition of refugee in a number of cases spanning Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 to Minister for Immigration & Multicultural Affairs v Khawar (2002) 187 ALR 574 and more recently Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389;[2003] HCA 26. In Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, the Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) discussed the elements of the Convention definition of 'refugee', in particular the meaning of a well-founded fear of persecution for a Convention reason, at 571-573. Their Honours pointed out at 572 that it is dangerous to treat a particular word or phrase as synonymous with a statutory term. Their Honours continued:

'A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term "real chance" not as an epexegetic of "well-founded", but as a replacement or substitution for it. Those Tribunals would be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.' 26 In that case the Full Court concluded that the Tribunal had not applied a balance of probabilities test. That is, in substance, the assertion made on behalf of the applicant in this matter. It requires consideration of the Tribunal's reasons. 27 There are expressions in the Tribunal's reasons for decision, particularly concerning the active reason for persecution which the applicant maintains on this application, to indicate that it did apply such a test. In the passage from its reasons for decision referred to in [9] above, it identifies the claim as being that the applicant 'will be' regarded as having committed an act of defection and anti-political statement by his seeking protection in Australia. It noted the applicant's particular skills. It said that there is 'no conclusive evidence' to suggest that people who overstay their visas face a real threat of persecution for having overstayed. It found that it did not accept that his decision not to return home after the completion of his studies and to apply for a protection visa 'will be regarded as an act of defection and anti-regime political statement'. Preceding that, as can be seen in that passage, it considered whether, given his lack of political profile, his application for a protection visa 'will give rise' to a real chance of persecution. In relation to the material relating to military service, it was of the view that there is 'no persuasive material' to indicate he would be regarded as a draft evader. 28 The commencement of the Tribunal's reasons includes a discussion of what is meant by a well-founded fear of persecution. The discussion at that part of its reasons indicates that the Tribunal was aware that a real chance of persecution is one that is not remote or insubstantial or far fetched. That is, that a well-founded fear of persecution can exist even though the possibility of persecution occurring is well below 50%. Moreover, after its substantive reasons, the Tribunal reverted to a general description of the applicant's claims and its findings about them. Relevantly, it noted that the applicant is a government sponsored student and one who was well regarded in Eritrea, with no anti-government political profile in either Eritrea or Australia. It continued: 'Nor is he likely to be of adverse interest to his government for having overstayed his visa or for having applied for Australia's protection.' It was on that basis it concluded that the applicant does not face a real chance of persecution by Eritrean authorities for the reasons he has given. 29 As can be seen, at the commencement of its reasons and its concluding remarks, the Tribunal has correctly identified and apparently correctly applied the test whether the applicant has a well founded fear of persecution for a Convention reason. But in that part of its reasons for decision where it explains in detail why it rejects the applicant's claim, it has used language which indicates it has not asked itself the question dictated by s 36(2) of the Act and posed by Art 1A(2) of the Convention on terms which reflect the exposition by the High Court to which I have referred. 30 I incline to the view that greater emphasis should be placed upon the substantive part of the Tribunal's reasoning, than upon its introductory reasoning (which is a common feature of many Tribunal decisions) or its concluding views or its summary of its conclusions. The substantive reasoning processes are likely to be more indicative of the Tribunal's actual reasoning processes. It is important also to have regard to the whole of the relevant reasoning processes. Selection of one or a few infelicitous expressions to demonstrate legal error would be unfair to the Tribunal, and would fall into the error which the High Court explained in Wu Shan Liang. 31 The relevant passage in the Tribunal's reasons does not consistently demonstrate that it was seeking conclusive proof of the applicant's claims, or that it required to be satisfied on the balance of probabilities that, objectively, his claim to persecution by reason of his delay in returning to Eritrea and by reason of having applied for a protection visa in Australia was made out. It noted his particular skills are valuable to Eritrea. It then referred to the absence 'of conclusive evidence' that overstaying a visa leads to a real threat of persecution. That observation may be an oblique reference to the press release. As noted above, it does not say that all persons who overstay visas are suspected of holding anti-government views. It says that persons who overstay visas and are suspected of anti-government views or draft evasion may be vulnerable to persecution. There was no evidence otherwise identified that indicated that the fact of overstaying a visa, or the fact of an unsuccessful asylum application, of themselves would lead to the risk of persecution upon return. The Tribunal then noted that the applicant himself had not published the fact that he had applied for a protection visa, so as to lead to the Eritrean authorities thinking he may harbour anti-government views. The Tribunal's finding that it is 'extremely unlikely' that the Eritrean government might be aware of his application for a protection visa is consistent with a proper consideration of the real chance test. 32 However, the succeeding section of its reasons more strongly suggests the Tribunal misapplied the law. It did not accept that the overstaying of the visa or the lodgment of the protection visa application 'will be regarded' as showing an anti-regime attitude. After making findings about the legal obligations to undertake conscription in Eritrea, and that the applicant would fall within those obligations, it said it was not satisfied that the applicant 'would be regarded as a draft dodger as a consequence of having overstayed in Australia when other possibilities are available …'. Those two passages in the Tribunal's reasons are hard to reconcile with the proper application of the 'real chance' test. The reference to there being other possibilities fortifies the view that the Tribunal was not, at that point, applying the proper legal test but was applying a balance of probabilities measure to the applicant's claims. Whilst I consider references to the absence of 'persuasive material' or 'conclusive evidence' may be read consistently with the Tribunal applying the proper legal test, I have come to the conclusion that its reasons in addressing this aspect of the applicant's claims, show that it did not do so. My view is reinforced by its brief recapitulation of its conclusions about each of the claims at the end of its reasons. In relation to the subject claim, it again expressed itself in terms not consistent with the High Court's views, but in terms of likelihood: see the brief passage from its reasons in [28] above. 33 I have therefore come to the view that the Tribunal, in considering the particular claim of the applicant under discussion, erred in law. It did not address the question which s 36(2) required and as expressed in Art 1A(2) of the Convention. Such a failure, in my judgment, amounts to jurisdictional error, notwithstanding s 474 of the Act.

34 Accordingly, I order that the decision of the Tribunal of 27 May 2003 be set aside. I direct the Tribunal to hear and determine the application for review of the delegate's decision of 3 March 2000 according to law. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 28 November 2003 Counsel for the Applicant: Mr A Tokley with Mr D Crocker

Solicitor for the Applicant: Refugee Advocacy Service of South Australia