SZTFI v Minister for Immigration and Border Protection

2.1 The application for a protection visa and the delegate's decision 6 The appellants are citizens of their country of nationality. They arrived in Australia in late 2011 on sponsored visitor visas and applied for protection visas on 7 December 2011. The protection visa application was principally based on the appellant's claims to fear persecution from government authorities arising from an actual or imputed political opinion against the current regime of the country of nationality. 7 The delegate refused the applications for protection visas on 29 August 2012.

2.2.1 The appellant's claims before the Tribunal 8 The appellants applied to the Tribunal for review of the delegate's decision on 28 September 2012. The appellant was interviewed by the Tribunal on 3 May 2013 with the assistance of an interpreter. His claims can be summarised as follows. 1. He joined SA1 in [X year] and remained a member until he retired in [X year]. 2. All telephone calls, contacts and movements of members of SA1 were monitored by intelligence services within SA1 who tried to purify SA1 internally from all opposition. 3. On retirement, he felt compelled to join SA2, a government militia for retired SA1 members. 4. After he joined SA2, he was required to train for anti-demonstration activities. 5. To avoid participating in those activities, he resigned from SA2 and re-joined SA1. He had no choice when he re-joined SA1 but to agree to a contract of service for a minimum of four years. 6. He attended a meeting with other members of SA1 in which a public official spoke. As a result of an incident at the meeting, a friend was arrested. Later, the appellant was questioned by intelligence services of the country of nationality, at the end of which he felt compelled to sign a declaration of loyalty and to agree to keep secret the arrest of his friend. 7. Sometime later, he decided to visit relatives in Australia. As a member of SA1, he was not permitted to travel in and out of his country of nationality for a certain period of time but, after discovering that his name was not on a travel ban list, he left on a return airfare to Australia for one month. 8. He feared being "persecuted for having political opinion against the [country of nationality's] current regime and my Ideologies and political views that have been revealed to the authorities of my country". 9. He also claimed fear of significant harm in the country of nationality because he "believed he would be charged with being a spy on [his] return". 10. He further claimed that shortly after leaving his country of nationality, his departure was detected by SA1 and a number of events occurred leading him to believe that he would be persecuted if he returned. These events included a raid on his home as a consequence of which his diary, in which he claimed to write every day, together with other anti-regime materials, were found. He also claimed that summonses were issued for his wife and son to appear in court. 9 On 1 August 2013 the Tribunal affirmed the delegate's decision to refuse the grant of the protection visas.

2.2.2 The issues identified by the Tribunal 10 The Tribunal was satisfied that the appellant claimed to fear persecution (arrest, imprisonment or a death sentence) for a reason under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (the Convention), namely, his concern that a political opinion may be imputed to him against the current regime in his country of nationality. 11 In common with the delegate, the Tribunal also accepted that the appellant was a national of his claimed country of nationality and had been a member of SA1 in which he had held a specific and senior rank. It also accepted that he had left his country of nationality for Australia on the date alleged through an international airport on a civilian passport of 5 years' validity. 12 On this basis, the Tribunal identified the issues in the case as follows: A) Whether the male applicant has a well-founded fear of being persecuted in [his country of nationality] for a Convention reason, and specifically his credibility with regard to the claim that he has been imputed with a dissident political opinion, B) Whether as a "failed asylum seeker" he might face Convention-related persecution on return, C) Whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to [his country of nationality], there is a real risk that he will suffer significant harm. 13 While the Tribunal refers only to the appellant's claim that he has been "imputed" with a dissident political opinion, I do not understand the Tribunal to have overlooked the claim by the appellant in fact to hold a dissident political opinion. Fairly read, I understand the Tribunal to be referring to the fact that the appellant claimed that the authorities in his country of nationality have, or may have, imputed such an opinion to him by reason of certain events, rather than that he had in the past openly expressed his anti-regime opinions, which was not part of his claim. In this regard, as has oft been said, "[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error": Collector Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280 at 287 (the Court) (approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (Wu Shan Liang) at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ)). Nonetheless, for reasons later apparent, the focus by the Tribunal upon imputed political opinion has some relevance: see at [82].

2.2.3 The Tribunal's consideration of the political opinion claim 14 As to the first issue, the Tribunal accepted evidence that the appellant left his country of nationality during a period in which some former members of SA1 had openly shown their dissatisfaction with the incumbent regime. It also accepted that certain high ranking officers had faced a severe reaction from government officials for expressing their views, four of whom were said to have died under "suspicious" circumstances. 15 The Tribunal also understood (as the primary judge summarised at [6]) that the appellant: a) said that he knew it was dangerous that he had left his country of nationality "but he had not thought that [SA1] would find out"; b) "now claims that there have been very serious consequences for him as a result of his decision to leave [his country of nationality] in [X]"; and c) "is claiming to have been a serving senior officer in [SA1] who chose to make this trip without [SA1] knowledge or authority, in mid-contract, using a passport to which he was not entitled, and that he left [the country of nationality] expecting to return to complete his contract with [SA1]". 16 However, the Tribunal: a) could not find with confidence that the appellant had not resumed his employment with SA1 after his earlier resignation, and therefore considered his claims on the expressed assumption that he had resumed that employment; b) did not, however, "necessarily accept" that he remained in his employment with SA1 as he claimed and did not accept that it had the consequences claimed; c) was satisfied that there was no restriction on the appellant's departure from his country of nationality when he left for Australia given perceived inconsistencies in his evidence and its assessment of the plausibility of his claims; and d) while unable to establish with confidence what his employment relationship was with SA1 when he left, was "not satisfied that when he left [his country of nationality] … he considered there was any risk to him in doing so, and [was] not satisfied that there was any such risk." (emphasis added) 17 Nor did the Tribunal accept that the appellant's home had been searched after his departure and dissident materials found, given perceived inconsistencies and illogicalities in the evidence about these matters and its finding that the summonses for his wife and son were not what they purported to be. 18 The Tribunal concluded that it did not believe that the appellant had a genuine fear founded upon a real chance of being persecuted by reason of his political opinion. It considered that if the appellant returned to his country of nationality, he would do so "as a person who has a record of long-standing loyalty to the regime", and did not accept that any material had been located at his home which might change this perception of him. The Tribunal also rejected the appellant's "late claim" that he was no longer a Shia Moslem, which if true may also have lead to his being imputed with a political opinion.

2.2.4 The Tribunal's consideration of the failed asylum seeker claim 19 The Tribunal also considered the appellant's claim that he might be harmed if returned as a "failed asylum seeker" which he confirmed meant he would be harmed for his political views. When asked by the Tribunal why the authorities might perceive him as such, the appellant claimed that SA1 would think "it was all pre-planned that he came [to Australia] and that he came to give information to the Australian authorities. He was probably regarded as a spy in his workplace". 20 The Tribunal accepted as reliable, evidence confirming that individuals known to have applied for asylum risked arrest on return, and faced increased risks of interrogation and threats of severe punishment if perceived to have publicly expressed anti-government views abroad. However, the Tribunal did not consider that a person with the appellant's background would be thought to have sought asylum given the length of his employment with SA1, that he had never openly expressed any views critical of the state, and his written confirmation of his loyalty some years earlier which was "plainly accepted". As such, the Tribunal was not satisfied that the appellant might be regarded as a 'failed asylum seeker' if he returned and found that there was no real chance he would be seriously harmed as such.

2.2.5 The complementary protection claim 21 Finally, the Tribunal considered whether the appellant met the alternative criteria for a protection visa under s 36(2)(aa) of the Act on the ground that it is satisfied that he is a person to whom Australia owes complementary protection obligations. The Tribunal found that "the applicant's fear of harm in [the country of nationality] relates solely to his concern that a political opinion might be imputed to him". It followed that it was not satisfied for the reasons given in relation to the Convention claims that there were substantial grounds for believing that there is a real risk he will suffer significant harm, as a necessary and foreseeable consequence of his being returned to his country of nationality. 22 Accordingly, the Tribunal affirmed the decision not to grant the appellants protection visas.

2.3 The decision of the Federal Circuit Court 23 The grounds pleaded in the amended application for review in the Court below were that: 1. The respondent Tribunal committed a jurisdictional error in that it failed to consider one of the first applicant's claims. 2. In considering the first applicant's claim for complementary protection, the Tribunal made a jurisdictional error in that it made an error of law, or alternatively failed to consider the first applicant's claim. 3. The respondent Tribunal committed a jurisdictional error in that it failed properly to consider the issue whether the applicant had a well founded fear of persecution. 24 The primary judge rejected each of these grounds and dismissed the appeal. It is convenient to consider his Honour's reasons for so doing in the context of considering the grounds of appeal.

1.1 Ground 1: Did the Tribunal properly apply the 'real chance' test?

1.1.1 Relevant principles 25 In conducting its review, the Tribunal is required to consider whether the applicant is "… a non-citizen in Australia in respect of whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol" (ss 36(2)(a) and 415 of the Act). This requires, subject to various qualifications in the Act, that the Tribunal be satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention, namely, a person who (relevantly): owing to a 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… (emphasis added) 26 If so satisfied, the Tribunal must grant the visa under s 65 of the Act. 27 The question raised by ground 1 of the appeal is whether the Tribunal was required, but failed, to assess whether there was a "well-founded fear" (or real chance) of persecution by reason of imputed political opinion on certain assumptions set out at [35] below. 28 No issue was taken by the parties as to the principles by which the Tribunal must assess whether there is a well-founded fear as set out by the primary judge at [18]-[26] of his reasons. Those principles are well settled and may be summarised as follows. 29 First, a determination of whether a (subjective) fear is (objectively) "well-founded" requires the Tribunal to assess what will occur in the future. A fear is "well-founded" when there is "a real substantial basis for it", even though the chance of the fear eventuating is less than 50 per cent: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). Conversely, a fear of persecution is not well-founded "if it is merely assumed or if it is mere speculation.": ibid. In this regard, the joint judgment in Guo held that, when properly understood as a clarification of the phrase 'well-founded', application of the so-called "real chance" test will generally lead to the same result as a direct application of that phrase. Nonetheless, their Honours cautioned that it should not be used as a replacement or in substitution for the terms of the Convention (ibid). 30 Secondly, in forming an opinion as to whether there is a real chance of persecution for a Convention reason, the Tribunal may be required to make findings about past events. As the joint judgment held in Guo at 574, "[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their occurrence." Thus, in the context of applying the definition of a refugee in the Convention, the joint judgment held at 575: Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. 31 Thirdly, as Brennan CJ, Toohey, McHugh and Gummow JJ held in Wu Shan Liang at 281, "[t]he chance of persecution is not a fact to be inferred solely from facts that are found to have existed; the very uncertainty of what has happened in other cases is itself material to the assessment of the chance of persecution in the instant case" (emphasis added). As their Honours further explained: As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future: the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event. 32 Fourthly, this does not mean that the Tribunal is required to take into account the probability of error in its findings in every case. Thus in Guo at 576, the joint judgment contrasted a scenario where the Tribunal finds that it is only slightly more probable than not that an applicant has not been persecuted in the past for a Convention Reason in determining whether there is a well-founded fear of future persecution, with a scenario where the Tribunal had no real doubt that its findings as to the past and the future were correct. In the former case, the joint judgment considered that the Tribunal must take into account the chance that the applicant was so persecuted when determining whether there is a well-founded fear of future persecution, while in the latter case the Tribunal is not so bound given its apparent confidence in its conclusions. Equally, as the primary judge held at [26], a confident finding by the Tribunal on certain aspects of an applicant's claims may, as a matter of logic, render irrelevant or unnecessary an assessment of the truth of other claimed past events. 33 It follows, as Sackville explained in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 (Rajalingam) Sackville J at 240 [62], (North J agreeing), in passage on which the appellants placed particular weight here: [I]t is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution.

1.1.2 Did the primary judge err in applying these principles?

1.1.1.1 Matters not in issue 34 No issue was taken by the parties with the findings by the primary judge that: a) the Tribunal did not make a finding as to the truth or falsity of the "away without official leave hypothesis" (reasons below at [27]); and b) the "Asserted Claim" by the appellant was sufficiently raised before the Tribunal so as to require the Tribunal to consider that claim (reasons below at [15], read with [10]). 35 The "away without official leave hypothesis" was that the appellant had re-joined SA1 in [X], had remained a member until [X] when he departed his country of nationality and had departed without the knowledge and permission of SA1. 36 The "Asserted Claim" was that: [T]he first applicant had a well-founded fear of persecution by reason of the fact that, as a serving senior member of the [SA1] who had left the country without explanation for over 18 months, he would have imputed to him by [the country of nationality's] authorities a political opinion adverse to the … regime, and he would suffer persecution as a result. (reasons below at [10], referring to the Asserted Claim set out in appellant's application in the Court below) (emphasis added) 37 In this regard, counsel for the first appellant confirmed in oral submissions that the Asserted Claim was not put on the ground that the first appellant feared persecution by reason of the fact that he would no longer be able to complete his four year contract as it had since expired; nor was any such case sought to be raised on the appeal. It was the duration of time that had passed since he left the country without explanation as a serving senior member of SA1 and mid-contract which constituted the Asserted Claim. To the extent that the Minister's submissions assumed otherwise, they were not, therefore, to the point. 38 Finally, while there is some force in the Minster's counsel's point that the claim before the Tribunal was primarily based upon a fear of persecution because of the raid on his home and the anti-regime material found there, no notice of contention was filed taking issue with the finding by the Court below at [15].

1.1.1.2 Was the Tribunal required to proceed on the assumption that the "away without official leave hypothesis" was true? 39 The first ground of appeal centres on whether the primary judge correctly held at [31] that the "away without official leave hypothesis" was a claimed past event, the truth or falsity of which the Tribunal could lawfully find was unnecessary to assess. 40 The appellant submits in line with Rajalingam that the Tribunal was required to take into account the possibility that the claimed past events comprising the hypothesis had occurred in assessing whether he had a well-founded fear of persecution if returned, i.e., that he had rejoined SA1, was still serving within it when he departed, and had left without the permission or knowledge of SA1. First, the appellant submitted that the Tribunal was plainly uncertain as to the truth of those matters. No issue was taken with this proposition which was clear from the face of the decision. Secondly, the appellant submitted that those matters were crucial to his Asserted Claim. As to the second proposition, the appellant submitted that, once the possibility that the event comprising the hypothesis is taken into account, the Tribunal was confronted with an applicant who left his country of nationality when a senior serving officer of SA1 in [X year] and has remained abroad ever since without explanation for a period of more than 18 months by the time of the Tribunal's decision - a scenario which may well have led to a different outcome. 41 Despite, however, its potential significance to his claims, the appellant submits that that claim was not addressed by the Tribunal. As such, he submits that the Tribunal erred in a jurisdictional sense in failing to consider a scenario that justified his claim that his country of nationality would consider him to be either a failed asylum seeker, a spy or someone with opinions opposed to the regime. 42 I agree with these submissions. 43 First, at [50] the Tribunal set out its reasons by a series of dot points as to why it was "satisfied that there was no restriction on the applicant's departure from [the country of nationality] in [X year]", [X year] being a reference to the year of his departure. Consistently with this umbrella paragraph, the Tribunal considered relevantly whether there was a well-founded fear of persecution only at that time in the critical passage in the third dot point of [50] where it found that: I am unable to establish with confidence what his employment relationship was with [SA1] by [X year]. He has provided a letter from the [division of SA1] indicating that he was employed from [X date] in the [specified] section on a 4 year contact. If this document is genuine it may be that he was halfway through a contract when he left [his country of nationality]. Alternatively the contract may have been terminated prematurely, or he may in fact have been allowed to leave [his country of nationality] as an [SA 1] employee with the knowledge and permission of his employer. I am unable to make a finding on this point, but am not satisfied that when he left [his country of nationality] in [X year] he considered there was any risk to him in doing so, and am not satisfied that there was any such risk. 44 As such, the appellant correctly contends, in my view, that the Tribunal here addressed the question of whether the appellant considered he was at risk in leaving, and whether there was any such risk, only at the time of his departure from his country of nationality. The primary judge at [30] read the passage as limited in the same manner. Yet the Tribunal was required, in line with the principles to which I have referred, to consider the risks to the appellant in the future. Accordingly, in circumstances where the Tribunal was uncertain as to whether the past events comprising the "away without official leave hypothesis" had occurred and given the significance of those events to the appellant's claims, in my view it was required to consider the possibility that the hypothesis was true in order to undertake the required reasonable speculation: Rajalingam at 240 [62] (quoted at [33] above). In this regard, it is one thing to consider whether there is a well-founded fear of persecution where a person is absent without explanation or leave for a period of one month (as the appellant claimed was his intention when he left), and another to consider the risks of persecution after an unexplained absence without leave for over 18 months. The latter was not considered by the Tribunal despite the possibility for the duration of time since departure, when added with the other aspects of the appellant's claim, to affect the assessment of the chance that the feared harm might occur. As a consequence, I consider that the Tribunal failed constructively to exercise its jurisdiction. I do not consider that it is an answer to this to say that the Tribunal must have been aware of the passage of time. 45 Secondly, I do not accept the Minister's submission that any failure to address such a claim or risk is covered by the Tribunal's general findings at [78] and [83] of its reasons. At [78], the Tribunal found, in the context of considering the appellant's claim based upon imputed political opinion by reference to events following his departure, that: I do not consider that the applicant has a well-founded fear of being persecuted in [his country of nationality] for the Convention reason of political opinion. If he returns to [his country of nationality] he will do so as a person who has a record of long-standing loyalty to the regime. I have not accepted that any material has been located at his home that might change this perception of him. 46 Similarly, after referring to the appellant's confirmation that he feared persecution as a failed asylum seeker for his political views at [80], the Tribunal considered that there was no reason why the appellant should be suspected of having sought asylum in Australia given his background. Specifically, at [83] the Tribunal found that: I consider this evidence reliable [being evidence as to the risks for known asylum seekers in the country of nationality] but to no reason [sic] why the applicant might be suspected of having sought asylum. The applicant gave evidence that he had had a good life in [his country of nationality]. Has [sic] worked in the [SA1] throughout his professional life. He has never openly expressed any views critical of the state. If he was, as he claims, among a large number of the [SA1] members in [X year] questioned after one of their number expressed concerns about the treatment of protesters and was arrested, he does not claim that that had any ongoing effect on him. He provided written confirmation of his loyalty at the time and that was plainly accepted. 47 In the Minister's submissions, the Tribunal's findings at [78] and [83] "are of sufficient generality to negative the possibility that the Appellant would nevertheless be imputed with an anti-regime political opinion because of his having left [his country of nationality] as this ground suggests". In support of this submission, the Minister relied upon WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184; (2003) 75 ALD 630 (WAEE) at [47] where the Court (French, Sackville and Hely JJ) held that: The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 48 I do not, however, consider that this is a case where findings on a particular matter have been subsumed into findings of greater generality. The so-called findings of greater generality at [78] and [83] are secondary findings, with the primary facts which form the basis for those findings clearly identified in this instance by the Tribunal. No mention is made, however, of the duration of time which had elapsed since the appellant's departure, nor any consideration of that aspect of his claims against an assumption that the past events in the "away without official leave hypothesis" occurred. In the circumstances of this case, I consider that the appropriate inference to draw is that this significant aspect of the appellant's claims has, with respect, been overlooked by the Tribunal. It follows that the appeal must be allowed on this ground.

1.2 Ground 2: Did the Tribunal properly consider the appellant's claims under the complementary protection regime? 49 The appellant also contends that the primary judge ought to have found that the Tribunal erred in considering the appellant's alternative claim for complementary protection under s 36(2)(aa) of the Act on the basis that, if returned, he would be charged as a spy and face significant harm as a result. Section 36(2)(aa) provides that: A criterion for a protection visa is that the applicant for the visa is: … (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; 50 Section 36(2A) provides that a non-citizen will suffer significant harm if, among other things, the death penalty will be carried out on the non-citizen or the non-citizen will be subject to cruel, inhuman or degrading treatment or punishment. 51 The principles by which it is determined whether there has been a failure by the Tribunal to deal with an alleged contention that an applicant fears persecution for a Convention reason were considered in WAEE. In that case, the Full Court at [45] of its reasons identified two elements as key to demonstrating that the Tribunal has failed in the discharge of its duty under s 414 of the Act to conduct a review of the decision, namely: If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material... (emphasis added) 52 Their Honours emphasised that "[t]his is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision." (at [45]). 53 As I recently explained in SZTDY v Minister for Immigration and Border Protection [2015] FCA 303 at [38] with respect to the circumstances in which a failure to consider a contention will sound in such error: A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a "substantial, clearly articulated argument" that, if accepted, might establish a well-founded fear of persecution for a Convention reason (Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court); see also the helpful recent discussion of relevant principle in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 142 ALD 150 at [81]-[82] (Griffiths J). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which "squarely" arises on the material before the Tribunal in the sense that "it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal": NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] (the Court). In either case, the constructive failure to exercise jurisdiction may properly be seen as a failure to carry out the review required by s 414 of the Act: NABE at [55]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] (Allsop J with whom Spender J agreed at [1]). (abbreviations omitted) 54 The appellant submitted that, applying these principles, there had been a constructive failure to exercise jurisdiction because the Tribunal assessed the claim to fear persecution as a suspected spy erroneously only by reference to the Convention nexus of imputed political view. In this regard, the appellant submitted in his submissions at [19] that: Given the applicant's lengthy and unexplained absence, his knowledge of sensitive information… and his accepted seniority within the [SA1], there are reasons beyond the imputation of political opinion why the appellant may be thought or suspected to be a spy. These were not considered, and the Tribunal committed a jurisdictional error as a result. 55 As such, the appellant contends that the Tribunal conflated the tests of persecution and complementary protection: SZSSM v Minister for Immigration [2013] FCCA 1489 at [98]. 56 However, I accept, as the Minister submitted, that the reasons given at [19] of the appellant's submissions do not correlate with any "substantial, clearly articulated claim" by the appellant; nor is it a claim which squarely arose on the material before the Tribunal. In this regard it is relevant to take into account that the appellant was legally represented before the Tribunal and made detailed submissions as to the basis on which he claimed to fear harm if returned to his country of nationality: SASHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [37] (Robertson, Griffiths and Perry JJ). 57 I also agree with the primary judge that the Tribunal was correct to view the spy claim as being based only on the appellant's concerns that he would be imputed with a political opinion hostile to the regime of the country of nationality. As the primary judge held, the Tribunal did not erroneously assess the spy claim only by reference to the Convention criteria; rather all of the appellant's claims for protection, Convention based and for complementary protection, were ultimately based on the appellant's fear of being imputed with political opinions hostile to the regime of his country of nationality. In these circumstances, the Tribunal was entitled to proceed on the basis that the appellant's claims to fear persecution as a spy failed for the same reasons as his claim to fear being imputed with an anti-regime political opinion in the context of his Convention claim. Nonetheless, it follows from the correlation between the two claims that my findings allowing the appeal on ground 1 may have consequences for the consideration of this claim.

1.1 Ground 3: What was the relevance of the appellant's contention that he kept his dissident political opinions to himself?

1.1.1 The reasons of the primary judge 58 Ground 3 of the appeal turns upon whether the Tribunal was required to consider whether, if the appellant were returned to his country of nationality, he would keep his political views to himself because of a fear of persecution. 59 The primary judge identified the relevant test at [53] as follows: …whether or not the Tribunal in this case, when assessing the applicant's fear of persecution, was obliged to consider the applicant's keeping to himself his political opinions depends on: a) whether it was reasonably apparent from the material before the Tribunal that it was part of the applicant's claim (Asserted Repression of Behaviour Claim) that the persecution he had experienced in the past and apprehended in the future took the form of repression of behaviour about which he desired to be more open; or b) if (a) is answered in the negative, whether the Tribunal dealt with the application for review in a manner that went beyond the applicant's claim that was before the Tribunal and so obliged the Tribunal to consider whether the applicant feared persecution in the form of the repression of behaviour about which he desired to be open. [respectively, the first and second limbs of the repression of behaviour test] 60 After referring at [54] to various statements which the applicant said reasonably disclosed the Asserted Repression of Behaviour Claim, his Honour found that whether that claim was made could not be determined by looking at individual passages (at [55]). Rather, his Honour held at [56], applying the first limb of the repression of behaviour test, that: When the applicant's claim is considered in its entirety, the overwhelming impression it gives is that the applicant's claimed fear is that of being "persecuted for having political opinion against… the current regime [of the country of nationality] and my Ideologies and political views that have been revealed to the authorities of my country". The persecution he feared was "going to prison and losing my life and my family" The applicant described his fear in dramatic terms, describing what he feared as a "horrifying destiny". The applicant did not claim he left the [country of nationality] because he was unable to express his political opinions or because he feared persecution in the form of repression of behaviour about which he desired to be more open. He claimed he left the [country of nationality] "to come to see my family in Australia", and that was his "prime reason to come here to visit them". Nor did the applicant claim he feared that on his return he would be repressed from engaging in conduct about which he otherwise desired to be open. (Emphasis in the original) 61 Nor, the primary judge held, was the second limb of the repression of behaviour test engaged, finding at [57] that the Tribunal did not go beyond determining the appellant's claim.

1.1.2 The issues 62 The appellant contended first that the primary judge erred in holding that no such claim was made, having overlooked the express articulation of such a claim by the appellant in the submission from his legal representatives to the Tribunal. After submitting that the anti-regime material found in the appellant's home made him vulnerable to persecution on account of his actual and imputed political opinion, the submission stated in the passage relied upon by the appellant that: In addition, the applicant has expressed in his application and DIAC interview that when questioned by [SA1] he could not say what he really thought. The applicant instructs that he would be interviewed about once a year regarding inter alia, his loyalty and would have to respond in accordance with the regime's ideology. He also recalls on one occasion expressing a view to a colleague at lunchtime and that same subject uncannily broached in his interview some months later. He instructs that there is a high level of compartmentalising within [SA1] and that colleagues are mistrustful of each other. 63 It is not clear to me, however, that this was a claim to fear persecution that "took the form of repression of behaviour about which he desired to be more open", being the test as formulated by the primary judge. Moreover, the Minister submitted that a claim that the appellant was unable to express his political views in his country of nationality "is not on any view a claim that the Appellant had suffered past or would suffer future 'serious harm' within s 91R(1)". There is some force in that submission (assuming the correctness of its premise), given that s 91R(1) provides that, for the purposes of the Act, Article 1A(2) of the Convention does not apply in relation to persecution for a Convention reason unless, relevantly, the persecution "involves serious harm to the person" and "systemic and discriminatory conduct". Instances of "serious harm" given in s 91R(2) include a threat to the person's life or liberty, significant physical ill-treatment, and denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. 64 More fundamentally, however, the Minister submitted that the approach adopted by the primary judge was consistent with a line of authority commencing with the decision of the High Court in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (S395/2002). In short, save for cases where the Tribunal required or expected the appellant to modify his behaviour in any way (which the appellant does not allege here), the Minister submitted that there would be no error on the principles articulated in S395/2002 absent a claim by the appellant that the persecution which he fears includes the inability to express his political opinions. The Minister submitted that, as the primary judge had correctly held that no such claim was made, ground 3 must be dismissed. 65 The appellant however, submitted that that line of authority lends no support to the approach adopted below but rather reveals that the Tribunal failed properly to discharge its statutory duty. Specifically, in his submission, having assumed that the appellant will act in a way that will reduce a risk of persecution otherwise well-founded by keeping his political opinions to himself, the Tribunal must, but failed to, consider why he would act in that way, i.e. whether his discretion with respect to his political views was influenced by the threat of persecution. Failing that, the appellant submits, the Tribunal will have failed properly to consider whether he has a well-founded fear of persecution. 66 There is, therefore, a division between the parties as to how S395/2002 and subsequent authorities are to be understood and it is necessary to consider the authorities with some care.

1.1.3 The decision of the High Court in S395/2002 67 In my view, the decision in S395/2002 stands for three propositions. 68 First, the Tribunal will fall into error if it assesses a claim on the basis that an applicant is expected to take reasonable steps to avoid persecution if returned to his or her country of origin. Its task is to assess what an applicant will do, as opposed to what he or she should do: S395/2002 at 489 [40] and 492 [50] (McHugh and Kirby JJ) and 500 [80] and 501 [82] (Gummow and Hayne JJ). As McHugh and Kirby JJ held at 489 [40]: Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps - reasonable or otherwise - to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a "particular social group" if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. 69 Secondly, if the Tribunal finds that a person will act in a way that will reduce the risk of persecution that would otherwise been well-founded, the Tribunal must consider why the person will act in that way and, in particular, whether that conduct is influenced by the threat of harm. Specifically at 490-491 [43], McHugh and Kirby JJ held that: 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 is 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 the original) 70 Similarly, Gummow and Hayne JJ held at [88] that the error by the Tribunal was its failure to ask why the appellants would live discreetly and whether that was because they hoped to avoid persecution. Thus, in S395/2002 the Tribunal had accepted that it was not possible for the visa applicants to live openly as homosexual men in Bangladesh but found that they did not have a well-founded fear of persecution because there was no reason to suppose that they would not continue to conduct themselves in a discrete manner, as they had in the past. In so finding the majority held that the Tribunal had failed to consider the statutory question of whether the applicants had a well-founded fear of persecution. As Gummow, Hayne and Crennan J later observed regarding S395/2002, "[t]he Tribunal had not asked whether 'discretion' was the price to be paid to avoid persecution.": SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 (SZATV) at 28 [28]. 71 Thirdly, the majority found that the Tribunal had erred in failing to consider whether the appellant might suffer harm if, for one reason or another, their homosexual identity was exposed: at 494 [56] and 502 [85]-[86]. As McHugh and Kirby JJ, for example, explained "[t]he perils faced by the appellants were not necessarily confined to their own conduct, discreet or otherwise." (S395/2002 at 494 [56]). The Tribunal will, therefore, fall into error if, having found that a person will act in a way that will reduce the risk of persecution, it does not then consider whether the person nevertheless has a well-founded fear of persecution because, despite the conduct reducing the risk, there is still a real risk that the person will be persecuted. 72 It is upon the second proposition that the appellant relies here although, if correct, that may also reveal error of the kind identified in the third proposition. In my view, the appellant correctly submits that the Minister's contention that the feared persecution must take the form of the modified conduct or repressed behaviour rests on the fallacy against which McHugh and Kirby JJ warned. It is to assume that the relevant persecutory conduct is the harm that will be inflicted. However, as their Honours made clear, the concept of a well-founded fear of persecution is concerned with the threat of harm. Consistently with this, the appellants in S395/2002 claimed a fear of persecution because they were homosexual, not because they would be forced to be discreet about their homosexuality if they were returned: S395/2002 at [32]. It follows, in my view, that the primary judge erred in approaching the issue by asking whether the appellant had claimed that the persecution he had experienced in the past and apprehended in the future took the form of repressed behaviour about which he desired to be more open.

1.1.4 Subsequent authorities 73 Nothing in the later decisions upon which the Minister relied suggests any different approach. They confirm the approach adopted in S395/2002 and illustrate its application. 74 First, NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 79 ALJR 1142 distinguished the decision in S395/2002 on the basis that the Tribunal had properly considered the question of whether the applicant had a well-founded fear of persecution. In that case, the appellant, who had converted to Christianity, claimed to fear persecution in Iran as either an apostate or a Christian. The majority held that: a) the Tribunal in distinguishing on the country information between Christians in Iran who go about their devotions quietly and maintain a low profile who would generally not disturbed, and those involved in aggressive outreach through proselytising, the Tribunal did not err in finding that not all Christians in Iran suffer persecution or a real chance of prosecution; b) it then gave proper consideration to the appellant's personal circumstances and addressed the fundamental question of whether the appellant had a well-founded fear of persecution on the ground of religion; and c) it did not ask, as in S395/2002, whether it was possible for the appellant to live in Iran in such a way as to avoid adverse consequences. (NABD at [7]-[11] (Gleeson CJ) and [150]-[151] and [160]-[169] (Hayne and Heydon JJ)). 75 However, S395/2002 was followed by the High Court in SZATV. In that case, the Tribunal had found that it was reasonable for the appellant, having suffered persecution for his political opinions in one region of Ukraine, to relocate to another region as he did not have antigovernment profile generally in the Ukraine and might be able to obtain other work not involving the expression to the public of his political opinions. In their joint judgment, Gummow, Hayne and Crennan JJ accepted the Minister's framing of the issue, namely, "whether it is reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution" (at [23]). This was subject, however, to the caveat that what is "reasonable" in the sense of "practicable", "must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality" (at [24]). 76 Applying that test, the Court held that the Tribunal had erred. Specifically at [32], Gummow, Hayne and Crennan JJ held that: The effect of the Tribunal's stance was that the appellant was expected to move elsewhere in Ukraine and live "discreetly" so as not to attract the adverse interest of the authorities in his new location, lest he be further persecuted by reason of his political opinions. By this reasoning the Tribunal sidestepped consideration of what might reasonably be expected of the appellant with respect to his "relocation" in Ukraine. It represents an error of law, going to an essential task of the Tribunal. This was determination of whether the appellant's fear of persecution was "well-founded" in the Convention sense and thus for the purposes of s 36(2) of the Act. 77 Finally, the approach adopted in S395/2002 was again confirmed in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 89 ALJR 47. In that case, French CJ, Hayne, Kiefel and Keane JJ explained (at 51 [17]) that: The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the inquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct inquiry was directed - whether the fear of persecution was well founded - had not been addressed. 78 Consistently with this, the decision in S395/2002 was distinguished in SZSCA on the ground that the critical aspect of the Tribunal's reasons in SZSCA was its finding that the respondent would not face a real chance of persecution if he remained in Kabul and did not travel on the roads between Kabul and Jaghori (SZSCA at [18]). In contrast therefore to S395/2002, their Honours held that the Tribunal had not diverted itself from considering whether the visa applicant would face a real chance of persecution if he returned to Afghanistan (ibid).

1.1.5 Did the Tribunal fail to address the required question? 79 It follows, as I have held, that the primary judge erred in conflating the question of the harm feared, on the one hand, with the repressed behaviour, on the other hand. The question is then whether, applying the principles to which I have referred, the Tribunal failed properly to consider whether the appellant had a well-founded fear of persecution. 80 Importantly in this regard, the Tribunal at [65] of its reasons, in recanting the interview with the appellant, stated that: The applicant said that he believed in a secular system of government. I put to him that he had lived his entire professional life protecting the values of a theocratic regime, to which he responded "yes I can't blame you for thinking like that". He added that he had done it for 25 years but had just pretended to believe in it when he was asked. That had not hurt anyone. He had counted the minutes until he could leave [SA1]. 81 The Tribunal appears to have taken this into account in finding that if the applicant returns to his country of nationality, he will do so as a person who has a record of long-standing loyalty to the regime. Furthermore in rejecting the failed asylum seeker claim, the Tribunal expressly took into account that the appellant "has never openly expressed any views critical of the state" (at [83]). In each of these passages, in my view the Tribunal implicitly accepts that the appellant holds these dissident views, or assumes the truth of his claim to hold these views. Furthermore, as earlier mentioned, the Tribunal accepted evidence as to a risk of serious harm to former high level SA1 members who had openly shown their dissatisfaction with the regime: see above at [14]. Underlying the Tribunal's reasons, therefore, is an assumption that the appellant will continue to keep these views to himself. 82 However, the critical omission from these passages and from the Tribunal's reasons generally is any consideration of why the appellant has in the past, and might be expected in the future, to keep his political views to himself and whether his conduct in so doing was influenced by the threat of harm if those views were exposed. It follows, in my view, that the Tribunal has failed to consider properly the issue of "real chance" and fallen into jurisdictional error. I am confirmed in my view that the Tribunal erred in this way by its focus upon whether the authorities might impute to the appellant a political opinion (which he in fact holds) which the Tribunal described as his sole claim, as opposed to his claims insofar as they relate to his actual political opinions.

2. CONCLUSION 83 For the reasons set out above, the appeal should be allowed with costs. I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.