FEDERAL COURT OF AUSTRALIA SZASP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 151 MIGRATION –whether the Refugee Review Tribunal foreclosed upon reasonable speculation as to persecution of the appellant on his return to his country of origin Haji Ibrahim v Minister for Immigration and Multicultural Affairs (2001) CLR 1 referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to Minister or Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 referred to Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 cited Abebe v Commonwealth (1999) 73 ALJR 504; 162 ALR 1 cited SZASP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1606 OF 2004 CONTI J 28 FEBRUARY 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1606 OF 2004 BETWEEN: SZASP APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: CONTI J DATE OF ORDER: 28 FEBRUARY 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal assessed at $3500. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1606 OF 2004 BETWEEN: SZASP APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: CONTI J DATE: 28 FEBRUARY 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from the judgement of Lloyd-Jones FM given on 15 October 2004, whereby his Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('RRT') handed down on 22 November 2000. The RRT decision had affirmed the decision of the delegate of the Minister made on 21 April 1998, which had refused the appellant's application for a protection visa. 2 The appellant is a 29 year old Bangladeshi national from Dhaka in Bangladesh, who entered Australia on 7 October 1997, travelling on what the RRT found to be a fake Indian passport and a temporary business visa. The appellant lodged an application for a protection visa on 19 November 1997, and in a statement subsequently provided to the delegate, he claimed that he feared persecution on the basis of his political opinion and activities. 3 The appellant's notice of appeal contained three grounds of appeal. Two were pursued at the hearing as follows: (i) the Court erred in holding that there was no jurisdictional error in the RRT's finding that injuries inflicted on the appellant had to be disabling or life threatening to constitute persecution; and (ii) the Court erred in holding that the RRT had not committed consequential error in its finding, partly on the basis that the appellant had not been persecuted in the past, that he did not have a well founded fear of persecution were he to return to Bangladesh. 4 Specifically the appellant made complaint about what appears in pars 93, 94 and 95 of the reasons for judgment below, which read as follows: 'Before answering these overall issues, I intend to consider the five central propositions that are advanced by the applicant. The first of these propositions is the analysis of the single sentence that appears in Court Book at page 81 and is previously quoted at paragraph 71. I have considered the arguments put forward by the applicant in respect of this sentence and I have re-read it in the context of the surrounding paragraphs. I accept the argument that in the two relevant paragraphs, the Tribunal is setting out the parameters of a question, then answers that question that it has posed. I believe this is the correct context and construction of the Tribunal's enquiry and decision making process. The analysis of the single sentence out of context gives the result that is at odds with the Tribunal's findings. The severity of the injuries suffered by the applicant need to be examined in an inquisitorial manner to determine the actual severity. This is the fact finding role of the Trinal and the process must reside with that body. The process adopted is part of the evaluation process to determine whether the applicant will be persecuted for Convention reasons in the foreseeable future if he returns to Bangladesh. There is a weighting process that will be influenced by the effluxion of time and the applicant's level of involvement together with other factors, such as the change in the political make up of the party's structure. These factors constitute the possible environment that the applicant would return to in Bangladesh a number of years since his original departure.' 5 Those findings concerned complaints made by the appellant in the Court below about certain matters that appear in the RRT's reasons for decision, as follows: 'According to the applicant's own evidence, he had been involved in violence under the umbrella of the JP (Jatio Party) since he was a young student in 1991, yet there was only one occasion that he himself was violently attacked. The result of that attack was that he had to have four stitches in his head, an injury which, while undoubtedly painful, was not claimed to be seriously disabling or life threatening. It is clear from the evidence that the applicant's level of involvement in the JP was insufficient to make him a target of persecution in the past. The Tribunal is therefore not satisfied that there is a real chance that the applicant would be persecuted by rival political gangs if he returned to Bangladesh.' 6 The appellant submitted that the observation of the RRT contained in the above passage: 'The result of that attack was that he had to have four stitches in his head, an injury which, while undoubtedly painful, was not claimed to be seriously disabling or life threatening.' Together with the following sentence, made it abundantly clear that the Tribunal considered that a physical injury had to be disabling or life threatening if it was to be 'persecutory' within the meaning of the Convention'. The appellant referred to examples of what may constitute persecution within the Refugees Convention, citing what McHugh J summarised in Haji Ibrahim v Minister for Immigration and Multicultural Affairs (2001) 204 CLR 1 at 20-21 in a dissenting judgment, though uncontroversially, as to the ordinary meaning of persecution being '… when it is done for a Convention reason and when it is so oppressive or recurrent that a person cannot be expected to tolerate it', or being where '… harassment… is so constant and unrelenting that the victims feel deprived of all hope of recourse, short of flight, from government by oppression…', or being referrable to the circumstance where a person 'is outside the country of his nationality and is unable or, owing to such [well founded] fear, is unwilling to avail himself [or herself] of the protection of that country'. The Minister took issue with the appellant's characterisation, to that effect, of the RRT's reasons. 7 It was submitted by the Minister below, being a submission accepted by Lloyd-Jones FM, that care must be taken in construing an administrative decision-maker's reasons. I was referred to the following passage in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2, where it was said to be a well settled proposition that a Court should not be concerned with looseness of language, nor with the unhappy phrasing, of the reasons of an administrative decision-maker, and that the reasons for decision under review are not to be construed minutely and finely with an eye attuned to the perception of error, and further that the reality is that the reasons of an administrative decision-maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy might be gleaned from the way in which the reasons are expressed. 8 The observation complained of appeared in the following broader context appearing in the RRT's reasons for decision: 'According to the applicant's own evidence, he had been involved in violence under the umbrella of the JP (Jatio Party) since he was a young student in 1991, yet there was only one occasion that he himself was violently attacked. The result of that attack was that he had to have four stitches in his head, an injury which, while undoubtedly painful, was not claimed to be seriously disabling or life threatening. It is clear from the evidence that the applicant's level of involvement in the JP was insufficient to make him a target of persecution in the past. The Tribunal is therefore not satisfied that there is a real chance that the applicant would be persecuted by rival political gangs if he returned to Bangladesh.' 9 As was pointed out by counsel for the Minister, the appellant's submission depended upon a link between the sentence (earlier cited above), being: 'The result of that attack was that he had to have four stitches in his head, an injury which, while undoubtedly painful, was not claimed to have been seriously disabling or lift-threatening.' and the next following sentence: 'It is clear from the evidence that the applicant's level of involvement with the JP was insufficient to make him a target for persecution in the past.' To thereby interpret what the RRT was saying as, to be in effect: 'The applicant has not suffered persecution in the past because the harm he suffered in the 1997 attack was insufficiently serious to amount to persecution.' So much was said by counsel for the Minister to be a misconstruction of the RRT's reasons. 10 It is tolerably clear from the RRT's reasons extracted in [8] above that the RRT accepted that the 1997 attack did occur, but it then suggested, without deciding, as counsel for the Minister rightly contended, that perhaps the true motivation for the attack was not political opinion, but retaliation for past violence by the appellant against his attackers. The RRT then observed, without accepting any nexus between the attack and the appellant's political opinion, that even if it were nevertheless to accept that such nexus existed, so much would be insufficient to find the appellant to be a refugee, the RRT having emphasised that the ultimate inquiry it was required to embark upon was the determination whether the appellant was a refugee. 11 In the second paragraph I have extracted in [6] above, which contains the material which the appellant seeks to impugn, the RRT observed that it was political opponents which the appellant claimed to fear, and that in particular, he appeared to be fearful of his 1997 attackers, that being merely a further statement of the appellant's claims. 12 The RRT thereafter found that it was highly unlikely, after more than three years of volatile politics in Bangladesh, that the appellant would be remembered by the Awami League and BNP supporters as a young JP supporter who was merely a rank and file member, even if he had been involved in violence. As to the claims that he had been involved in violence, the RRT then went on to observe that the appellant's evidence asserted an involvement in violence since 1991, yet only claimed one occasion where he had been violently attacked. It recorded that '[t]he result of that attack was that he had to have four stitches in his head', being thus 'an injury which, while undoubtedly painful, was not claimed to have been seriously disabling or life-threatening', all that being described by the RRT as 'undoubtedly painful', but 'not claimed to have been seriously disabling or life threatening'. 13 The next finding of the RRT to which the Minister drew attention was that '[i]t is clear from the evidence that the applicant's level of involvement with the JP was insufficient to make him a target for persecution in the past', and that it was 'therefore not satisfied that there is a real chance that the applicant would be persecuted by rival political gangs if he returned to Bangladesh'. Thus counsel for the Minister asserted that the low level of the appellant's political activities had failed to mark him as a target for persecution in the past. However the RRT did not find, as the appellant nevertheless submitted, that the applicant's injury suffered in 1997 was insufficiently serious to constitute persecution; accordingly counsel for the Minister contended that the factual premise underlying the appellant's submission had not been made out. 14 The appellant next submitted as follows: 'Further, in limiting its consideration of whether [the appellant] has been persecuted in the past [for] the physical injuries that he sustained, the Tribunal failed to consider the totality of the appellant's circumstances in deciding whether the treatment he sustained was persecutory. The attack on his family home was relevant to this question.' The Minister's response was that the RRT did not limit its consideration of whether the appellant had been persecuted in the past to the physical injuries that he sustained, and that the RRT did give consideration to the attack on the appellant's home. The following passages from page 14 of the RRT's reasons for decision seem to me to sufficiently indicate the contrary: 'The Tribunal accepts that Awami League supporters attacked the applicant and his family at home in September 1996. The applicant at the hearing did not appear to contradict the Tribunal's suggestion that an attack of this kind was probably retaliation against him for his violence against his opponents. The applicant on this occasion ran away, and was not harmed. The fact that he reported this incident to his JP leadership, and that they apparently dealt with his attackers, suggests that he was at this stage not fearful that he would be seriously harmed if he continued to do the work the JP leaders wanted him to do. The applicant did not put forward claims of any other harmful incidents until the attack on him in March 1997. The Tribunal accepts that on this occasion the applicant was attacked and that he sustained a blow to the head requiring hospitalisation. While the applicant did not recognise any of his attackers, the Tribunal is prepared to accept that they were from a rival political gang. The Tribunal accepted that the applicant left Bangladesh about May 1997 for India. Although the attack on the applicant was undoubtedly a factor in his decision to leave, the applicant's evidence is to the effect that his parents were angry about his involvement in political violence and wanted him to leave the household. He has not been in contact with them since. The applicant also stated that he had lost whatever interest he had in politics before he left for India, suggesting that he wanted to extricate himself from the JP's activities, as well as wanting to avoid rival political gangs, by leaving the country.' Having addressed the evidence in relation to that attack, what the RRT did determine in effect was not to give the same the significance for which the appellant contended : see again what I have extracted from its reasons for decision in [8] above. 15 The reasons for judgment below of Lloyd-Jones FM were very thoroughly and competently assembled. His Honour purported to apply the principles emanating from Wu Shan Liang, and after considering seriatim five propositions advanced to his Honour and in the light of a careful appraisal of the findings and reasoning of the RRT, his Honour rejected the submissions of the appellant below as to existence of any jurisdictional error on the part of the RRT. 16 I do not think, contrary to the appellant's submissions, that the RRT's approach 'placed the hurdle too high', or that the RRT failed to consider the totality of the appellant's circumstances, or that the RRT arrived at a conclusion as to past persecution, such as to indicate that it was open to be concluded that the appellant would be persecuted in the future if he was returned to his country of origin of Bangladesh. Counsel for the appellant referred me to dictum of Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 239-240 (par [60]-[64]), where his Honour observed as follows, after citing Minister or Immigration and Multicultural Affairs v Wu Shiang Wang (emphasis in original): '60. It follows from the observations of the High Court in Wu Shan Liang and Guo [Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559] that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a "real substantial basis" for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring. 61. The RRT performs its fact-finding task as an administrative decision-maker. Although the civil standard of proof is not irrelevant to the process, the RRT cannot simply apply that standard to all fact-finding. Moreover, the RRT must frequently makes its assessment on the basis of fragmented, incomplete and confused information. It has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision-maker/investigator. As Gummow and Hayne JJ remarked in Ex parte Abebe [Abebe v Commonwealth (1999) 73 ALJR 504; 162 ALR 1] at [191]: "[i]t is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself." Even applicants with a genuine fear of prosecution may not present as models of consistency or transparent veracity.' 62. In this context, it 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 the is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur. 63. Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant as a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found". 64. In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.' 17 I do not think that the approach below of the RRT, or of his Honour, offended the principles underpinning his Honour's dictum there set out. The critical issue thus posed by counsel for the appellant, namely whether the RRT foreclosed reasonable speculation upon the chance that a hypothetical future event might occur. Implicitly from the RRT's findings and reasons therefor, there was no reasonable or sufficient basis for imputing the reasonable possibility of persecution on the appellant's return to Bangladesh, being persecution of course for the Convention reason. 18 Accordingly I am of the view that the appeal must be dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: Counsel for the Applicant: LJ Karp Solicitor for the Applicant: Parish Patience Immigration, Lawyers Counsel for the Respondent: JAC Potts Solicitor for the Respondent: Clayton Utz Date of Hearing: 10 February 2005 Date of Judgment: 28 February 2005