Case: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2004) 216 CLR 473
Outcome: referred to
It is also true, as the appellant submitted, that the Tribunal commits an error of law if it imposes a requirement on an applicant to modify his or her behaviour or if it fails to consider the reason(s) for modified behaviour and, if fear of persecution is a reason, if it fails to consider if the fear of harm is well-founded and whether the threat of harm itself constitutes persecution: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2004) 216 CLR 473 (" Appellant S395/2002 "). 31 In my opinion, the Tribunal did not fail to consider whether the appellant had a well-founded fear of persecution based on his conversion from Islam to Christianity. It must be remembered that the focus of the appellant's claim was that Jihadists were pursuing him at the instigation of his uncle. The Tribunal clearly rejected that claim. It rejected the appellant's assertion that there had been five incidents involving the appellant and Jihadists in Kano in 2002 and it rejected the assertion that Jihadists were searching for him. It rejected his explanation for travelling to Kano in June 2004 in light of his evidence that Jihadists were pursuing him as "far fetched and implausible". Any suggestion that the Tribunal was not entitled to make those findings on the evidence must be rejected. 32 Once the appellant's claim that he was being pursued by Jihadists at the instigation of his uncle is rejected and (as was the case) in the absence of any evidence or material to support a conclusion that the appellant would be identified by Jihadists as a convert, it was appropriate that the Tribunal consider, as it did, the general situation in Nigeria and, in particular, the fact that half of the country's population is Christian. In other words, it was appropriate for the Tribunal at that point to consider whether the appellant would or may face persecution by reason of the fact that he was a Christian. 33 I do not think the Tribunal made the error of treating what has happened as decisive in terms of whether there is a well-founded fear of persecution (see the discussion in Appellant S395/2002 at 498 [72]-[77]). It dealt with the principal case advanced by the appellant and rejected it. There was no evidence that the appellant's conversion would be discovered and the mere fact that he was a Christian would not give rise to a well-founded fear of persecution. 34 Furthermore, I do not think the Tribunal erred in its approach to the appellant's modified behaviour. It is not clear to me whether the Tribunal accepted the appellant's evidence that he had modified his behaviour. It appears that the Tribunal may have proceeded on the basis that even if the appellant had modified his behaviour in Lagos and even if that was because he feared persecution, the fear of persecution was not well-founded. I do not think there is any error in that approach. Once the Tribunal member made the findings she did and in particular once she rejected the appellant's principal claim it was open to her to conclude that even if the appellant genuinely feared persecution the fear was not well-founded.