Case: WAHK v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 22
Outcome: followed
The principal issue for consideration before the learned Federal Magistrate was whether the RRT erred in law by not taking into consideration the appellant's subjective state of mind when determining whether the appellant had a well-founded fear of persecution on his return to Kenya. The Federal Magistrate found that the RRT had considered the relevant information, including submissions made for and on behalf of the appellant and available country information. His Honour found that once the RRT was satisfied that there was no objective basis for a well-founded fear of persecution, it was not required to further consider the subjective fear of the appellant (following the approach in SCAM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 964 (" SCAM ") and WAHK v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 22 (" WAHK ")). Accordingly, he dismissed the application. 11 The first respondent submitted that the RRT was not required to consider subjective factors once it had found that the appellant did not have an objective basis to fear persecution. In the respondent's submission, von Doussa J rejected an argument similar to that of the appellant in SCAM . The respondent maintained that the view of Gaudron J in Chan , and therefore the appellant's argument, was further disapproved by a Full Court of this Court in WAHK . The first respondent submitted that an argument such as that now being put by the appellant had been rejected by the Full Court in SVTB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 104 (" SVTB ") at [16]-[21]. The first respondent maintained that there was no basis for formulating a different standard where it was found that the visa applicant had left his or her country of origin with a well-founded fear of persecution at that time. 14 The RRT was not in error when if failed expressly to consider the appellant's subjective state. It is true that, if the applicant were to succeed, then the Tribunal had to be satisfied that he subjectively held a fear of persecution if returned to Kenya and that his fear was well-founded. As the Federal Magistrate found, the Full Court decision in WAHK is contrary to the appellant's claim that the RRT was required to consider subjective factors. In WAHK , Lee and Tamberlin JJ said (at [12]-[14]) as follows (emphasis mine): " Where the RRT has accepted that an applicant had a well-founded risk of persecution at the time of their departure, a question arises concerning the approach that the RRT should take, in view of that finding, at the time it makes its decision concerning whether that applicant would have a well-founded risk of persecution, if they were returned. In [Chan] , Gaudron J, (at 415), accepted that the correct approach to a submission as to changed circumstances is as follows: " If an applicant relied on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of the subsequent changes in the country of nationality. " The above view was not shared by Gummow J, who, in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 659, said that the view of Gaudron J in Chan (quoted above) did not represent the view of the Court in Chan . Gaudron J accepted that this observation was correct in the case of Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [69] . Her Honour considered that her approach was, nevertheless, correct. The relevant question is whether, as at 29 May 2002, the objective facts establish that the appellant had a well-founded fear of persecution. This is to be assessed on an objective basis , and not on the basis that the fear of a reasonable person in the position of the claimant would not be allayed by knowledge of subsequent changes in the country of nationality. The reference to a "well-founded fear" is a reference to the objective factual position at that time. " The majority's approach is directly contrary to the position of the appellant in this case. Consistently with WAHK , if the RRT is not satisfied, objectively speaking, that there was a real chance of persecution then it does not have to further consider an applicant's subjective fear. This is because, without a sufficient objective chance of persecution, the applicant cannot have a well-founded fear of persecution: see also WAKZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1065 at [46] - [49] and SVTB at [21].