Case: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: followed
The appellant argued two grounds on appeal as to why the tribunal committed a jurisdictional error. Each is related. The first is that the tribunal failed to ask whether the appellant's cessation of his political activities, and his failure to express interest in further involvement in them, was a consequence of the persecutory treatment which the tribunal found he had suffered. This ground is based on the decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473. 7 The second ground is that the tribunal failed to consider whether the appellant had a well-founded fear of persecution, having regard to his individual circumstances, characteristics and history, because it was necessary for him to be inactive politically in China in order to avoid persecution. 8 In essence, the tribunal accepted all the appellant's claims of what had happened to him as being truthful. The trial judge found that no evidence was ever given to the tribunal corroborating any part of the appellant's original claims ( SZHBP [2007] FMCA 511 at [5] ). However, his Honour was incorrect. The tribunal found that at the hearing the appellant '... essentially repeated the claims he provided to the Department'. Those claims had been made in a statutory declaration which accompanied the appellant's claim for a protection visa. It is necessary to set out the claims in a little more detail than the summary I have already given. Since the tribunal accepted them, I have treated the claims as facts found by it. 9 The appellant was a self-employed truck driver engaged in transportation jobs in China. He had given one of his friends a job of transporting some building materials. In the course of executing that job the friend's small truck fell into a ravine when he was overtaken illegally by another truck. The appellant's friend survived the accident but was paralysed permanently. The friend was married with a small child and aged parents. Following the accident the friend was no longer able to support his family. The driver at fault did not have a driver's licence but his father was a senior and powerful government official in one of the Chinese provinces. The official used his position in government to protect his son from punishment and from having any obligation to pay compensation to the appellant's friend. 10 The appellant said that he could not keep silent about this state of affairs because he felt a sense of responsibility, having transferred the job to his friend. Between July to October 2003, the appellant engaged in a number of activities to seek redress for his friend. First, the appellant approached lawyers for legal assistance, but none wished to help him bring a case against a prominent government official's family. Secondly, the appellant contacted the local court seeking to sue the driver at fault together with his father. But the court refused to accept the application on the basis that the appellant was not qualified to bring it. The third action the appellant took was to gather a petition with some self-employed drivers, including his friend's relatives and friends. He sent the petition to the local, and then provincial, governments. The governmental response to the petition was to say that the public security bureau (PSB) had already made a fair decision not to take any action against the driver at fault. 21 The Minister argued that the tribunal correctly addressed the fundamental question: namely, whether the appellant had a well founded fear of persecution for a Convention reason. He said that the principle in Appellant S395 216 CLR 473 was that the tribunal's function was to make that fact-specific inquiry in respect of the appellant's articulated claims, relying on Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at 39 [162] per Hayne and Heydon JJ; see also 3-4 [8]-[11] per Gleeson CJ, 8-10 [27]-[31] per McHugh J, 16 [55] per Kirby J. He argued that once the tribunal addressed that inquiry it did not need to go further. 22 The Minister also argued that the tribunal's reasons exhaustively considered the appellant's actual claims. He said that the tribunal was not required to consider whether the persecutory conduct it found may have induced the appellant to drop his protest or to give up a wish to involve himself in political activity. Rather, the Minister submitted, the tribunal properly addressed all the claims which the appellant had actually made. 25 In Appellant [2003] HCA 71 ; S395 216 CLR 473, the tribunal concluded that because the appellants had lived together in Bangladesh for over 4 years without experiencing any more than minor problems with anyone outside their own families, they had conducted themselves in a discrete manner. It found that there was no reason that they would not continue to do so if they were returned to Bangladesh. Accordingly, the tribunal concluded that the persecutory behaviour of Bangladeshi society towards homosexuals did not give rise to a well-founded fear of persecution because the applicants in that case would live there discretely. 26 The majority of the High Court held that this approach constituted a jurisdictional error. McHugh and Kirby JJ noted there that the applicants had not raised any issue of modifying their behaviour because they feared persecution. However, their Honours said ( Appellant S395 216 CLR at 489 [39]): ' ... it seems highly likely that they acted discreetly in the past because they feared they would suffer harm unless they did. If it is an error of law to reject a Convention claim because the applicant can avoid harm by acting discreetly, the Tribunal not only erred in law but has failed to consider the real question that it had to decide - whether the appellants had a well-founded fear of persecution.' (Emphasis added.) Their Honours answered affirmatively the hypothesis they posed, concluding that the tribunal had erred in law. They said ( Appellant S395 216 CLR at 490-491 [43]): 'The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. 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 has 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.' (Their Honours' emphasis.) 27 I am of opinion that the tribunal's reasons disclose a jurisdictional error. The tribunal was required by s 425(1) of the Act to identify 'the issues arising in relation to the decision under review'. The Act assumes that issues can be identified as arising in relation to the review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 600 [33] - [34] , 601 [40] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. The tribunal failed to enquire whether the appellant's lack of political involvement and interest after his release from detention in 2003 occurred as a consequence of the persecutory conduct he had suffered. (cf: Appellant S395 216 CLR at 493 [51] per McHugh and Kirby JJ). 28 The tribunal determined the issue of whether the appellant had a well-founded fear of persecution if he returned to China on the basis that he no longer wished to express political opinion. But in doing so it did not address why he no longer wished to exercise this fundamental right. Nor did it address whether the appellant's current position had been affected by the past conduct of the Chinese authorities towards him. Just as McHugh and Kirby JJ had held in Appellant S395 216 CLR at 489 [39], despite the fact that the appellant here did not raise explicitly any issue that he had modified his behaviour because of his fear of persecution, I am of opinion that it is highly likely that he did so. 29 The tribunal's findings of the harm which the appellant had suffered were that he had been jailed, tortured, made to sign a confession and he had then spent the next six months being harassed by the authorities until he had to flee here. The harassment continued to occur even when he had ceased expressing his opinions. The tribunal did not ask what effect that harm and the threat of its repetition in the future had on the appellant. In particular it did not consider why he had lost interest in expressing his political opinions. It is difficult to think that a person who had organised a sustained public campaign to achieve justice for his paralysed friend had lost all interest in the pursuit of that end independently of any connection to his arrest on the day of the final protest and his subjection to persecutory conduct for the next nine months. 30 The tribunal did not address whether the modification in the appellant's desire to pursue his political activity of seeking justice for his friend had been influenced by the actual harm that he had suffered and the threat of its continuation. Even in jail, for a time, he resisted making a confession until, as the tribunal found, he could no longer bear his mistreatment. That is not insignificant in the scheme of a proper consideration of whether his fear was well-founded. As McHugh and Kirby JJ said in Appellant S395 216 CLR at 489 [40]: '... 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.' 31 Given that the tribunal had accepted the appellant's claims of mistreatment by the authorities directly caused by his political activity, the tribunal had to ask itself the question why, after experiencing that persecutory conduct, had he ceased to pursue or be interested in further political activity. Here, the tribunal should have asked the question why the appellant no longer wished to raise the political opinion which he had previously expressed. Gummow and Hayne JJ said in Appellant S395 216 CLR at 503 [88] that the tribunal there, as here, did not ask why the appellant would live 'discreetly'. Gummow and Hayne JJ said of the tribunal: 'It did not ask whether the appellants would live "discreetly" because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention.' 32 Similarly here, the real question for the tribunal was what caused the appellant's change of heart. As McHugh and Kirby JJ had said, it is fallacious to assume that a person's conduct is uninfluenced by the conduct of the persecutor and that the only relevant persecutory conduct is actual harm that will be inflicted in the future. They emphasised that the threat of harm is relevant to the consideration of a claim such as the present ( Appellant S395 216 CLR at 490 [43]). 33 The tribunal should have addressed whether the appellant had changed or modified his interest in seeking justice for his friend or protesting against the government's conduct because of the persecutory consequences which the tribunal had found the appellant had actually suffered. This was relevant to whether the threat of further persecution gave rise to a well-founded fear in the appellant that he would be persecuted for reasons of political opinion on his return to China if he felt himself free to or did express the opinions he had previously expressed. 34 The tribunal simply assumed that the appellant's apparent disinterest in continuing to express the opinion which led to his arrest and mistreatment would mean he would not be at risk of further harm for a Convention reason. In ordinary aspects of human life, where people suffer a severe consequence for particular conduct, they do not usually repeat the conduct. One of the matters which courts take into account in sentencing offenders is deterrence; that is, the effects which the sentence or punishment inflicted is likely to have on the offender's propensity to re-offend and on others who, seeing or learning of the sentence, may assess their chance of suffering a similar fate as condign punishment. The aphorism, 'once bitten twice shy' has an obvious application to an experience of the kind the tribunal found the appellant to have had. 38 In Appellant S395 216 CLR at 491-492 [48] McHugh and Kirby JJ described Win [2001] FCA 132 as recognising that it was no answer to a claim for refugee status that the applicant took steps to hide political opinions and activities where the applicant claimed he or she would be persecuted for those opinions and activities. 42 But as McHugh and Kirby JJ emphasised in Appellant S395 216 CLR at 490-491 [43], to determine the issue of real chance without determining whether the applicant's modified conduct was influenced by the threat of harm '... is to fail to consider that issue properly'. 44 But here, the facts which the appellant claimed had occurred to him required the tribunal to consider what would occur in the future if he were to return to China. The tribunal erred because it limited its consideration of this question too narrowly. It failed to ask itself whether its findings as to what had happened to the appellant in China indicated that his lack of political activity, after he eventually signed his confession, was because he feared that expressing his opinions would subject him to further persecution. The tribunal's failure to enquire into this question was a constructive failure to exercise its jurisdiction: Appellant S395 216 CLR at 493-494 [53] [54] per McHugh and Kirby JJ, 503 [88] per Gummow and Hayne JJ. 45 Gummow and Hayne JJ said, in Appellant S395 216 CLR at 503 [88], that the tribunal there had been diverted from addressing the fundamental question of whether there was a well-founded fear of persecution because it had only considered whether the applicants were likely to live as a homosexual couple in a way that would not attract adverse attention. They held that the tribunal should have asked the fundamental question whether the applicants would live 'discreetly' '... because that was the way in which they would hope to avoid persecution'. They held that the tribunal there either did not apply correctly the law to the facts it found or its decision involved an incorrect interpretation of the law: Appellant S395 216 CLR at 503 [89]. Here, the fundamental question was whether the appellant had a well-founded fear of persecution in circumstances where the tribunal had found as a fact that he had been severely mistreated for Convention reasons. The tribunal needed to address, in light of its finding, whether he would have feared in the future to express his political opinions, or abstained from doing so, were he returned to China because in that way he would hope to avoid persecution. 46 As I have found, the original claim for a protection visa raised such a claim sufficiently for the purpose of requiring the tribunal to consider it. The appellant's disinterest in political expression after 2003 is highly likely to have arisen because of his well-founded fear of expressing any further political opinion based on his persecution in 2003, which the tribunal found he had suffered for having expressed it. 47 The tribunal was obliged to consider the appellant's claim for a protection visa by asking whether the appellant's disinterest in expressing his political opinion, since being forced to sign his confession in late 2003, was a way in which he hoped to avoid persecution. The tribunal committed a jurisdictional error by failing to do so.