Case: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2004) 216 CLR 473
Outcome: applied
The appellant contended that, by virtue of the way it dealt with the behaviour modification claim, the Tribunal's decision is marred by jurisdictional error: the Tribunal asked itself the wrong question, and as a result it failed to consider the appellant's claim properly: see generally Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 (' Plaintiff S157 '); and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2004) 216 CLR 473 (' Appellant S395/2002 '). For similar reasons, the appellant contended that Phipps FM erred in law. The appellant seeks orders that the Tribunal's decision be quashed and that the Tribunal be directed to decide the appellant's application for a protection visa according to law. 21 The appellant submitted that the Tribunal made jurisdictional errors of the kind described in Appellant S395/2002 . His counsel submitted that the applicable principles were summarised by the Full Court (Sundberg, Marshall and North JJ) in Minister for Immigration and Multicultural and Indigenous Affairs v VWBA [2005] FCAFC 175 (' VWBA' ), where Sundberg and North JJ said at [6] that Appellant S395/2002 stands for three propositions (references omitted): '(a) The Tribunal will err 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. The Tribunal's task is to assess what the applicant will do, not what he or she should do. (b) If the Tribunal finds that a person will act in a way that will reduce a risk of persecution that would otherwise have been well-founded, the Tribunal must consider why the person will act in that way. If it fails to do so, it commits a jurisdictional error. (c) The Tribunal will err if, having found that a person will act in a way that will reduce a risk of persecution, it does not go on to consider whether the person nevertheless has a well-founded fear of persecution because, despite the conduct that reduces the risk, there is still a real risk that the person will be persecuted.' 32 In Appellant S395/2002 , the High Court considered the obligation of the Tribunal to consider a behaviour modification claim that had not been specifically articulated by the applicant. McHugh and Kirby JJ said at 488-489 [39]: 'On a number of occasions this Court has said that proceedings before the Tribunal are inquisitorial in nature. The arguments and evidence of applicants or the Minister cannot narrow the Tribunal's jurisdiction to investigate the generality of a claim for a protection visa. Whatever the arguments or evidence of an applicant, the Tribunal is entitled, but not bound, to look at the issue generally. If the Tribunal elects to exercise its jurisdiction more widely than the applicant or the Minister has asked, however, it must do so in accordance with law. Given that the appellants claimed that Bangladesh was "not a safe place for [them] at all" and that they had a "real fear of persecution", the Tribunal was entitled to go beyond examining whether the appellants faced persecution because of their personal history. Notwithstanding that it rejected the particular claims of the appellants, it was entitled to investigate the matter more fully and determine whether the appellants' more general fear of persecution was well-founded. Rejection of an applicant's specific claims of persecution and the failure to identify other forms of harm provide a reason for holding that the applicant had no fear of persecution. But that is all. In the present case, for example, although the appellants did not raise any issue of modifying their behaviour because they feared persecution, 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.' 33 It is clear from a reading of the judgment in Appellant S395/2002 that a behaviour modification claim had not been expressly raised before the Tribunal in that case. Nonetheless, the majority held that the Tribunal had fallen into jurisdictional error by not properly considering a behaviour modification claim that emerged from the evidence or the Tribunal's evaluation of that evidence. McHugh and Kirby JJ held that the Tribunal itself had opened up the issue by its examination of the general issue of homosexuality and persecution in Bangladesh, and by its specific finding that the appellants would not be persecuted if they acted discreetly in the future: at 488-489 [38]-[39] and at 493 [53]. 36 The dissenting judgments in Appellant S395/2002 confirm that the appellants in that case had not expressly raised a behaviour modification claim before the Tribunal. Gleeson CJ said at 481-482 [12]: 'It was never part of the claim advanced by the appellants to the Tribunal that the persecution they had experienced in the past, and apprehended in future, took the form of repression of behaviour about which they desired to be more open, and that they escaped harm only by concealing their relationship. If such a claim had been made, it would have raised factual and legal questions beyond the scope of the case put to the Tribunal.' In his Honour's view, the appellants' argument that the Tribunal had not properly addressed the behaviour modification issue took the Tribunal's reference to discreet behaviour entirely out of context. 37 The other dissentients, Callinan and Heydon JJ, expressed similar views in their joint judgment at 513-514 [113]: '... In large measure they were not believed. If they had wished to, the appellants could have advanced a claim that their decision to live as they had been living and would live on their return to Bangladesh was influenced by a fear of harm if they did not; or that persons for whom the government of Bangladesh is responsible induce or inculcate a fear of harm in those living openly as homosexuals; or that they are at risk of suffering serious harm constituting persecution if they wished to display, or inadvertently disclosed, their sexuality or relationship to other people. They did not advance any claims of this kind beyond those connected with the factual accounts advanced by them to the Tribunal and rejected in large measure by the Tribunal. The Tribunal accordingly did not err in not dealing with them.' 38 In my view, it is a natural consequence of the inquisitorial process, to paraphrase Merkel J, that the Tribunal must consider the case that arises from the evidence before it, regardless of how that case is specifically put by the applicant. While the authorities make it clear that the Tribunal is not required to make the applicant's case, it is bound to consider a case on a basis not articulated by the applicant if it is raised by the evidentiary material that is before the Tribunal or by the Tribunal's findings based on that evidence. It is a not an obligation that can be discharged simply by reference to the terms in which the applicant articulates his claim. 39 On the authorities, the Tribunal is obliged to consider at least three types of claim: first, those that are explicitly put by the applicant; secondly, those that are implicit in the material before the Tribunal; and thirdly, those that emerge from the Tribunal's findings or conclusions. For the purposes of this case, it is unnecessary to explore the boundaries of the Tribunal's role any further. But it is important to recognise that in each type of case, regardless of what is put by the applicant or the Minister, the Tribunal must ask itself the right question - whether the applicant has a well-founded fear of persecution for a Convention reason. Where the material before the Tribunal, or the Tribunal's own findings or reasoning process, indicates that the applicant has modified or would modify his or her behaviour if returned to the country of citizenship, the question must be asked why the applicant would do so: see Appellant S395/2002 , esp per McHugh and Kirby JJ at 489 [39] and per Callinan and Heydon JJ at 503 [88]. 40 The appellant's claim was based on evidence that he was involved in anti-government activities in Burma, albeit at a level that probably would not have generated significant government attention aside from the specific incidents mentioned. It was also based on evidence that he has been significantly involved in such activities in Australia. This evidence was accepted by the Tribunal. The Tribunal also accepted evidence to the effect that the Burmese Embassy in Canberra was interested in its citizens in Australia, and it was possible that the appellant's activities in Australia might have been recorded by Burmese officials. Further, the Tribunal accepted evidence that the appellant may be questioned about his activities in Australia on his return to Burma, and that he could be watched for a period after returning. However, it did not accept that this kind of surveillance amounted to persecution. Specifically, the Tribunal considered that the appellant's anti-government activities, both in Burma and subsequently in Australia, would not have the consequence that Burmese authorities would regard him as a significant or high profile activist. The Tribunal accepted general country advice from DFAT which it interpreted to mean that only 'active and high profile' demonstrators would be targeted, and perhaps persecuted, by the authorities on their return to Burma. 41 The Tribunal found that the appellant would not face persecution on return to Burma because it was satisfied that the appellant, who knows and understands the political situation there and who does not have a record of consistent political activity in Burma, will not act in such a way as to bring himself to the adverse attention of those authorities. In my view, as the appellant submitted, this finding recognises that the appellant had modified his behaviour in the past because of his knowledge of the Burmese political situation and was likely to do so on his return to Burma. It is difficult to reach any other conclusion when one considers the evidence before the Tribunal. The effect of that evidence, which the Tribunal accepted, was that the appellant's activities in Burma, and his activities subsequently in Australia, had brought him to the adverse attention of Burmese authorities. 47 See also McHugh J at 8-10 [27]-[31] and 11-12 [38]-[39], and Kirby J at 16 [58]-[59]. In order to decide this appeal, however, it is not necessary for me to say anything further about this issue. 48 The conclusion I have reached is that the Tribunal raised the issue of whether the appellant had modified his behaviour to avoid persecution, and indeed implicitly recognised that he had done so. Accordingly, it was obliged to specifically address the merits of that claim in its decision. It did not do so. Indeed, the Tribunal did not address the scenario of what will happen to the appellant if he returns to Burma and engages in anti-government activity because it made the assumption that he will not act in that way. 49 There is clear authority that the Tribunal's failure to consider a behaviour modification claim of the kind that arose in this case amounts to jurisdictional error: see Appellant S395/2002 , esp per McHugh and Kirby JJ at 493 [51] and 493 [53], and per Gummow and Hayne JJ at 500 [80] and 503 [88]-[89]; see also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 ; (1999) 90 FCR 287. 50 To address the behaviour modification claim properly, the Tribunal had to address a range of questions. So much is indicated by the following passage from the judgment of McHugh and Kirby JJ in Appellant S395/2002 at 493 [53]: 'The Tribunal's findings on the attitude of Bangladesh society and the statements of the appellants indicate that they were discreet about their relationship only because they feared that otherwise they would be subjected to the kinds of discrimination of which Mr Khan spoke. If the Tribunal had found that this fear had caused them to be discreet in the past, it would have been necessary for the Tribunal then to consider whether their fear of harm was well-founded and amounted to persecution. That would have required the Tribunal to consider what might happen to the appellants in Bangladesh if they lived openly as a homosexual couple. Would they have suffered physical abuse, discrimination in employment, expulsion from their communities or violence or blackmail at the hands of police and others, as Mr Khan suggested were possibilities? These were the sorts of questions that the Tribunal was bound to consider if it found that the appellants' "discreet" behaviour in the past was the result of fear of what would happen to them if they lived openly as homosexuals. Because the Tribunal assumed that it is reasonable for a homosexual person in Bangladesh to conform to the laws of Bangladesh society, however, the Tribunal disqualified itself from properly considering the appellants' claims that they had a "real fear of persecution" if they were returned to Bangladesh.' 51 The issue is why the appellant would modify his anti-government activities to avoid coming to the attention of the Burmese authorities. More specifically, the critical question is whether the appellant, knowing and understanding the political situation in Burma, would modify his behaviour because that was seen to be a means of avoiding persecution for a Convention reason. In the present case, to borrow and adapt the language used in Appellant S395/2002 , the Tribunal was diverted from addressing the fundamental question of whether the appellant has a well-founded fear of persecution by its conclusion that he was likely to live in Burma in a way that would not attract adverse attention. The Tribunal failed to give proper attention to what might happen to the appellant if he lived 'openly' in Burma, in accordance with his convictions and political beliefs.