Case: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: applied
The tribunal dismissed the canal incident because that incident did not result in serious harm but it never considered whether such an attack, by many persons of one faith in company who were hostile to the appellant's religious behaviour and political opinion and or membership of a social group, gave rise to a 'well founded fear'. Instead the tribunal asserted, without identifying a basis that there was nothing to suggest that there would be a risk of this behaviour being repeated in the future because, so it said, the appellant would not employ a Christian and could modify his use of language to avoid the word 'jihad' in campaigning against drug trafficking. This assertion was misconceived. As McHugh and Kirby JJ said in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at 490-491 [43] - [44] ; and see too per Gummow and Hayne JJ at 501-502 [82]-[83]: '[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. [44] Subject to the law, each person is free to associate with any other person and to act as he or she pleases, however much other individuals or groups may disapprove of that person's associations or particular mode of life. This is the underlying assumption of the rule of law.' 66 I am of opinion that the tribunal misconceived the question which it was required to address on the review under s 414(1) of the Act. It dismissed the appellant's claims of a well-founded fear by making mere assertions that, although he complied with the banishment imposed by the Jirga, the chance was remote that they might subject him or his family who remain in Peshawar to harm in the foreseeable future and that a physical assault on him by a large group in company was not persecution because he was not seriously hurt. 67 These assertions were unreasoned and unsupported because they ignored objective facts found and did not deal with the apparently credible newspaper articles which supported the claims. If the tribunal meant to say that because the appellant will accept his banishment he can have no fear, that involved the very mistake of which McHugh and Kirby JJ wrote (216 CLR at 490 [43]. 68 I have not overlooked that the issue of whether the appellant could relocate within Pakistan, which was also before the tribunal. However, that issue could arise only after a determination that he had a reason to relocate. The tribunal committed a jurisdictional error in dealing with the claims of the appellant. 69 And, in reaching its conclusion that the appellant could relocate to Karachi where he could live safely, the tribunal, first, considered in a jurisdictionally erroneous manner only his claim relating to the tribal and religious leaders of Khyber Agency and, secondly, said it had taken into account all of the evidence. In other words, the tribunal did not assess the claims based on the appellant being free to act in Karachi, as he would have acted without modifying his behaviour to eschew the realization of his fears. Hence, in the penultimate paragraph of its reasons when dealing with the canal attack, the tribunal's approach as described above, was to deal with the claim by reference to its (unfounded) anticipation that the appellant would modify his behaviour. That approach evinced the very error exposed in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at 490-491 [43] - [44] , 501-502 [82]-[83]. 70 I am satisfied, for the reasons above, that the tribunal misconceived its task in assessing whether the appellant had a well-founded fear of persecution for one or more Convention reasons and that it did not have a good reason for rejecting those claims. That is not to say that on a rehearing the tribunal might not come to the same decision but, if it does, it must do so according to law. 71 At the hearing on 19 April 2006, I gave leave to the Minister to file and serve a note indicating: (a) what documents in the appeal book had been given to the tribunal by the appellant and which the tribunal had obtained from other sources and when each document had been received by the tribunal; (b) what further authorities the Minister relied on arising out of the course of argument at the hearing. I also gave leave to the appellant to respond to what the Minister served. On 27 April 2006 the Minister filed a supplementary submission referring to the affidavit to be filed relating to the documents and giving case references.