WAHY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 76 (11 February 2004)

Last Updated: 13 February 2004

FEDERAL COURT OF AUSTRALIA

WAHY v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 76

MIGRATION – judicial review – protection visa – Refugee Review Tribunal – whether jurisdictional error – whether failure to construe visa grant criterion - ‘well-founded fear of persecution’ – whether real chance test applied or balance of probabilities – whether failure to consider claim – appeal dismissed


Migration Act 1958 (Cth)



Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24 cited
Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168; (2003) 200 ALR 359 cited







WAHY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W103 OF 2003


FRENCH J
11 FEBRUARY 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W103 OF 2003

BETWEEN:	WAHY APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	11 FEBRUARY 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.





Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W103 OF 2003

BETWEEN:	WAHY APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	11 FEBRUARY 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1 The appellant is a national of Afghanistan of Hazara ethnicity and is an adherent to the Shiite religion. He came to Australia without lawful authority on 16 August 2001 and on 11 September 2001 made application for a protection visa to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). That application was refused by a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs on 23 April 2002. On 24 April 2002 the appellant applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision. The Tribunal affirmed the decision not to grant a protection visa on 26 June 2002. On 11 July 2002 the appellant applied to this Court for an order for review of the Tribunal’s decision. His application was remitted to the Federal Magistrates Court and on 17 April 2003 his Honour Raphael FM dismissed the application for review with costs. The appellant filed a notice of appeal against that decision on 7 May 2003. On 14 July 2003 the Chief Justice directed that the appeal be heard and determined by a single judge pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth). The appeal came on for hearing on 22 December 2003.

The Appellant’s Claims

2 In a statement, under the letterhead of his migration agents, and lodged in support of his protection visa application, the appellant said he was born on 31 December 1977 in New Quol, Waras, Bamian in Afghanistan. He lived his whole life in New Quol. He studied for four years in a mosque and worked on his father’s farm. He was married but has no children. His wife remains in Afghanistan. He is Hazara and his religion is Muslim Shiite.

3 Under the heading ‘Why I left my country’, the appellant complained of Taliban attacks upon his village in which one of his brothers was killed. He was warned by his father that he also could be killed. His father arranged for a people smuggler to take him out of Afghanistan and gave him money to pay for the smuggler. He travelled from Afghanistan into Pakistan where he obtained a passport, travelled to Indonesia and eventually to Australia. He said that if he went back to Afghanistan he would be killed by the Taliban. They would kill him like they had killed both his brothers because he is Hazara and a Shiite. He did not believe that there would be any protection for him if he returned.

4 On 18 January 2002, an officer of DIMIA wrote to the appellant referring to changes in Afghanistan connected with the fall of the Taliban regime. It was put to the appellant in the letter that he might wish to consider whether he wanted to return home or to another place where he might have a right of residence, or whether he wanted to continue with his application. He was given an opportunity to provide further information to support his claims for a protection visa.

5 On 2 February 2002, the appellant made a supplementary statement, again under his migration agent’s letterhead. In that statement he said that, according to news he had heard, there was still much conflict within the new government in Afghanistan. There was instability in the country and conflict between the Chairman of the interim government, Hamid Karzai and his defence minister. There was no security. The ABC news had reported a recent conflict south of Kabul between two commanders in which about 50 people were killed. There was a fight between two groups in Kunduz the previous week in which 13 people were killed. He had left Afghanistan to escape the oppression and took risks to get away. He posed the rhetorical question, how many people were being killed in the other provinces? He did not trust the new government. One of the warlords had said that if the ex-King, Zahir Shah returned, he would not accept him. He referred to the possible return of Shah after six months. When Shah had been in power 30 years earlier he had oppressed the Hazara minority.

6 The appellant referred to his Hazara ethnicity and the fact that Hazaras had been discriminated against for the past century. He said that the Taliban still retained a lot of power. Although seven previously high ranking ministers and commanders of the Taliban had been captured in Kandahar, the governor of Kandahar had released them back into the community. Again he posed a rhetorical question, if Taliban did not have any influence right now, how could they have secured the release of these ministers? He referred to Pashtuns who called themselves Taliban, whereas previously they had only called themselves Pashtuns. The Pashtuns, he said, are against the Hazara, and against the Uzbek and Tajik. The Taliban were Pashtuns who had just changed their name.

7 The appellant said there was general instability in Afghanistan and suggested that it would probably take about ten years at least for peace and security to return. He maintained that if he were returned to Afghanistan he would continue to be persecuted and his life threatened because of his ethnic and religious background.

8 In a written submission to the Tribunal, the appellant’s migration agents restated that in spite of the apparent demise of the Taliban regime, the appellant feared that he would be killed if he returned to Afghanistan. They referred then to the meaning of the word ‘persecution’ in the Refugees Convention and the operation of s 91R of the Migration Act 1958 (Cth). They submitted that the appellant’s claimed harm, if he were returned to Afghanistan, was sufficiently grave to constitute persecution. They asserted that his initial claims and his statements in the course of interviews with an officer of DIMIA indicted a fear of persecution by reason of his race and religion.

9 In elaboration of the appellant’s concerns, his agents submitted to the Tribunal:

‘The applicant instructs that he fears persecution at the hand of Pashtun Afghan’s (sic) in his area who were associated with the Taliban. The applicant fears that many of the same people remain in Afghanistan, and fears persecution at their hands. It is submitted that the reason for the applicant’s fear is his race, as a Hazara.

The applicant also instructs that he fears persecution at the hands of other ethnic factions within Afghanistan because he is a Hazara. The applicant instructs that many of the people currently holding power in Afghanistan have been responsible for the persecution of Hazara’s (sic) in the past, and fears persecution at their hands for reason of his race.’

The submission contended that the appellant feared persecution in Afghanistan because of his Shiite Muslim religion. An outline of his claims previously made was repeated. Reference was also made to the Taliban presence and to newspaper reports that they remained a presence, albeit in the background, in Afghanistan. It was submitted that given the delicacy of the current situation in Afghanistan and the reported presence of Taliban leaders and supporters in and outside that country, the appellant’s fear of persecution was well-founded. It was submitted that there was ‘a real chance’ that he would suffer persecution at the hands of those formerly associated with the Taliban due to his race and religion.

10 Mention was made of the Northern Alliance which was described as a confederation of various militia groups made up of persons of Tajik, Uzbek and Hazara ethnicity. Evidence of human rights abuses by the Northern Alliance and tension within the Alliance was cited. The appellant was said to have instructed that he fears persecution at the hands of powerful members of the current administration and that he would not be protected by those persons associated with the Mujahideen who had recently returned to power in Afghanistan. Evidence was cited of the persecution of persons of Hazara ethnicity, not only under the Taliban regime but also at the hands of other regimes in Afghanistan.

11 The persecution of Shiite Muslims was mentioned and the ongoing instability in Afghanistan. A transcript of a report on Afghanistan from a television program, Dateline, of March 27, 2002, was quoted. The transcript recorded an interview with George Gittoes, an Australian war artist who had recently returned from Afghanistan. He referred to insecurity in the country and abuses by the Northern Alliance forces directed at the Pashtun community. He referred to the risk of civil war in Afghanistan. The submission then quoted an extract from a recent report on CBS News of 25 February 2002 in which it was said:

‘Already there have been reports of bitter fighting in northern Afghanistan between armies loyal to Uzbek warlord Rashid Dostum and former commander Atta Mohammed as well as in central Bamiyan province between rival groups.’

The inability of government to protect citizens was asserted.

12 On the question of relocation, it was said that relocation of the appellant within Afghanistan would not be safe or reasonable within the present circumstances.

13 A further handwritten statement in support of the application for review before the Tribunal was submitted on 23 May 2002. In that statement the appellant made additional reference to his fear of members of the Wahdat Party which fought the Taliban during the war. He said that many provincial leaders had come from the Mujahideen and joined the Taliban when the Taliban came to power. They had subsequently supported the interim government after the fall of the Taliban. He then said:

‘When the Government of Najeeb ALLAH fall down in the hands of Moujahedain, the Hazara people were under attacks from the ‘Sunni’ Bashto and Tajeek, and as I have mentioned previously, there were many massacres in the Afshar, and confiscated in Bamyan, against Hazara. In that time Bamyan was under control of AL WAHDAH party, and others Shai’t parties. Those parties they were coming to my village to take young men and anybody how can carry weapon, to the training camps, to used them against groups, or war, even if there is no battel or war. (sic)

My family were under extream fear from the party will come and take one member of family frorcely; exscusing that they are definding us and protect us from the opperssion and the enime of Hazara. My family they were paying money to some well know people to the party. At that time Abdul Kharlme Khalil one of the AL WAHDAH members, which force my family and village to send the young men to the front line, by helping from a small leader like Shakh Ahkbary and others, before Shakh Ahkbary spilet from AL WAHDAH party, and joined Taliban, by attacking the party after Taliban tack over the Bamyan State.’ (sic)

14 The appellant expressed ‘extream (sic) fear’ of returning to Afghanistan with ongoing discrimination and retribution between ethnic groups and parties. He claimed that enemies of the Hazara were waiting for the Americans to leave to begin another cycle of bloodshed against the Shiite people. Further on in the statement he rejected the suggestion that there was no more fighting in the Bamian Province. He relied upon a statement from the BBC that its reporters were not allowed to go anywhere in Afghanistan to report.

15 In its reasons for decision the Tribunal set out the appellant’s claims and referred to oral evidence in which he said that he accepted that Karim Khalili, the Shiite and Hazara Governor of Bamian Province, had been made a Vice-President of the new Afghanistan government and would represent Hazara interests. He said that he still had a problem if he were to return to Afghanistan. He had nobody there. Two of his brothers had been killed by the Taliban, another had disappeared four years before and there had been no news of his parents or his sister. He would not be able to support himself.

16 The appellant told the Tribunal that he feared to return to the Waras area as Sheik Akbari had been fighting factions of the Hezb-e-Wahdat party there. Asked which faction he had supported, the appellant said he had not taken sides. Asked why he would then be in danger, he replied that Sheik Akbari had escaped from the area and that he might be accused of treason by the Hezb-e-Wahdat party. Asked why this would be, he said it was because the Waras area had supported Akbari during the Taliban time. The Tribunal referred him to independent evidence that the Akbari faction of the Hezb-e-Wahdat party was a constituent part of the current administration. However the appellant said that as an ordinary person he might be forced to be absorbed into the Hezb-e-Wahdat ranks or otherwise be accused of treason.

17 The appellant also told the Tribunal that his wife had rejected a commander in the Hezb-e-Wahdat party when she had married him and the appellant was frightened of that person who might want to harm him because of that.

The Tribunal’s Reasons for Decision

18 The Tribunal outlined the appellant’s claims at some length and referred extensively to independent country information. In particular, it referred to a report prepared for the UN Coordinator’s Office in March 2000 in which it was said that the Waras district was the most secure district in the Hazarjat in 1999 due to the changing politics and the exit of Khalili faction.

19 The Tribunal referred to estimates that Bamian Province was 67% Hazara and reports that it is now firmly under the control of Khalili and the Hezb-e-Wahdat and that although official figures were not available, hundreds of Hazaras had returned to the Province since the collapse of the Taliban regime in November 2001. It referred to a report that the Akbari faction had rejoined the Northern Alliance after the fall of Kabul and its present leader, Hajji Mohammad Mohaqqeq is a minister in the interim government.

20 The Tribunal cited advice from the Department of Foreign Affairs and Trade that Afghans from various ethnic groups in the country were generally able to traverse areas where other groups were in the majority. Although many parts of Afghanistan were insecure, the level of lawlessness applied generally rather than to any ethnic minority traversing the territory. Returnees would face less suspicion and harassment by resettling in areas in which they found an ethnic majority. The potential for harassment would be drastically decreased if they had family or property ties to the area of resettlement.

21 The Tribunal cited information about the Akbari faction of the Hezb-e-Wahdat party. It said that although Sheik Akbari had forged an alliance with the Taliban after the fall of Bamian in 1998, his faction of the Wahdat party was a constituent part of the current administration in Afghanistan. Its leader, Mohaqqeq, was a minister in the interim government. The Tribunal had found no reports of Hazaras in Bamian Province being killed by reason of their perceived association with, or opposition to, Akbari.

22 The Tribunal found that the appellant was a citizen of Afghanistan, of Hazara ethnicity and a member of the Shiite religion. It found that he came from the Waras region of Bamian Province, an area dominated by Hazara people. It accepted his claims of great fear of the Taliban and of Pashtuns associated with the Taliban by reason of their oppressive treatment of Hazara people. The Tribunal had no reason to doubt that the appellant and his family had suffered at the hands of the Taliban and of the Pashtuns in the manner he claimed. The Tribunal found, and it was not disputed by the appellant, that Bamian Province is now firmly in the hands of Hazara forces under the command of Khalili, the Hazara governor of Bamian who has been appointed one of the country’s Vice-Presidents. In light of these findings the Tribunal held that the appellant no longer had a well-founded fear of persecution from the Taliban by reason of his race or religion.

23 The Tribunal accepted the appellant’s claims that he had played no political role in any conflict between Sheik Akbari and the Hezb-e-Wahdat party. Absent any evidence of continuing conflict between factions of that party, his fear that he might be harmed because of a perceived association with Akbari because of the strong support Akbari had in Waras, was unfounded.

24 The Tribunal accepted that the appellant had legitimate concerns about the lack of family support and material resources should he return to Afghanistan. These matters, however, were not covered by the Convention and could not form the basis of the grant of a protection visa.

The Reasons for Decision of the Federal Magistrate

25 The appellant was unrepresented before the learned federal magistrate. As his Honour put it in his reasons for decision, the appellant based his claim for asylum on four contentions:

1. His great and continuing fear of the Pashtun people in Afghanistan who he believed continued to mistreat Hazara people notwithstanding the defeat of the Taliban and the emergence of the interim government.
2. The appellant’s imputed association with Sheik Akbari.
3. The appellant’s fear of harm from a local commander in the Wahdat forces who was a rival for his wife’s hand.
4. The dangers that the appellant would face if he returned to Afghanistan in the absence of any family or other support for him there.

26 At the hearing in the Federal Magistrates Court the appellant concentrated on a complaint that he had raised in his application that the Tribunal did not give him time to articulate his case. The whole process in the Tribunal had taken about half an hour, of which ten minutes was involved with introductions and explanation of the law. The Tribunal had produced its finding in two days. The magistrate characterised these complaints as complaints of want of procedural fairness and prejudgment by the Tribunal.

27 His Honour adjourned the hearing in order to listen to the tapes of the proceedings before the Tribunal. The matter came on for hearing again on 11 April 2003. His Honour accepted that the Tribunal hearing was short. It had lasted approximately 29 minutes, part of which was taken up with introductions. The extent of the communication from the appellant to the Tribunal was limited because it was done through an interpreter. However having listened to the tape, his Honour did not believe that the Tribunal was hurrying the appellant or denying him an opportunity to be heard. At the end of the hearing it asked him whether he wished to say any more. The appellant had said only that he wished for a speedy result. His Honour observed that he received a speedy result from the Tribunal and was complaining about it.

28 At the adjourned hearing in the Federal Magistrates Court, the appellant repeated his incomprehension that the Tribunal could conclude that it was safe for him to return to Afghanistan. His Honour was sympathetic to the appellant’s puzzlement. Indeed, he went so far as to refer to an ABC radio program which he had listened to in which it was said to be notorious that the writ of President Karzai extended no further than Kabul. However, the Tribunal had relied upon its country information to come to a different view and if it were mistaken it was a mistake within jurisdiction and not one which could be the subject of review.

29 The learned magistrate concluded that it was open to the Tribunal on the material before it to come to the conclusion that the appellant did not have a well-founded fear of persecution for a Convention reason. In the circumstances of the case his Honour was unable to determine any failure by the Tribunal to comply with the statutory requirement nor any excess by it of any express or implied limitation. It had assessed the integers of the appellant’s claim ultimately coming to the conclusion that he did not have a well-founded fear for Convention reasons and was not a person to whom Australia owed protection. There was no denial of procedural fairness or natural justice so fundamental as to put the decision of the Tribunal outside the confines of s 474.

The Grounds of Appeal

30 The appellant was represented by pro bono counsel upon the hearing of the appeal. Amended grounds of appeal were filed in Court. The grounds of appeal were as follows:

‘1. Raphael FM erred in law in not finding that the refugee review tribunal (‘tribunal’) made a jurisdictional error in that it misapplied the "real chance" test to the appellant’s claim to fear persecution on the basis of perceived political opinion.

Particulars
a. In considering the ultimate question (namely whether it was satisfied that the applicant is a person to whom Australia has protection obligations by reason of his having a well-founded fear of persecution for Convention reasons) the tribunal was obliged to consider whether there was a possibility that the appellant faced a real chance of serious harm.

b. The appellant claimed to fear persecution by the Khalili faction of the Hezbe-I-Wahdat on the basis of perceived political opinion, because of his association with the Akbari faction. Implicitly, the appellant claimed that the Afghanistan government could not protect him from this persecution.

c. The tribunal found that:

i. the leader of the Akbari faction had been a member of the Afghanistan administration;
ii. many refugees and others were returning to Afghanistan;
iii. a French Charity had been working in Bamian since 1999;
iv. there was no evidence of Hazaras being killed in Bamian province;
v. there was no evidence of continuing factional conflict between the Khalili and Sheikh Akbari factions;

d. However, the tribunal did not consider the possibility that conflict between the Khalili and Sheikh Akbari factions was continuing and accordingly, the tribunal did not consider the possibility of serious harm arising from continuing inter-factional conflicts.

e. The language and approach of the tribunal leads to an inference that it failed to apply "real chance" test to the facts it found, but instead applied a standard of the balance of probabilities in deciding the level of risk of persecution of the appellant.

f. The tribunal failed to consider whether there was a real chance of persecution on the basis of past persecution.

g. The tribunal took into account irrelevant considerations in considering whether the appellant faced a real chance of serious harm.

2. Raphael FM erred in law in not finding that the refugee review tribunal (‘tribunal’) made a jurisdictional error in that it failed to consider a claim made by the appellant.

Particulars

a. The appellant made a claim to the effect that he would not be protected, even if those in power were safe.

b. The tribunal considered membership of the interim government of Afghanistan and made an erroneous conclusion that this meant that Waras, Bamian was safe for the appellant.

c. The tribunal failed to consider the specific danger to this appellant.’

Statutory Framework

31 Section 36 of the Migration Act provides for the class of visas known as protection visas. It establishes as a criterion for a protection visa that the applicant for the visa is:

‘(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol...’ (s 36(2)(a))

32 The relevant protection obligation is defined in Art 33 of the Convention Relating to the Status of Refugees:

‘1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’

33 This is to be read in light of the definition of ‘refugee’ in Art 1A of the Convention which, as amended, applies to a person who:

‘... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’

34 The term ‘well-founded fear of persecution’ as imported into the content of the protection obligation in Art 33, by way of the definition of ‘refugee’ in Art 1A, is affected by the provisions of s 91R of the Act. That section provides, inter alia:

‘91R(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.

(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.’

Subsection 91R(3) which relates to refugees sur place is not relevant for present purposes.

35 Also forming part of the statutory framework is the privative clause, s 474 of the Migration Act. It is not necessary to set out its provisions here save to note that it has the effect, in its application to the Tribunal, that a Tribunal decision may only be set aside on judicial review for jurisdictional error – Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24.

Failure to Apply the Real Chance Test – Ground 1

36 Misconstruction by the Tribunal of a criterion for the grant of a visa may amount to jurisdictional error by virtue of the provisions of s 65 of the Migration Act- Lobo v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 168; (2003) 200 ALR 359 at 375-376 ([58] – [62]). Counsel for the appellant submitted that the Tribunal had committed such an error in this case. It had failed to identify and apply the proper legal test for a ‘well-founded fear of persecution’. It was said that the Tribunal failed properly to construe what constitutes persecution for the purposes of Art 1A of the Convention when read with s 91R of the Act. Counsel identified two aspects of this error.

37 The first aspect of the alleged error, according to the view attributed to the Tribunal, was that it was necessary, in order to support the appellant’s claim, that there be evidence of ‘Hazaras in Bamian Province being killed by reason of their perceived association with, or opposition to Akbari’. It was submitted, in effect, that the Tribunal’s approach was too narrow and that the correct test for the existence of a ‘well-founded fear of persecution’, in context, was not whether there was a well-founded fear of being killed based on past killings, but whether there was a well-founded fear of persecution on Convention grounds, as limited by s 91R. The appellant was said to have a fear of persecution arising out of forced recruitment or the laying of persecutory treason charges against him. Those claims, it was said, were not properly considered by the Tribunal, if considered at all.

38 In fact, the Tribunal said nothing to indicate that, to be satisfied of a well-founded fear of persecution, it required evidence of Hazaras in Bamian Province being killed by reason of their perceived association with or opposition to Akbari. The Tribunal concluded that, in light of the absence of evidence of any impending conflict between Hezb-e-Wahdat party factions, the appellant’s fear of harm because of a perceived connection with Akbari was unfounded. That finding was sufficient to exclude his asserted fear of forced recruitment and persecutory treason charges having regard to the context in which they were raised. The Tribunal had referred exhaustively to country information relating to the concerns raised by the appellant. Its findings were inconsistent with the contention that it failed to consider the possibility of some harm arising from continuing inter-factional conflicts.

39 The second aspect of the jurisdictional error asserted against the Tribunal under the first ground of appeal was that the Tribunal allegedly took a wrong approach to the standard of proof necessary to show the existence of a well-founded fear of persecution. It was said to have applied a balance of probabilities approach to the risk of apprehended harm. So it was said to have failed to ask itself the requisite question – was there a ‘real chance’ of the apprehended harm? There is nothing in the Tribunal’s reasons to support the proposition that it applied a balance of probabilities rather than a ‘real chance’ test. In its recitation of the relevant legal principles at the commencement of its reasons, the Tribunal expressly referred to the ‘real chance’ test for determining whether there is a well-founded fear of persecution. It said:

‘A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.’

The second aspect of the error attributed to the Tribunal under the first ground of appeal is without substance.

Failure to Consider a Claim – Ground 2

40 The second ground of appeal revisited the first under the heading of ‘Jurisdictional Error’ which was said to arise out of its failure to consider a claim advanced by the appellant. This seems to have been a complaint that the Tribunal did not give any or any adequate consideration to specific dangers which might have faced the appellant if returned to his home province. It was no part of the Tribunal’s function to inflate the appellant’s case and to construct a fear of specific danger upon out of it. Failure to consider a specific claim, which is of importance to an applicant’s case, may amount to a failure to review the decision the subject of the application. In this case, however, no such failure was shown. The Tribunal’s findings negated the claim relied upon

Conclusion

41 Both grounds of appeal fail. The appeal will be dismissed with costs.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated: 11 February 2004

Counsel for the Appellant:	Ms G Costello (pro bono)
Counsel for the Respondent:	Mr J Allanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 December 2003
Date of Judgment:	11 February 2004