Applicant in v 528 of 2000 v Minister for Immigration & Multicultural Affairs

[2002] FCA 1072

FEDERAL COURT OF AUSTRALIA

Applicant in V 528 of 2000 v Minister for Immigration & Multicultural Affairs [2002] FCA 1072

APPLICANT IN V 528 OF 2000   -v-  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 528 of 2000

RYAN J
29 AUGUST 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 528 of 2000

BETWEEN:	APPLICANT IN V 528 OF 2000    Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	RYAN J
DATE OF ORDER:	29 AUGUST 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicant pay the respondent’s costs of the application, including any reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 528 of 2000

BETWEEN:	APPLICANT IN V 528 OF 2000    Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	RYAN J
DATE:	29 AUGUST 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming the refusal of a delegate of the respondent Minister (“the Minister”) to grant the applicant a protection visa.

2. The applicant is a Cambodian national now aged thirty-one who arrived in Australia on 31 October 1997.  He applied for a protection visa on 16 February 1998 and, on that application being refused, applied on 26 March 1998 to the Tribunal to review that refusal.  In its reasons for decision published on 16 June 2000 the Tribunal noted that the applicant had claimed to have been a member since 22 August 1992 of the royalist National United Front for a Neutral, Peaceful, Cooperative, and Independent Cambodia Party (“FUNCINPEC”).  His claims of activity in that connection were summarised by the Tribunal in these terms;

   “He said that he assisted a government minister with office work and that he was also active in other ways such as distributing literature, preparing banners and recruiting new members. During the course of his application the applicant also stated that he was active in promoting human rights and that he observed acts of political violence.

   He claims that after the coup of July 1997 several enquiries were made about him. He said that he lived with friends, away from his own home, to avoid detection. He said that he was later able to depart Cambodia as a friend worked at the airport as an immigration inspector. He added that being in receipt of a student visa to study in Australia also facilitated his departure.

   The applicant claims that FUNCINPEC supporters continue to be victims of political violence and that some are still killed. In support of those claims he submitted three newspaper articles. He claims that Hun Sen is in complete control and that secret agents are used to repress political opposition. He added that news of political violence is suppressed and that much violence which occurs away from the main population centres is never reported.”

3. The Tribunal accepted that the applicant had been a member of FUNCINPEC and had undertaken activities on behalf of a government minister and the party in general in the ways he had claimed.  The Tribunal also accepted that the applicant had promoted human rights and observed some incidents of politically motivated violence.  The Tribunal then made these findings of fact specifically related to the applicant;

   “No actual harm befell the applicant himself before or, indeed, following the coup in early July 1997. The applicant remained in Cambodia for almost a further four months. He retained his passport and was able to depart legally using that passport. The Tribunal does not accept that if the applicant had been of any interest to the authorities he would have been able to depart Cambodia legally. The Tribunal accepts that the applicant’s departure might ultimately have been facilitated by being in possession of a student visa and by having a friend working as an immigration inspector at the airport. By the same token it is apparent that the applicant passed all security checks. He kept his passport and did not come to adverse official attention when making arrangements for his visa, leaving the country or at any other time. In assessing all the relevant material the Tribunal finds that the applicant was able to leave Cambodia legally because he was not of any official interest.

   Available information indicates that even if the applicant were to have been of official interest at the time of his departure that situation would no longer pertain.

   There was a violent coup in July 1997 coup [sic] and other related political violence extending into 1998. It also indicates that the violence gradually dissipated, especially following elections held in 1998. It is apparent from information cited below that FUNCINPEC members and supporters continue to operate openly and influentially as a national political force.”

4. The Tribunal then reviewed a body of “country information” which traced the ebb and flow of political control of Cambodia from the overthrow by the Khmer Rouge of the Lon Nol republic in 1975 to the formation, in late 1998, of a coalition government by the Cambodian Peoples Party (“the CPP”) led by Hun Sen and FUNCINPEC. 

5. Part of the “country information” surveyed by the Tribunal included a report from the Australian Department of Foreign Affairs and Trade (“the DFAT”) dated 15 July 1999 which included this passage;

   “There were a considerable number of reports of politically-motivated harassment and killing during the period surrounding the national election on 26 July 1998, and again in its aftermath when opposition protests were suppressed by the security forces. In essence, it was regarded that pre- election intimidation by CPP-aligned elements (both civilian and military) against opposition party supporters and activists at the local level was widespread. This extended to several reports of political killings of FUNCINPEC and Sam Rainsy party activists in various provinces, and some summary arrests of opposition activists.

   When the post-election pro-opposition demonstrations were suppressed by government security forces in September, many protesters were beaten and arrested, and at least four killed.

   The demonstrations subsequently ceased and CPP and FUNCINPEC finally agreed to form a new coalition government in November 1998. Since that time the political climate has returned to relative normality.

   By February 1999, the Royal Cambodian armed forces (RCAF) had also completed the process of reintegrating former royalist rebel forces (and also defecting Khmer Rouge soldiers) into the RCAF. Royalist commander Nhiek Bun Chhay has been amnestied and returned to a senior political position in Phnom Penh, and the military resistance has officially ended. 

   As a consequence of these developments, COHCHR has indicated that at the present time (March 1999) it is not aware of any retaliation against returnees to Cambodia.  People who were politically active at various levels during the election campaign have been able to return - both from overseas and from Phnom Penh to their villages and communes - without hindrance or harassment.  This included FUNCINPEC-aligned members of the security forces.  So far in 1999, COHCHR has not received any reports of harassment.  It is fairly safe to assume that had such incidents occurred, they would have directly or indirectly come to the office's attention.

   The COHCHR did not rule out the continued existence of a "blacklist'' of persons said to be anti-government and targeted for harassment.  Such a blacklist was rumoured to be in operation in 1998, containing the names of an undisclosed number of opposition figures targeted for persecution.  Even if the list still existed, however, it was not in the government's interests to act against its political opponents now: the new government was seeking to maintain stability and improve its image domestically and internationally, and having won the election, the dominant party was in a position of strength and not feeling threatened. 

   Looking to the future, it is the view of the COHCHR that FUNCINPEC members and supporters are unlikely to be targets for harassment or violence.  FUNCINPEC is now part of the governing coalition and the CPP is genuinely keen to maintain cooperation with its junior partner.

   In addition, it is worth noting that commune-level elections are scheduled to take place, probably in the year 2000.  The ministry of interior has stated that political parties will not be eligible to campaign in the elections (ie that all candidates must stand as independent individuals).  It is our view, however, that it will be all but impossible to keep party politics out of any election process in Cambodia.  In the event of a commune election campaign, it is very possible that the pattern of local-level harassment and violence against opposition candidates and activists which occurred during the 1998 campaign will be repeated, and possibly even intensified.

   In such a situation, as was the case in 1998, it would be mid-level activists rather than high-profile leaders or grassroots members who may have cause for concern.  On past patterns of activity, they may be warned by authorities to desist from their political activities, and if they did not do so, the harassment may intensify, possibly into violence.  I stress that this is a speculative analysis, and such harassment is not presently occurring.  Again, on past indications, even such harassment would generally be unlikely to extend to non-active family members.”

6. The formation in late 1998 of the CPP/FUNCINPEC coalition was also commented upon by the USA Department of State in a report published in March 2000, which concluded;

   “The coalition Government formed in late 1998 between the Cambodian People's Party and FUNCINPEC, the two parties that won the largest number of votes and National Assembly seats in the 1998 election, achieved renewed political stability. The coalition agreement provided for roughly equal power sharing between the parties, with Hun Sen of the CPP as Prime Minister and Prince Ranariddh of FUNCINPEC as President of the National Assembly. The coalition agreement also provided for the creation of a Senate, which was formed in March with Chea Sim of the CPP as President. The Senate's function is to review and provide advice on the laws passed by the National Assembly; the National Assembly retains final authority over whether to modify legislation based upon the Senate's recommendations.

   Although growing in influence, the legislature remained weak in comparison with the executive branch. The coalition Government appointed the provincial governors and their deputies, who generally are divided between the CPP and FUNCINPEC parties, as well as district officials.”

7. After its review of such “country information” as it had collated, the Tribunal concluded;

   “Although it is apparent that there continue to be serious abuses of human rights in Cambodia it is also apparent that citizens do not generally face a prospect of harm by reason of their political opinions, although some political leaders such as “senior Army generals” might face occasional harassment.

   Significantly, a DFAT report, 233/99 of 15 July 1999, remarks that:

   ‘… By February 1999, the Royal Cambodian Armed Forces (RCAF) had also completed the process of reintegrating former Royalist rebel forces (and also defecting Khmer Rouge soldiers) into the RCAF. Royalist commander Nhiek Bun Chhay has been amnestied and returned to a senior political position in Phnom Penh, and the military resistance has officially ended.’

   In support of his claims of continuing political violence the applicant has submitted newspaper articles from the Phnom Penh Post of 9-22 June 2000 and The Cambodia Daily, 8 June 2000. One article refers to the killing of a farmer who was also the ‘Funcinpec candidate for the commune elections’. His wife was also killed. The article contains speculation that the killings were politically motivated and alludes to an investigation into the matter authorized by the provincial governor. A second article refers to the intervention of Hun Sen in certain criminal cases in which the penalties were thought to be too light. A third article refers to the continuing existence of human rights abuses in Cambodia and to certain claims made by the director of the Office of the High Commissioner for Human Rights in Cambodia.

   The Tribunal accepts that there are continuing abuses of human rights in Cambodia and that criminality is rife. There is no material to indicate, however, that persons with the political profile of the applicant face a real chance of persecution. The investigation into the killing of a FUNCINPEC candidate for local election might ultimately reveal a political motivation in that case. Even if that were so, the evidence is overwhelming that, apart from possible rare and isolated incidents, active members and supporters of FUNCINPEC do not now face a real chance of persecution. Nothing in other material submitted by the applicant leads to a different conclusion.

   In assessing all the available material before it the Tribunal concludes that, notwithstanding the continuing existence of random and criminal violence in Cambodia, members of FUNCINPEC with a profile like that of the applicant do not face a real chance of persecution. It is clear that FUNCINPEC members and supporters have openly pursued their political aims and activities in Cambodia in recent years without encountering persecution, except perhaps in rare and isolated incidents. Although a small number of political leaders, including of FUNCINPEC, might encounter occasional harassment the available evidence indicates that members or supporters, even those who were active in the 1993 election campaign and since, do not face a real chance of persecution now or in the foreseeable future.”

8. Accordingly, the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason.

   The applicant’s contentions on review.

9. Mr John Gibson of Counsel for the applicant relied on two grounds as vitiating the Tribunal’s assessment of the applicant’s claim to have a well-founded fear of persecution.  The first contention was that the Tribunal had not properly appreciated that the applicant had been an aide to General Krouch Yoeum, who was said to have been the third highest ranking FUNCINPEC official in the Ministry of Defence and who had been killed during the 1997 coup.  The second contention was that the Tribunal had not addressed the applicant’s discrete claim that he would be denied the right to express his opinions freely if he returned to Cambodia.  This was said to be distinct from his fear of persecution by physical harm or harassment by reason of political opinion imputed to him solely because of his previous political activities.

   Did the Tribunal assess the risk to the applicant by reference to the wrong profile?

10. On the applicant’s case, the Tribunal had accepted his claims to have undertaken general activities on behalf of a government minister and the FUNCINPEC party. It was further submitted that the applicant clearly had a deep commitment to the promotion and monitoring of human rights in Cambodia and could accurately be described as a ‘human rights activist’.  That characterisation was said to be borne out by what the Tribunal had accepted and the whole thrust and repetitive nature of the applicant’s claims.

11. Mr Gibson submitted that the Tribunal, having accepted one view of the applicant’s profile, had effectively assessed the risk of prospective persecution on the basis of another profile.  The profile said to have been accepted by the Tribunal was that which had arisen by virtue of the applicant’s past associations and activities and particularly his close affinity to General Krouch Yoeum.  General Krouch Yoeum was the “third highest ranking FUNCINPEC official in the Ministry of Defence” and an officer who, according to some independent reports, had been assassinated in 1997 by forces loyal to the then Second Prime Minister of Cambodia, Hun Sen.

12. In the light of its acceptance of a profile arising in that way, it was said to be both inaccurate and a failure properly to assess the applicant’s claim for the Tribunal to regard him merely as a “member or supporter” of FUNCINPEC, and to assess and evaluate the risk of persecution of the applicant on that basis alone.  The reference by the Tribunal to “members and supporters”, was said to diminish the status and profile of the applicant and wrongly characterise what he had done.  Counsel claimed that the Tribunal had effectively downgraded the applicant’s true status within FUNCINPEC and had thus assessed the risk of future persecution on a false premise.

13. The importance of accurately identifying the applicant’s status in the FUNCINPEC hierarchy was claimed to be demonstrated by this extract from the DFAT Country Information Report 233/99 dated 15 July 1999;

    “In such a situation, as was the case in 1998, it would be mid-level activists rather than high-profile leaders or grassroots members who may have cause for concern. On past patterns of activity, they may be warned by authorities to desist from their political activities, and if they did not do so, the harassment may intensify, possibly into violence.”

14. That passage, it was argued, established the existence of a category of “mid-level activist”.  In view of his past activities the Tribunal should have placed the applicant in that category. 

15. As a “mid-level activist’ the applicant was more likely to attract adverse attention from forces hostile to FUNCINPEC than rank and file members of FUNCINPEC or even ordinary citizens.  The attribution to the applicant of a “mid-level profile” was said to be justified by his relationship to a highly ranked FUNCINPEC official who, country information indicated, had, at another time, been targeted and persecuted by Hun Sen’s allies or supporters.

16. References by the Tribunal to “rare” and “isolated” incidents and “random” violence, it was contended, were mere glosses and reinforced the proposition that the Tribunal had not properly focused on the actual profile of the applicant when assessing the risk of his being persecuted in the future.  Thus, analogously with Minister for Immigration and Multicultural Affairs v Rajadurai [2000] FCA 1671, it was urged that the Tribunal had not assessed the claimed fear of persecution on the basis on which it had been framed.

17. The final submission in support of this first limb of the applicant’s case was that, apart from the initial reference to General Krouch Yoeum, there was surprisingly no further reference or indication at any point in the Tribunal’s decision that the profile which the applicant had acquired by reason of his association with the General had any bearing on the ultimate finding.

18. In order to determine whether the Tribunal misunderstood the profile which should have been attributed to the applicant in evaluating his fear of persecution for a Convention reason, it is necessary to consider the context in which the applicant advanced his claimed involvement with FUNCINPEC.  On page 6 of the Application for a Protection Visa (Form 866) the question was asked:  “[w]hy did you leave that country?”  The applicant responded;

    “I feared persecution in Cambodia from the ruling Hun Sen regime. As a member of FUNCINPEC I became at risk of persecution following the coup of 5 July 1997. …” (emphasis added)

19. On page 7 of the same form this question was asked:  “[w]hat do you fear may happen to you if you go back to that country?” to which the applicant replied;

    “I fear being persecuted. In Cambodia there is a real chance that I will be harmed by the government for being a member of the FUNCINPEC Party. I will never be able to express my political opinions in Cambodia while the Hun Sen regime is in power.”  (emphasis added)

1. Finally, on page 8 of the application form in answer to the question:  “[w]hy do you think they will harm/mistreat you if you go back [to Cambodia]?” the applicant said;

   “I will be persecuted for being a member of the FUNCINPEC party.”  (emphasis added)

2. Those responses by the applicant were consistent with the applicant’s written statement in support of his application, which recited;

   “I was working in a branch of FUNCINPEC party office as assistance to the supervisor and did some paper work the facilitate the new comers who wanted to be the our party members. I did this job as a part time from my full time job only, I did not get any payment and I did it to help my party and to improve the democracy and the human right in Cambodia ….”

3. Although that statement contained no specific reference to General Krouch Yoeum, the Tribunal accepted, I consider, that the “supervisor” had been the General.  That acceptance was borne out by this assertion in a later written submission made by the applicant in answer to the reasons given by the delegate of the Minister for the initial refusal of the application for a protection visa (Court Book, p 67);

   “My supervisor, General Krouch Yoeum he was an undersecretary of state and was the third highest ranking FUNCINPEC official in the Ministry of Defence.”

4. In the same written submission (Court Book, p 68) the applicant conceded;

   “I myself acknowledge that I am not high profile of FUNCINPEC but I was an activist in this party, through [my] actions and opinions I actually a target to be destroy by CPP.”

5. Similarly, it was open to the Tribunal to regard the true articulation of the applicant’s fear of persecution as contained in this sentence from the last paragraph of the same supplementary submission (Court Book, p 69);

   “They kill the party’s activists to gain their political benefit and threaten the people not to do anything against their tyranny.”

6. The Tribunal, in characterising the applicant’s claim in its reasons, noted that he claimed to have;

   “… assisted a government minister with office work and that he was also active in other ways such as distributing literature, preparing banners and recruiting new members. During the course of his application the applicant also stated that he was active in promoting human rights and that he observed acts of political violence.”

7. The Tribunal also stated that it;

   “… accepts that the applicant was a member of FUNCINPEC and that he undertook activities on behalf of a government minister, and the party in general, in ways he [h]as claimed. It also accepts that he promoted human rights and observed some incidents of politically motivated violence.”

8. In my view, the formulation of the Tribunal’s reasons in the two extracts last quoted is consistent with its acceptance of the applicant’s own description of his work in the interests of FUNCINPEC and what he did to assist a “government minister” [the General]. The fact that the Tribunal has not adopted the expression “mid-level activist” used in the DFAT Country Information Report quoted at [13] above does not indicate that it misapprehended the applicant’s level of involvement in FUNCINPEC. It merely signifies that the Tribunal considered it conducive to a proper assessment of the applicant’s claimed fear of persecution to describe what he had done as a member of FUNCINPEC rather than allocate to him one of the labels “high-profile leader”, “mid-level activist” or “grassroots member” which had commended themselves to another commentator.

9. The Tribunal’s use of expressions like “rare and isolated incidents” and “random and criminal violence” does not, to my mind, indicate a failure to attribute to the applicant the profile which the evidence required. In its context of the last two paragraphs of the extract quoted at [7] above, the reference to “random and criminal violence” reflects the Tribunal’s earlier acceptance that “criminality is rife” in Cambodia. However, the use of the epithet “random” signifies a finding that the violence which has occurred has not been specifically directed at FUNCINPEC members at any level of involvement or seniority in the party. Similarly, the finding that FUNCINPEC members and supporters have pursued their political aims and activities without encountering persecution “except perhaps in rare and isolated incidents” entails a similar conclusion that FUNCINPEC members and sympathisers across the whole spectrum of that class of persons have not been systematically persecuted in recent years. One may take issue with that finding of fact, as the applicant obviously does, but it was clearly relevant to an assessment of the risk to the applicant of persecution by reason of his FUNCINPEC activities and sympathies. In Minister for Immigration and Multicultural Affairs v Rajadurai [2000] FCA 1671, a Full Court of this Court observed, at [13], that;

   “… if a claim by an applicant for a protection visa is made, and that claim is central to the application and is not dealt with by the Tribunal, then the error identified in [Minister for Immigration and Multicultural Affairs v ] Baljit Singh [(2000) 98 FCR 469] will have occurred.”

10. That observation may require some qualification in the light of the pronouncements of the High Court in Minister for Immigration and Multicultural AffairsvYusuf (2001) 180 ALR 1 (“Yusuf”) which is discussed below.  At all events, it is clear that the claim which was central to the present application was of a fear of persecution by reason of the applicant’s past active membership of FUNCINPEC and, perhaps, his presumptive continued adherence to and exertions on behalf of that party were he to return to Cambodia.   For the reasons explained above, that central claim was dealt with by the Tribunal in a way which precludes a conclusion that it asked itself the wrong question or failed to take into account a relevant consideration.

11. The Tribunal attached significant weight to the applicant’s ability to depart Cambodia legally and concluded from this that he was not of any official interest.  No issue was taken on behalf of the applicant about the Tribunal’s finding in respect of the situation in Cambodia at the time of the applicant’s departure.  It was entirely appropriate for the Tribunal to base its assessment primarily on the present climate in Cambodia and a focus on that matter was implicit in the Tribunal’s extensive references to available “country information” which indicated that, even if the applicant had been of official interest at the time of his departure, any such interest would since have evaporated.  Support for that conclusion was provided by the finding that: “[i]t was clear that FUNCINPEC members and supporters have openly pursued their political aims and activities in Cambodia in recent years …”.  As well, the country information before the Tribunal made open its finding that FUNCINPEC members and supporters continue to operate openly and influentially in Cambodia as a national political force.

12. The effect which the Tribunal attributed to the country information was that after the elections in 1998 (conducted after the applicant had left Cambodia) FUNCINPEC and Hun Sen had entered into a further coalition in which each party had roughly equal power so that a FUNCINPEC member or activist no longer had a well-founded fear of persecution by reason of that membership. That was a finding of fact which the Tribunal was entitled to make in the light of the evidence which included the third last paragraph from the DFAT report quoted at [5] above which was clearly an analysis of the situation as it obtained in Cambodia in 1999.

13. The 1999 USA State Department Country Reports on Human Rights quoted at [6] above was to similar effect.

14. That evidence, I consider, provided clear support for the conclusion reached by the Tribunal in the second last of the paragraphs from its decision quoted at [7] above that, despite continuing abuses of human rights in Cambodia there was nothing to indicate that persons with the political profile of the applicant faced a real chance of persecution. That part of the Tribunal’s reasons contained this passage;

    “The investigation into the killing of a FUNCINPEC candidate for local election might ultimately reveal a political motivation in that case. Even if that were so, the evidence is overwhelming that, apart from possible rare and isolated incidents, active members and supporters of FUNCINPEC do not now face a real chance of persecution.”

15. That was a finding which was open to the Tribunal and did not depend on characterising the applicant as having a particular level of activity as a FUNCINPEC member or as being merely an ordinary citizen.

16. The ultimate question for the Tribunal required an assessment of the risk of persecution faced by the applicant having regard to his particular background, circumstances and disposition.  In the present case, the Tribunal answered that question when it concluded;

    “There is no material to indicate, however, that persons with the political profile of the applicant face a real chance of persecution.”

17. As I have already observed, the phrase “persons with the political profile of the applicant” implies an acceptance of the applicant’s account of his level of FUNCINPEC activity and his association with General Krouch Yoeum.  However, it remained necessary for the Tribunal to assess, as it did, the impact on a person with the applicant’s profile, of events since his departure from Cambodia.  Those events included the election contested by FUNCINPEC in which it received sufficient votes to be admitted to a coalition government with the party the applicant feared and the election of the FUNCINPEC leader as President of the National Assembly.  I can discern in that approach no error of law of the kind which the High Court indicated in Yusuf is required before this Court can sustain an application for review.

    The effect of the High Court’s judgment in Yusuf

18. After the oral hearing of the present application, the High Court published its reasons for judgment in Yusuf which contained pronouncements on the extent to which the obligation imposed on the Tribunal by s 430 of the Act might give rise to a right of review under s 476(1).  I therefore gave leave to the parties to this application to file and serve supplementary written submissions on the effect which should be given to Yusuf in the light of the invocation by the present applicant of s 476(1)(a). 

19. In exercising that leave, Mr Gibson for the applicant accepted that, as a result of Yusuf, the ground of review previously thought to be provided by s 476(1)(a) was no longer available.  However, he went on to make the alternative submission that the apprehended denial of the right to express his political opinions freely was central to the applicant’s claimed fear of persecution.  The Tribunal’s failure to examine this part of his claim amounted to its having identified the wrong issue which was an error reviewable under s 476(1)(b), (c) or (e).  It was submitted that the Tribunal’s failure to direct itself to whether the feared restrictions on the applicant’s right to full and free expression of his political opinions amounted to a well-founded fear of persecution was a failure properly to complete the task required of the Tribunal in undertaking its jurisdiction.  That was held by Allsop J in Farajvand v Minister for Immigration and Multicultural Affairs [2001] FCA 795, decided shortly after Yusuf was published, to amount to a reviewable error of law. In that case, his Honour said, at [34] - [37];

    “If my preferred view of the reasons is not correct, then I think that the Tribunal has failed to direct itself to a question which is inherent in the Convention definition, and the intersection of religion and persecution within that composite phrase, as arising from the facts as found.  That is, the Tribunal has not directed itself to the question as to whether the anticipated limits on the practice of the Christian faith of this applicant and the foresight of any such limitation did or did not amount to persecution or, more accurately, a well-founded fear of persecution.

    To fail to undertake that analysis is not the leaving aside of a mere factual piece of probative evidence.  It is to fail to complete the analysis of the position of the applicant as a refugee sur place.  This is so even if it is not to be accepted from the findings that the Tribunal did find that the applicant would limit his religious practice because of a recognition or fear of State action in Iran. 

    On either basis which I have put, in my view there is an error of law within the meaning of either s 476(1)(e) or s 476(1)(b) of the Act.  As to the former provision, that is, s 476(1)(e), in my view there is an error of law in the appreciation of the applicable law, that is, the meaning of religion and its intersection with persecution within the composite phrase in the Convention, and the application of that law to the facts as in fact found. 

    Alternatively (s 476(1)(b)), there has been a failure to complete the task directed by the Convention and the Act in the assessment of the status of the applicant as a refugee sur place in the light of the facts as found.  In the sense discussed in Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, in particular the latter, that failure in my view is a failure properly to complete the task required of it in undertaking its jurisdiction. As I have said, I do not base this on a failure to take into account some fact propounded by the claimant, but rather the failure to direct itself to the question thrown up by the facts, that is, the intersection of the notion of religion and persecution by reference to the limitations to be placed on this applicant when he goes back to Iran in the context of deciding whether he had a well-founded fear of persecution.”

20. In Sikder Aslan v Minister for Immigration and Multicultural Affairs [2001] FCA 673, which was decided at about the same time, Allsop J also adverted to what might constitute a failure by the Tribunal to exercise the jurisdiction entrusted to it by the Act although he reached a different result from that in Farajvand.  In Sikder Aslan his Honour said, at [36] - [37];

    “To the extent that ground 5 might also be said to seek to raise a question of a failure properly to deal with a matter on a reasonable basis such that it might be said that there was a failure to assume jurisdiction correctly or to deal with what might be referred to as jurisdictional facts (see Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 [1], [74-83] and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 650-659 [128]-[156]), I reject any such proposition. The Tribunal’s reasons reflect an apparently serious and genuine application by it to the task before it, and an approach which is not illogical or irrational or unreasonable, or unsupported by probative material or logical grounds. The Tribunal attended to the questions mandated by the Act and Regulations under ss. 36 and 65 and Part 866 of Schedule 2 respectively and it cannot be said that it failed to deal with any factual topic or matter thrown up by the claims of the applicant which could be said to be evidentially probative, and, in that sense, relevant to the questions mandated by the Act.  It may be that the applicant deeply disagrees with the factual conclusions and findings of the Tribunal.  However there was material before the Tribunal capable of founding its findings and conclusions. … … … … …

    By putting the matter as I have in the last paragraph I should not be taken as stating a view that each of the matters there referred to would necessarily, if it existed, give rise to grounds for review under s. 476(1).  However, the matters which I have mentioned appear to me to encompass what might conceivably be said to found an attack on this decision by reference to these jurisdictional concepts.”

21. It was further contended in the applicant’s supplementary written submission that the Tribunal’s failure to address the discrete issue of the applicant’s claimed fear of suppression of his voicing his political opinions involved either an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal.  Mr Gibson pointed to this passage from the judgment of McHugh, Gummow and Hayne JJ in Yusuf, at 22;

    “What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision‑maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.  Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law [Craig (1995) 184 CLR 163 at 179].

    No doubt full weight must be given to s 476(3) and the limitations which it prescribes in the construction of improper exercise of power in par (d) of s 476(1).  Equally, however, it is important to recognise that these limitations, unlike those prescribed by s 476(2), are limitations on only one of the grounds specified in s 476(1).  All this being so, there is no reason to give either par (b) or par (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs.  In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it "exceeds its authority or powers".  If that is so, the person who purported to make the decision "did not have jurisdiction" to make the decision he or she made, and the decision "was not authorised" by the Act.

    Moreover, in such a case, the decision may well, within the meaning of par (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.  That it cannot be said to be an improper exercise of power (as that expression is to be understood in s 476(1)(d), read in light of s 476(3)) is not to the point.  No doubt it must be recognised that the ground stated in par (e) is not described simply as making an error of law.  The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.  That qualification emphasises that factual error by the Tribunal will not found review.  Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals.  That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language.  If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found.  If that is so, the ground in s 476(1)(e) is made out.

    Paragraphs (b), (c) and (e) would thus each be engaged in such a case and the Federal Court would have jurisdiction under Pt 8 of the Act to review the Tribunal's decision.”  (original emphasis)

22. As I understand it, the thrust of the applicant’s reliance on that passage was that the Tribunal’s failure to address separately the applicant’s claimed fear of denial of his exercise of a right of full expression of his political opinions indicated that it had asked itself a wrong question or had ignored relevant material.

    Did the Tribunal err in failing to address the risk of persecution by denial of the applicant’s right to express his political opinions?

1. This second respect in which the Tribunal was said to have erred in law was its failure to apprehend a “free standing” claim of fear of persecution distinct from the more generalised fear of bodily harm or harassment, which I take to include deprivation of, or restrictions on, the applicant’s physical liberty. Counsel for the applicant contended for this discrete claim by pointing to the second part of the answer to the question asked on page 7 of the Application for a Protection Visa which is quoted at [19] above. The relevant sentence, it will be recalled, was;

   “I will never be able to express my political opinions in Cambodia while the Hun Sen regime is in power.”

2. According to Counsel for the applicant, that sentence expressed a separate fear of restrictions on, or denial, of the applicant’s right of freedom of political expression, which was a separate form of persecution from that claimed to be feared by reason of his membership and activities in support of FUNCINPEC. In support of this part of the applicant’s case stress was laid on those statements in which he referred to his role as a communicator in the cause of democracy and human rights. For example, immediately after the part of the statement quoted at [21] above the applicant said;

   “… I was very happy to do that because I could use my knowledge and could communicate with people and my country.”

3. Later, in the same statement made on 16 February 1997 (Court Book p 29) the applicant said;

   “I could be the one who regard as the democracy promoter against Hun Sen government.  Usually the foreigners or oversea Cambodians are under the investigation of the authority when they go to work or visit Cambodia especially from democracy countries such as America, Franc, Australia etc.”

4. In the same context reference was made to the applicant’s mention in the passage from his second statement quoted at [23] above to his “actions and opinions”.

5. Those passages were said to illustrate the very strong flavour of commitment to democracy, human rights and freedom of expression which pervaded the applicant’s case. Given the Tribunal’s acceptance of the level of the applicant’s past political activities and commitment to the cause of democracy and human rights, it was urged that the Tribunal had been obliged to consider the applicant’s claimed fear of this second form of persecution. Such consideration, it was submitted, would have canvassed relevant parts of the country information which the Tribunal had before it. One such part was the last paragraph from the DFAT report quoted at [5] above which speculated that “mid-level activists … may be warned by authorities to desist from their political activities.”

6. Similar reliance was placed on these passages from an Amnesty International article dated 23 October 1997;

   “If these elections are to be held in a climate where people are free to exercise their fundamental rights to freedom of expression and association, then improvements in the human rights situation in Cambodia are required. Without such improvements, the security of candidates, activists and voters cannot be guaranteed.   … … …… …

   Such draconian methods do nothing to restore confidence among Cambodians at home and in exile that their right to freedom of expression is guaranteed.  … … … … …”

   Of those who are currently taking refuge in neighbouring countries, many would like to return to Cambodia, but are fearful of doing so, as they believe that their security and freedom of expression and association will be compromised in the current political climate.”

7. Against that background, Counsel for the applicant referred to this passage from the judgment of Lindgren J in Oo v Minister for Immigration and Multicultural Affairs [2001] FCA 348, at [39];

   “Counsel for Mr Oo submits that the RRT erred in not categorising the monitoring for a period which it found Mr Oo would be likely to face upon returning to Burma as being ‘of sufficient seriousness to amount to persecution’.  No doubt, what may amount to persecution for reason of political opinion of a person with a high degree of political commitment may not amount to persecution for that reason of a person with no such commitment.  Similarly, what may amount to persecution for reason of religion of a deeply religious person may not amount to persecution for that reason of an irreligious person.”

8. As I understand the argument, it was sought to identify the present applicant as a deeply committed political activist for whom even a slight amount of “monitoring” or restriction of the expression of his views in support of human rights and democracy would amount to persecution.  However, as indicated earlier in these reasons, the Tribunal, in fact, accepted that the applicant was a committed FUNCINPEC activist but was unable to find, in light of the changed circumstances in Cambodia, that he would be at risk of persecution in any of its forms.

9. At [42] in Oo Lindgren J referred to the judgment of Madgwick J in Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132 and noted;

   “…  His Honour held that the RRT had failed to consider a subsidiary claim of the applicants that they “faced persecution because they would be denied the right to express their political opinions freely if returned to Burma” (at [13]).  He concluded that a denial of freedom to express one’s political opinion may, of itself, constitute persecution.  But his Honour stated (at [19]):

   “However, the mere fact that a right is denied is not, in my opinion, necessarily enough to establish refugee status. It will generally also be important to ascertain the importance that the asylum-seeker places upon the exercise of that particular right. To take an extreme example, heterosexuals could not claim to be persecuted because they are prohibited from engaging in homosexual acts.”

   His Honour also stated (at [20]):

   “The principle, it seems to me, is that a denial of [civil rights] would amount to persecution when that denial is so complete and effective that it actually and seriously offends a real aspiration so held by an asylum seeker that it can be fairly said to be integral to his or her human dignity. It is not fatal to such a claim of persecution that the claimant fails to show that he or she is a leading exponent of a claim to, or the wish to, exercise such rights, let alone that he or she exhibits a capacity for martyrdom.”

   In Win, the applicants had claimed in their written submissions to the RRT to fear persecution because, if returned to Burma, they would “not have the right to speak freely, the right to writing freedom and the right to living freedom” (at [4]). Madgwick J held that, “having accepted that free expression of political opinion was not tolerated by the Burmese government and that those actually undertaking such expression were subject to persecution”, the RRT was bound to consider this subsidiary claim made by the applicants because, firstly, the applicants had claimed to have demonstrated a high degree of political commitment in the not so distant past, and, secondly, the claim was distinctly and sufficiently raised (at [25] and [26]).”

10. Madgwick J in Win had observed, at [20];

    “The principle, it seems to me, is that denial of such civil rights would amount to persecution when that denial is so complete and effective that it actually and seriously offends a real aspiration so held by an asylum seeker that it can be fairly said to be integral to his or her human dignity.  It is not fatal to such a claim of persecution that the claimant fails to show that he or she is a leading exponent of a claim to, or the wish to, exercise such rights, let alone that he or she exhibits a capacity for martyrdom.  The Convention aims at the protection of those whose human dignity is imperilled, the timorous as well as the bold, the inarticulate as well as the outspoken, the followers as well as the leaders in religious, political or social causes, in a word, the ordinary person as well as the extraordinary one.  But, of course, the Convention did not aim at providing a universal right to change countries for every inhabitant of every oppressively ruled society on earth, however important civil and political rights may, as a matter of mere intellectual persuasion, be to such an inhabitant.  The Convention was intended to relieve against actual or potentially real suffering.”

11. Like Lindgren J in Oo, I am not persuaded that the claim to fear persecution in the form of restrictions on the applicant’s freedom of political expression was sufficiently raised as a separate and distinct fear from the fear of undifferentiated persecution by reason of his political activism.  The question of a separate fear of persecution by denial of expression of his political views was not “thrown up by the facts” in the sense used by Allsop J in the passage from Farajvand quoted at [38] above. As I perceive it, the applicant advanced his claim in a “rolled-up” form contending, in effect, that if he were to return to Cambodia he would be subjected to discrimination, harassment or worse, by reason of his support for FUNCINPEC and his continuing advocacy of its policies including those directed to the promotion of democracy and the enhancement of human rights. When a claim has been articulated in that way, it would be unreasonable to require the Tribunal to disentangle each thread of the rolled up case and evaluate separately each formulation of the applicant’s fear that might result. Such a requirement, I consider, would fly in the face of the caveat entered by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, where it was observed that in Collector of Customs v Pozzolanic (1993) 43 FCR 280, a Full Court of this Court had;

    “… … collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker. [Pozzolanic (1993) 43 FCR 280 at 287] The court continued [Pozzolanic (1993) 43 FCR 280 at 287]:
    

    “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

    These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.  [See McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616.]  In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”

12. In the present case, there was no suggestion that the applicant would feel impelled to speak out against the FUNCINPEC / CPP coalition if he were to return to Cambodia.  His case, which I consider the Tribunal understood and assessed, was that, as a mid-level FUNCINPEC activist, he would be at risk of persecution in one or more of its forms by those formerly hostile to FUNCINPEC notwithstanding the formation of the coalition in which that party was a partner.

13. It follows that, unlike the claim considered by Madgwick J in Win, the case made by the present applicant did not contain a separate subsidiary assertion that he would be denied the right to express his political opinions freely if he were returned to Cambodia.  Even if I be wrong about that characterisation of the applicant’s claim, it does not seem to have been open to the Tribunal, on the evidence, to conclude that the post-1999 coalition regime in Cambodia would restrict political expression, including that of FUNCINPEC’s supporters in the extremely repressive way in which, as his Honour took judicial notice, the regime in Burma has acted.  Among the findings made by the Tribunal which seem to me to deny such a conclusion are the following;

    “It is apparent from information cited below that FUNCINPEC members and supporters continue to operate openly and influentially as a national political force.  … … …

    … … the evidence is overwhelming that, apart from possible rare and isolated incidents, active members and supporters of FUNCINPEC do not now face a real chance of persecution.  Nothing in other material submitted by the applicant leads to a different conclusion.

    … … members of FUNCINPEC with a profile like that of the applicant do not face a real chance of persecution.  It is clear that FUNCINPEC members and supporters have openly pursued their political aims and activities in Cambodia in recent years without encountering persecution, except perhaps in rare and isolated incidents.”

14. Those findings, I consider, were directed to the applicant’s claim, however it be characterised, that he would be prevented from expressing his pro-FUNCINPEC beliefs in Cambodia.  They were not confined to an assessment of whether the applicant’s past political activities exposed him to a real chance of persecution upon return, but extended to a positive assertion that persons like the applicant are currently participating in political discourse and the exercise of legislative and executive power in a way which negatives the fear on which his case was predicated.

    Conclusion

15. For the reasons which I have explained, I have been unable to uphold either limb of the applicant’s attack on the Tribunal’s decision.  The application must therefore be dismissed with costs.

I certify that the preceding fifty-six (56 numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            29 August 2002

Counsel for the Applicant:	Mr J Gibson
Solicitor for the Applicant:	Erskine Rodan & Associates
Counsel for the Respondent:	Mr C Rawson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 April 2001
Date of Written Submissions:	6 and 27 July 2001
Date of Judgment:	29 August 2002