Applicant Nasl of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 722

FEDERAL COURT OF AUSTRALIA

Applicant NASL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 722

APPLICANT NASL OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N405 OF 2003

BENNETT J
17 JULY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N405 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NASL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	17 JULY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed

2.the appellant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N405 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NASL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BENNETT J
DATE:	17 JULY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Peru who arrived in Australia with his wife and son on 20 February 2001. On 6 April 2001 he lodged an application for a protection (Class XA) visa. On 21 May 2001 a delegate of the respondent refused to grant the protection visa and on 4 June 2001 the appellant applied for a review of that decision by the Refugee Review Tribunal (‘the Tribunal’). The Tribunal interviewed the appellant and his wife and made its decision on 28 June 2002, handing it down on 23 July 2002. The appellant applied to the Federal Magistrates Court for review of the Tribunal’s decision and on 12 March 2003 Raphael FM dismissed the application. This is an appeal from that decision. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice directed the appeal be heard by a single judge of the Court.

   BACKGROUND

2. Raphael FM conveniently summarised the factual background to this matter at [3] – [8] of his Honour’s judgement:

   ‘The applicant is an IT specialist. He worked for approximately ten years between 1990 and March 2000 for a Peruvian bank in Lima. He took voluntary redundancy from the bank on 31 March 2000 but was recalled as a consultant in July of that year. At the end of October 2000 he was called into a meeting with the Manager of Information Security and requested to undertake a detailed investigation of certain accounts at the bank for the previous ten years. He was asked to create a computer program to assist in undertaking this work. The accounts which he was to investigate were those belonging to persons closely connected with the now infamous Fujimori regime including Mr Fujimori’s head of National Intelligence Vladimiro Lenin Montesinos Torres. An interim government had come into power in Peru after Mr Fujimori had been ousted and it appeared determined to reveal the extent to which the Fujimori government had utilised the finances of the country for its own purposes.

   The interim government of Paniagua gave way to the elected government of President Toledo but the applicant’s work continued. He discovered a considerable amount of information concerning Mr Mostesinos Torres and others. Some of this information became public. Certain people were charged with offences and Mr Torres was also charged. The General Manager of the bank was revealed to have been in cahoots with Mr Torres and was publicly implicated in his corrupt dealings.

   On 13 December 2000, a senior person from the bank contacted the applicant on his mobile phone. He was told that there was a new list with names of businesses to search for. As he was proceeding towards the bank at about 6pm that evening an incident occurred. The applicant was stopped by a car with three men inside. One of these men was dressed in a police uniform. They aimed a gun at the applicant’s head and pushed him against the car with one arm on the roof of the car and the other up his back. They searched his pockets and took his phone, his wallet and his briefcase. These people forced him into the car and told him that they knew about his work at the bank and that he had something they wanted. What they wanted was the accounts and information in relation to Mr Montesinos Torres, the current President Mr Toledo and his wife who had once worked at the bank. They threatened to kill the applicant. They wanted him to erase all the information about the accounts of people that he had been investigating from the computer system. They told the applicant that they had already been to his home and that his wife had already given them information. They threatened to kill his wife and son if he did not do as they said and told him not to report the incident.

   The applicant agreed to assist these men. He returned to his home and discovered that what they had said was true. His wife had been beaten around and his son was in a state of shock. The applicant provided the information that was required but he was unable and unwilling to destroy the information on the computers. He and his wife left their home and moved nearby to the homes of relations.

   The applicant went to live with his aunt and his wife and son went to live with his mother-in-law. The applicant was fearful about his refusal and inability to do anything about destroying the records on the computer. He reported the incident to the bank who told him that they could not protect him but they would assist him to leave the country. This was done. A visa was obtained for Australia. The applicant left in February 2001 having only once returned to his former home.

   The applicant maintains that he has a genuine fear that if he returns to Peru he will be the subject of persecution from those persons who arranged for this incident to happen and/or from the General Manager of the bank. He believes that the Government would be unable or unwilling to protect him and that the reason for the likely persecution is his imputed political opinion of being against those members of the former Fujimori Regime.’

   THE DECISION OF THE TRIBUNAL

3. The appellant claimed that his well founded fear of persecution arose from:

   (a)his support of the APRISTA political party; and

   (b)the special investigations he carried out at the Wiese Sudameris bank exposing and revealing the financial dealings of Vladimir Lenin Montesinos (adviser to and de facto head of the intelligence service of the former President of Peru, Alberto Fujimori) and other significant persons in Peru.

4. The Tribunal accepted the majority of the factual details of the appellant’s claims and accepted that the incident on 13 December 2000 (‘the attack’) was extremely distressing. The Tribunal, however, was not satisfied that the appellant’s fear of persecution upon return to Peru was well founded. The key factors upon which this finding was based were:

   (a)much of the information in relation to the financial dealings of Montesinos obtained by the appellant through his investigations was already in the public arena by November 2000;

   (b)after the attack, the appellant continued to go out and continued to work at the same place (at his ‘day job’) until he left Peru in February 2001;

   (c)although the appellant had not destroyed the data at the bank (as demanded by his attackers), the appellant did not encounter any other problems after the attack and after he provided a bundle of documents on 14 December 2000 to his attackers;

   (d)the appellant did not seek protection from the present government and did not seek help from the police or the authorities at the time of the attack;

   (e)circumstances in Peru have changed significantly since the fall of the Fujimori government in November 2000 and the election of the Toledo government and since the appellant left Peru in February 2001.  Many steps have been taken to end institutionalised corruption;

   (f)no reasonable evidence was presented to the Tribunal that the present government is not politically stable and that it will not continue to implement and consolidate the democratic and institutional reforms it has initiated. Authorities in Peru now seem willing and able to offer adequate protection in the event that certain people would harm the appellant for a Convention reason (for example, his political opinion or membership of a particular social group) or because of the investigations he undertook; and 

   (g)the APRISTA party now has a number of elected representatives in the national congress.

5. As the Tribunal found that the appellant did not have a ‘well founded fear’ of being persecuted in Peru, it did not find it necessary to determine finally whether the harm feared by the appellant would arise for any Convention reason.

   THE DECISION OF THE MAGISTRATE

6. Before Raphael FM the appellant claimed that the Tribunal erred in law in its findings that the appellant’s claims were not well founded and that the finding was so unreasonable that no reasonable person could have made it.  The particulars provided were:

   ‘The Tribunal accepted all of the applicant’s claims, including the claim to have been seriously assaulted and threatened by people with apparent military and police connections, and on that basis the only reasonable finding open to it was that there was a real chance that the applicants would suffer persecution on the grounds of imputed political opinion on return to Peru.’

7. The appellant submitted that the conclusion reached by the Tribunal, that the appellant was safe from the dangers posed by the attackers or their controllers because they had, in effect, given up, was made without applying the ‘real chance’ test formulated in Chanv Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. The appellant argued that, by applying that ‘real chance’ test, Raphael FM should have accepted that the Tribunal’s decision was unreasonable.

8. Raphael FM reviewed the decision of the Tribunal but was not satisfied that Tribunal made findings that were not open to it. His Honour noted that Chan was a case in which the Court was able to find that there was a ‘real chance’ of continuing persecution because all the evidence pointed one way and no evidence pointed the other and that, because of this evidentiary situation, the Court was able to find that the action of the Tribunal was unreasonable to the required legal standard: Associated Provincial Picture Houses Limited vWednesbury Corporation [1948] 1 KB 223.

9. The Tribunal gave a number of reasons as to why it came to the conclusion that the attackers were no longer interested in the appellant. It was not a case where all the evidence pointed in the direction that there was a ‘real chance’ of continuing persecution if the appellant returned to Peru. Raphael FM was not satisfied that the Tribunal made findings that were not open to it. Furthermore, his Honour held that, if the finding of the Tribunal concerning the appellant’s objective fear were not susceptible to review, it could not be argued that the other conclusions of the Tribunal, which were dependent on that one finding, were made with a want of jurisdiction. Accordingly, Raphael FM dismissed the appellant’s application.

   THE APPEAL

10. The appellant appeared in person, assisted by an interpreter.  In the notice of appeal filed on 28 March 2003, the appellant stated:

    ‘Due to the Tribunal accepted in full the factual details of my application … to the Federal Magistrates Court … I still think the situation of my family would be the same as in the beginning with the risk of life, because all the people involved in that case are still in positions of the actual government … I ask a new revision of my case’. [original language retained]

11. At hearing the appellant again submitted that the finding of the Tribunal, that the appellant’s fear of persecution was not well founded, was not reasonable given that the Tribunal accepted the majority of the appellant’s claims. The appellant pointed to the two findings of the Tribunal that he submitted were not reasonably based:

    (a)the Tribunal did not accept the appellant’s evidence that he ‘had to move around’ after the attack (at page 130 of the Appeal Book); and

    (b)there was some delay in the appellant’s leaving Peru after he obtained his visa in January 2001 (at page 131 of the Appeal Book).

12. In support of his submissions, the appellant also sought to tender an edited tape and a video of the Tribunal hearing. After receiving submissions from the appellant and respondent, the tender was rejected. A full explanation of the facts is already before the Court in the Appeal Book and the reasons for judgement of Raphael FM and, subject to the above two matters, were not disputed.

13. The Tribunal’s decision did not turn on the two findings identified above. By the appellant’s own evidence, he did not ‘move around’ but went straight to stay at his aunt’s place in another suburb. The Tribunal had some doubts as to the truthfulness of the appellant’s evidence that he left his home on 14 December 2000 as a result of the attack. The Tribunal, however, gave the appellant the benefit of the doubt and reached its findings on the basis that the appellant stayed at his aunt’s home from 14 December 2000. Further, the Tribunal placed no weight on any delay in the appellant’s leaving Peru.

14. The respondent submits that the notice of appeal does not specify any proper grounds of appeal and that the appellant’s outline of submissions merely repeats the arguments put to Raphael FM. Therefore, the respondent submits, the issue on appeal is whether his Honour erred in finding that the decision of the Tribunal was not vitiated for unreasonableness.

15. The issue before me is whether it was unreasonable for the Tribunal to have found that the appellant did not have a well founded fear of persecution in circumstances where the Tribunal accepted the majority of the appellant’s claims.

    WELL FOUNDED FEAR OF PERSECUTION

16. In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (at 406 per Toohey J; at 413 and 415 per Gaudron J; and at 429 per McHugh J) it was held that the expression ‘well founded fear of persecution’ required not only that the fear be genuinely held by the appellant (subjective element), but also that there be an objective justification or foundation for that fear (objective element). The fear of being persecuted must not all be in the mind; there must be a sufficient foundation for that fear: Chan (at 396) per Dawson J. If the appellant ‘establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded’ : Chan (at 389) per Mason CJ. ‘A real chance is one that is not remote, regardless of whether it is less or more than 50 percent’: Chan (at 398) per Dawson J.

17. The Tribunal accepted that the attack occurred, that the appellant and his family were threatened and mistreated and that that the appellant was very frightened.

18. The Tribunal was not satisfied, however, that the there was a ‘real chance’ of the appellant being persecuted upon his return to Peru. The Tribunal was not satisfied there was a ‘real chance’ of the appellant being persecuted upon his return to Peru for the reasons set out in [4] above. This was an objective assessment, an assessment the Tribunal was entitled to make.

    UNREASONABLENESS

19. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Gleeson CJ and McHugh J, with whom Hayne J agreed, said (at 626):

    ‘Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as “illogical” or “unreasonable”, or even “so unreasonable that no reasonable person could adopt it”.  If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.’

    Their Honours then approved the following passage from the judgment of Lord Brightman in Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518:

    ‘Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.’

20. Gleeson CJ and McHugh J then referred to the facts of Wednesbury and noted Lord Greene MR’s observation that what a Court may consider unreasonable is a very different thing from ‘something overwhelming’ such that it means that a decision was one that no reasonable body could have come to.

    CONCLUSION

21. For the reasons outlined above, the Tribunal was not satisfied that there was a ‘real chance’ that the appellant would be persecuted if he returned to Peru.  Raphael FM was satisfied that this finding was open to the Tribunal and that it was not unreasonable. Raphael FM correctly applied the ‘real chance’ test in Chan. I can discern no error of law. Accordingly I dismiss the appeal and order the appellant to pay the respondent’s costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:            17 July 2003

Applicant appeared in person
Counsel for the Respondent:	J D Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	10 June 2003
Date of Judgment:	17 July 2003