Minister for Immigration and Citizenship v SZJSS

[2010] HCATrans 247

[2010] HCATrans 247

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S147 of 2010

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Appellant

and

SZJSS

First Respondent

SZLFG

Second Respondent

REFUGEE REVIEW TRIBUNAL

Third Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 21 SEPTEMBER 2010, AT 10.15 AM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC, Solicitor-General of the Commonwealth of Australia:   If the Court pleases, I appear with MR G.T. JOHNSON for the appellant.  (instructed by DLA Phillips Fox Lawyers)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR J.R. YOUNG, for the first and second respondents.  (instructed by Simon Diab & Associates Solicitors)

FRENCH CJ:   Thank you.  There is a submitting appearance for the third respondent.  Yes, Mr Solicitor.

MR GAGELER:   Your Honours, this is a fortunately rare case where the Federal Court has taken a wholly orthodox proposition that the Refugee Review Tribunal, in the performance of its statutory duty to conduct a review under section 414 of the Migration Act, is under an obligation to give proper, genuine and realistic consideration to the merits of the case and has stretched that orthodox proposition to a heterodox extreme. 

As to the principles governing the proper use and potential for abuse of the proper, genuine and realistic formulation, there appears, on a re‑reading of the written submissions, to be no dispute between the parties and we are content, for our part, with the statement of principle that is to be found extracted in the respondent’s written submissions at paragraph 12 in the extract from the very recent judgment of Justice Basten in the Court of Appeal of New South Wales in a case of Swift v SAS Trustee Corporation.  We draw attention, in particular, to the first sentence of paragraph 47 of that extract where his Honour said that:

The use of such language in administrative law is not common, no doubt in large part because of the risks of misapplication.

We add simply two references from the cases we have ourselves mentioned in paragraph 25 of our written submissions.  These are, I think, the only two cases that I want to specifically draw your Honours’ attention to.  One is Anthonypillai (2001) 106 FCR 426 where the language of “proper, genuine and realistic” is subjected to appropriate scrutiny at paragraphs 60 through to 64 and we invite your Honours’ attention, in particular, to the last two sentences of paragraph 63 and the quotation contained in paragraph 64.

The other case we want to draw your Honours’ attention to, in particular, is Abebe v Commonwealth (1999) 197 CLR 510 where at page 580 in a joint judgment of your Honours Justices Gummow and Hayne, with which Justice Gaudron relevantly agreed at page 546, what you see at the top of the page is the concluding part of the familiar statement of Justice Brennan in Quin.  In that context, dealing with the arguments before the Court, in paragraph 197 in the last two sentences this is said:

In the end, the criticisms made by the applicant of the Tribunal’s reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration.  But what weight the Tribunal gave to those various pieces of information was for it to say.

In the present case the findings of jurisdictional error made by the Federal Court are on the ground of a failure by the Tribunal to give proper, genuine and realistic consideration to the merits and, indeed, on other grounds, are all, in our submissions, manifestations of nothing more than a strong disagreement on the part of the Federal Court with the weight to be accorded to particular pieces of information before the Tribunal, combined with what is, in our submission, an unduly critical reading of the Tribunal’s reasons.  His Honour, in short, was too keen in his criticism and too ready to act on his own view of the weight of the evidence.

The findings of jurisdictional error focus on the Tribunal’s reasoning which is set out at pages 26 and 27 of the appeal book and in particular focus on the description in paragraph 141 of something said by the applicant in the course of the hearing before the Tribunal as “a baseless tactic” and on the treatment in paragraphs 142 through to 145 of three letters upon which the applicant relied before the Tribunal as corroborative of his claims.  The context within which what is there said by the Tribunal needs to be evaluated can usefully be picked up by going back to page 21 where, about two-thirds of the way down the page, there is a heading “Findings and Reasons” and the first four paragraphs that then follow summarise adequately enough the applicant’s claims.  Paragraph 100 says:

Recapping the Applicant’s claims, he asserted to the Department that he was singled out by the Maoists for abduction and forced training because of his particular, somewhat outspoken style as a teacher who was also a member of a local chapter of Amnesty International.

The claim about membership of Amnesty International your Honours do not need to turn to, but it is made at about line 40 on page 70 in the applicant’s original statement in support of his application.  The claim about Amnesty International is dealt with by the Tribunal at page 23 in paragraphs 117 to 118, and particularly you pick up at the beginning of paragraph 118 that he joined Amnesty International shortly before he obtained his passport.  Paragraph 101 then deals with the next claim where it is said that:

The Applicant claimed to the Department and to the RRT that as teachers and business people he and his wife were harassed and punished by the Maoists in the form of obligatory, increasing revolutionary taxes, the donations referred to throughout this decision.

In dealing with that claim one finds the context for the “baseless tactic” comment, and I will come back to that.  Paragraph 102 says that:

The Applicant claimed through the history of this protection visa application that because he paid these taxes to the Maoists, the authorities questioned him and began treating him like a Maoist or Maoist sympathiser.

That claim was the subject of relevant evidence that is recorded by the Tribunal at paragraph 85 leading to its rejection by the Tribunal at paragraph 121.  Paragraph 103 says:

The Applicant also claimed that because the authorities started snooping around him, the Maoists started to view him as a government spy.

That is a claim, again your Honours need not turn to it, made, at least implicitly, in his personal statement at page 71, about line 15, and it is in dealing with that claim that one finds the context for the discussion of the letters, and I will return to that.

Dealing first with the claim recorded at paragraph 101, that is the revolutionary taxes required to be paid as teachers and as business people, there was some oral evidence that was recorded by the Tribunal at page 18, commencing at paragraph 67 and picking the eyes out of it, paragraph 67 in the last sentence records that the applicant:

said his three children were still studying in Kathmandu under the care of his younger brother.

68.The applicant said he still cannot return to Nepal because Maoist activities are the same as before.

69.The Tribunal asked the Applicant what the Maoists are doing today that would relevantly affect him, and he said they still [bash] people who do not support them.  The Tribunal questioned his suggestion that all non‑Maoists are bashed, and he said “not everyone” is bashed, but only those people who did not support the Maoists in the past.

Dropping down to paragraph 72:

The Tribunal asked the Applicant to state specifically who amongst the Maoists’ former enemies faces ongoing relevant harassment, and he referred to people who did not support them in the past at the village level.

73.The Tribunal put to the Applicant that he seemed to be differentiating what happens to non‑Maoists in the villages from what happens to non‑Maoists in Kathmandu, and he then said that it is the same for non‑Maoists in Kathmandu.  He seemed, therefore, to be back to saying that all non‑Maoists everywhere face serious relevant harassment from the Maoists, in such form as being “bashed”.

74.The Tribunal asked the Applicant if his brother in Kathmandu faced being bashed by the Maoists, and he said his brother, not being a teacher does not face the same risks he himself faces.

We do not have the transcript, but that is a summary of what appears to be the most pertinent part of the evidence.  Can I draw attention to just a couple of other aspects of the oral evidence, as recorded by the Tribunal?  Important to the Tribunal’s reasoning is what appears at paragraph 77:

The applicant said the Maoists treated supporters and non‑supporters alike at his school, making the same donation demands and expecting all to attend occasional boot camps where they were taught to train pupils in the handling of firearms.  He said the pro‑Maoist teachers at his school were treated the same but enjoyed the boot camp whereas he did not.

Then at paragraphs 93 and 94 the applicant is recorded as saying essentially that things are better in Nepal now than they were in the past.  Paragraphs 95 to 96 then record an exchange that goes pretty much to the heart of the Tribunal’s eventual reasoning.  Paragraph 99 returns to the children still currently attending a private school in Kathmandu where they are not subjected to any military‑style activities.

Then, if one goes to the relevant part of the findings and reasons that begins at page 25, paragraph 128 where it is said:

The Tribunal will now discuss the Applicant’s claims about the revolutionary taxes in greater detail.

Paragraph 135 records that:

The Tribunal is prepared to accept that the harm threatened by the local Maoists insurgents upon local money earners like the Applicants, to deter them from resisting revolutionary tax payments, was Convention‑related harm.

136.By the Applicant’s own evidence he and his family ceased to be the targets of these onerous and coercive revenue‑raising activities after –

he left the village.  Then, paragraph 137 says:

Having regard to this, the Tribunal finds that any ongoing risk of harm, in the form of Maoist revolutionary tax demands and associated threats, would depend on the activities of local Maoists in individual localities.

Paragraph 139 records an important finding:

The Tribunal is not satisfied on the evidence before it that school teachers are currently being charged revolutionary taxes under threat of violence in Kathmandu, where the Applicant was last residing.

That deals with the school teacher claim.  Paragraph 140 then goes on and deals with the businessman claim in similar terms.  In that context the second sentence of paragraph 140 says:

When the Tribunal asked him why he could not come out of hiding in Kathmandu now and live there like his brother, he did not suggest that this was because he is a businessman and because his brother is not, or suggest that businessmen in Kathmandu face a real chance of Convention‑related harm.  He cited, as the only distinguishing factor, the fact that he is by vocation a school teacher.

That leads to paragraph 141:

The Tribunal is of the view that to a very large part, the Applicant’s reference to being a school teacher at this point was a baseless tactic to help him address the potentially adverse impression the Tribunal disclosed to him after he said that people who used to be in hiding from the Maoists are now living out in the open.

Now, “baseless” simply means rejected by the Tribunal.  On the evidence the Tribunal had rejected that at paragraph 139, and “tactic” simply disclosed that the Tribunal saw the applicant in the course of his oral evidence before the Tribunal as improvising as he went along in an attempt to get himself out of a tight spot.

That is even more spelt out in paragraphs 147 and 148.  Paragraph 147 says:

All factors considered, the Applicant indicated a number of times at the 13 August 2008 hearing that conditions have significantly changed for members of the population who did not and do not support the Maoists.  As noted, he referred to a lot of people previously in hiding being able to move at large again, and the Tribunal accepts that this claim is correct and gives weight to it.  He is sometimes said that life in the big cities is now different from life in the countryside where he said problems continue, and the Tribunal so accepts that this claim is correct and gives weight to it.  He tended to say the opposite each time the Tribunal put to him the potentially adverse inferences to which these claims might lead.  However, when he suggested that everybody who did not support the Maoists in the past faces a real chance of Convention‑related persecution in the form of physical violence, closer examination of the claim saw him making exception after exception until the claim itself became effectively meaningless.  He seemed to settle on the risk of harm occurring only in rural villages, and when the Tribunal put to him that he had moved his family to Kathmandu where his brother lives an evidently unremarkable life, he settled on the claim that his brother is not a teacher.

The tribunal has formed the view that the Applicant, at this stage –

again, in the course of the oral hearing –

was improvising claims as he went along.

That is what is meant by “baseless tactic” at paragraph 141.  Perhaps all of that could have been put together in a better form, but it is clear enough.  Justice Rares, dealing with this, at page 285, paragraph 49, said:

The husband had asserted that because of his position as a teacher he was different to his brother even in Kathmandu.  This assertion was not capable, in my opinion, of being characterised as “a baseless tactic”.  It was but a repetition of the claim that he had consistently made from the outset.

The same point, that it could not be a “baseless tactic” because it had been made from the outset, is repeated by his Honour effectively at paragraph 51 in slightly different language, and in very similar language in paragraph 58.  The answer to that is that the Tribunal quite clearly recognised, at the beginning of the relevant part of its finding and reasoning, paragraph 101, page 21, that what was being dealt with was a claim that had been made to the Department and to the RRT, and the reference at paragraph 141 is to the way in which particular oral evidence emerged during the course of the hearing.  Well enough explained and incapable, in our respectful submission, of giving rise to any of the inferences or errors that Justice Rares attributed to it.

Now, the three letters, your Honours, can be found in the appeal book at page 45, which is a letter of 20 March 2006 from the headmaster of the school in the village where the applicant had been teaching.  The letter I have just referred to is at page 81, the second letter is at page 82, which is also a letter of 20 March 2006 from the principal of the Polaris Secondary Boarding School where the applicant’s children had been in the village.  Both of those letters were submitted to the Department in support of the original claim and were the subject of the DFAT report that can be seen at page 152.

It is recorded at line 30 that DFAT contacted the headmaster of one school and the principal of the other to confirm the authenticity of the documents and the headmaster and principal of both schools confirmed that both documents were genuine.  The third letter is to be found at page 105, that is, the English translation of the handwritten letter that appears at page 104.  It appears from pages 102, 103 to have been submitted at the first hearing before the Tribunal, the hearing before the first Tribunal.

GUMMOW J:   What was the basis of Federal Magistrate Smith’s decision?

MR GAGELER:   On?

GUMMOW J:   Producing the order at 125 for certiorari and mandamus.

MR GAGELER:   Yes, I think ‑ ‑ ‑

FRENCH CJ:   There is a reference there at 41, is there not ‑ ‑ ‑

MR GAGELER:   Perhaps paragraph 37, but 41 and 42 at page – yes, 142, 143.  I have not focused on the detail of that, your Honour.  Can I deal with the way in which the current Tribunal dealt with those three letters?  If you go to page 17, this is before getting to the findings and reasons in dealing with the topic of the evidence before the presently constituted Tribunal, paragraphs 56 through to 66 deal quite elaborately with the three letters introduced by the statement in paragraph 56 that:

The presently-constituted Tribunal devoted much attention -

to the last of those letters, the one dated 18 May 2006.  Paragraph 59, for example, the Tribunal –

was troubled, however, as to why the letter was addressed to the same school from which it was sent.  This gave rise to concerns as to the reliability of the letter’s content.

Paragraph 61:

The text of this letter appeared somewhat confused -

and in the light of that, in particular, the text of the earlier letter appeared even more confusing, it is said at paragraph 64, and so on.  Then at paragraph 86, in the course of the recitation of the oral evidence, the topic of the letters is returned to – paragraphs 86 through to 92.  Your Honours might note in particular, paragraph 88:

The Applicant said the 18 May 2006 letter came to him through his brother.  He said he asked his brother to send it to him.  When the Tribunal asked him to say when he asked, he said “2006”.   When the Tribunal asked him to say when in 2006 he asked for the letter he said, “Many times.”

Then going to the findings and reasons at pages 26 to 27, the topic is introduced in paragraph 142 in dealing with:

The Applicant’s claim to the effect that he would still face harm even in Kathmandu stems partly from his claim that the Maoists have been searching for him since he left Gulmi because they suspect he spied on them to the local authorities back there.

The letters are then recognised, that is the two headmaster’s letters, at the top of page 27 as appearing to support that claim, but it is said that “the Tribunal gives no weight to it”, meaning the Tribunal rejects it.  That is the Tribunal’s way of saying “I don’t believe it” for two reasons given in paragraph 142, but other reasons that follow.  The two reasons in paragraph 142 are:

It –

that is the claim –

is undermined by the Applicant’s evidence at the 13 August 2008 hearing about the local Maoist insurgents having treated pro- and imputed anti‑Maoist teachers the same, requiring all of them to attend the training camps and incorporate the Maoist curriculum into their own.

That is one point.  The second point –

The claim also appears dependent on the Applicant’s suggestion that he had been a member of AI long enough for him to become or appear to be an activist, and this claim is already dismissed.

It is then said:

Although the Tribunal accepts that these two letters originated from the relevant school, the Tribunal gives no weight to their content in view of evidence the Applicant has presented the Tribunal over time undermining his claims about his purported political and social activism.

KIEFEL J:   In relation to the reference to “undermining his claims”, could I ask you to look at paragraph 63 of Justice Rares’ reasons just to clarify for me what his Honour says was common ground between the parties that:

this was not a case in which the husband’s evidence was so undermined that anything offered as corroboration could be treated as part of a poisoned well –

It seems to be stating something that is concurred in, but perhaps it is a question of degree.

MR GAGELER:   I will get some instructions on that, your Honour.

KIEFEL J:   Yes, thank you.

MR GAGELER:   It does not seem right, but it is not a point that I have focused on.

KIEFEL J:   No.

MR GAGELER:   What was being said at paragraph 143, in our submission – this appears really not to have been understood by his Honour – was that it was accepted that the letters originating from the schools were authentic and genuine, they were from the headmaster of the school, but accepting that they were authentic or genuine, what the Tribunal was saying was “I don’t believe their contents”; as simple as that, not satisfied that the contents were true.  What you see then in paragraph 144 is an additional reason which is really captured in the last sentence of paragraph 144 that:

the Tribunal has come to the view that both of the headmaster’s letters and their particular contents were solicited.

that is, in a sense, that it appears that the headmaster was put up to it.  Paragraph 145 then deals with the Polaris letter, and a number of things are said about the Polaris letter, but it is significant that it is hard to see the Polaris letter, on any view, as lending any weight to the claim that Maoists had been searching for the applicant, which is the context in which all of this discussion occurs.  The Polaris letter is not even accepted as lending colour of support to that claim.  Justice Rares’ discussion under various headings of these letters really suffers from two overlapping problems.  One of them can be seen in paragraph 23 at page 276 where he says that:

The third member described the letters in a way that suggested that he doubted their genuineness.

That thought then flows through elsewhere in his Honour’s judgment, but in particular at paragraph 42 where he says, page 283:

It is impossible to understand how this could be a rational decision that gave proper, genuine or realistic consideration to the appellant’s claims, or to the evidence before the third tribunal supporting them.  Any person who seeks to get evidence from their home country, from former colleagues or friends, will always “solicit” the material; that is of its nature.  Nonetheless, the second tribunal had investigated the provenance eof those letters and determined that they were genuine.

Now, his Honour does not appear to appreciate that the Tribunal could rationally and did rationally distinguish between authenticity or genuineness on the one hand and truth or reliability on the other.

FRENCH CJ:   You say simply that the Tribunal was making a finding as to probative value when it used the term “no weight”?

MR GAGELER:   Exactly, yes.  The second problem with his Honour’s reasoning is that his Honour acts throughout on his own view of the weight to be accorded to the evidence.  You see that in the language, despite protestations to the contrary, in paragraph 38.  I am looking at page 282, about line 18:

It –

that is the Tribunal –

asserted that it gave “no weight” to this powerful corroboration –

The same sort of language then appears at page 283, about line 42:

I am satisfied rather that the third tribunal was not genuinely considering the appellants’ claims as corroborated by the letters on the material before it.  It used the formula of giving material “no weight” as a basis on which it might ignore probative, relevant and highly supportive material –

Going on to paragraph 56 last sentence:

But, in my opinion, it –

the Tribunal –

was not entitled to do what I consider it plainly to have done in this matter, namely to ignore genuine, credible –

his own evaluation –

and relevant evidence –

and he adds –

without evaluating it. 

Now, in our respectful submission, earnest evaluation of this evidence is precisely what the Tribunal did and at the end of the day all that has happened is that his Honour has disagreed with the Tribunal’s evaluation.  Your Honours, otherwise we are content to rely on our written submissions.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Mr Walker.

MR WALKER:   Your Honours, in paragraph 63 of Justice Rares’ reasons, page 290 of the book, there is a reference made which can be compared with the one made earlier in paragraph 57 on page 288.  Depending on what my friend obtains by way of instructions concerning the recorded common ground at paragraph 63, may I suggest the following to your Honours?  There is, of course, no trace in the reasons by Justice Rares of it having been argued in the same way as the unsuccessful argument had been put in S20/2002 concerning an order of events, where somebody is disbelieved and that has an effect on corroborative material.

That is presumably because, as we will hope to show by going to the third Tribunal’s reasons, there was a large part of our client’s claim which was accepted.  That again may be contrasted with the position which is recorded in S20/2002.  We think that explains paragraphs 57 and 63.  We certainly do not discern any criticism of them as being erroneous in fact or in understanding of the issues by the present appellant in this Court. 

Your Honours, we are between the devil and the deep blue sea in one sense.  As soon as I go to the reasons of the third Tribunal I can be and, with respect, can appropriately be admonished by the Solicitor‑General for subjecting administrative reasons to excessive scrutiny.  On the other hand, the legal principles which we accept are common ground between the parties at the Bar table today are principles which do require some kind of standard.  Whether one gives it the word “scrutiny” may be debatable, but that may be mere style or semantics.

CRENNAN J:   In a sense, the nub of your argument is that at a certain point a tribunal’s treatment of facts gives rise to jurisdictional error because it can be said the Tribunal is not carrying out its statutory function.  So if, when you go to the Tribunal, you demonstrate that aspect of your argument, that would be most helpful.

MR WALKER:   Yes, that is what I wanted to do.  I am trying to preface it by saying that the exercise we are engaged in we accept is one where a judicial review court should be slow but not unwilling to interfere in an appropriate case; slow so as to ensure full weight is given to the allocation of the merits determination to the administrative decision‑maker, not to the Court, but not unwilling because legality is at stake, that is, acting outside or without jurisdiction.  Now, between those poles, in our submission, it means that there will be, clearly, argument possible, one cannot possibly have this is a jurisdiction of judicial review exercisable only in cases that no reasonable judge could disagree, that could not be so, rather, it is whether or not the judicial mind judicially reviewing can be persuaded sufficiently that there is a departure from acceptable modes of reasoning as required by the relevant statute setting up the administrative decision‑making, and in this case the statutory review on the merits, whether there is such a departure from that standard of decision‑making which is to be expected by resort to words such as “logical”, “rational” or “reasonable” in the sense that a reasonable person faced with the same material in the same situation could come to the same decision. 

Now, of course, we accept the onus is always to show the negative of those appropriate standards of administrative decision‑making and we accept that is where the reluctance or slow approach is going to e deployed.  Against that background, could I ask your Honours, please, to go back to page 6 of the book.  I think practically every one of the references I am about to make has already been touched on and, in some cases already in detail by my learned friend.  I apologise for the fact and acknowledge the forensic spectacle of me simply going back to the same material and saying, but that leads to the opposite conclusion from what my learned friend put. 

The theme I wish to develop in answer to Justice Crennan’s request is that the two matters fixed on by Justice Rares do in fact pervade the critical hinge of the Tribunal’s reasoning, that is, there is a great deal of acceptance of a story of what I will call “persecution”, but particularly in relation to the possibility of relocation to Kathmandu and particularly in relation to the fact that times have changed with the Maoists having become, however temporarily, democrats and in the government.  That his fear of persecution was to be tested, according to the Tribunal and, according to Justice Rares’ appreciation of the matter, by reference to the so‑called “baseless tactic” evidence, which is explaining the difference between his and his brother’s treatment by reference to his occupation as teacher and, secondly, the resort to either the one, two, or three, depending upon your way of viewing the facts, letters in question, the letters that attracted the expression “no weight” from the Tribunal. 

Now, I am bound to point out, your Honours may have observed this on even just a cursory reading of the Tribunal’s reasons, the Tribunal member uses the expression “no weight” in a number of different contexts and in contexts far more numerous than simply the letters in question, so we are not putting that “no weight” has a meaning to be understood in this document only by reference to the way in which it is used in relation to the letters.  We have to go further and say that there is a departure of a kind that we will in shorthand say was illogical or so unreasonable that no member of the Tribunal acting reasonably should have come to that conclusion in dealing with that material as it was dealt with. 

At page 6, in framing the issues by reference to the application or the so-called claim, there is a reference in paragraph 32 to the application being framed by reference to a different treatment by reason of being a school teacher – see line 35 – differentiating from his own brothers.  In paragraph 33 there is an acceptance for the purposes of the Convention reasoning that the identification as a school teacher or a businessman can contribute positively to such a claim.  In paragraph 34, that is put together with the so-called political opinion element of the Convention claim and again favourably to the availability of a Convention claim.  The mode the third Tribunal adopted was to set out as part of the section 430 statement of reasons and material the so-called evidence or, in fact, often the conclusions of fact by the first and second Tribunals and in each case to add the imprimatur of the third Tribunal’s satisfaction of the accuracy of that which had been reproduced. 

In relation to the first Tribunal therefore, one sees at page 7 of the appeal book, between about lines 33 and 55, a reference to the basal matters concerning the applicant’s political opinion being opposed to the Maoists.  At about line 38 or so there is a reference to a phase in history from about 1990.  I do not say in 1990, it commenced in 1990.  The applicant then claimed that he was also actively involved in that pro-democratic committee from the teachers’ union.  I want to draw that to attention.  No one could confuse activity of that kind, which is not rejected as we read it by the third Tribunal, with formal membership volunteered by my client of Amnesty International dating from September 2005.  The two are different matters. 

Membership of Amnesty International could not logically be seen as the precursor, a necessary preliminary step to political activity of a pro‑democratic kind.  As one might expect logically, at least equally, there would be an antecedent engagement with such issues before one joined.  That is clearly the story the applicant told in this case.  There is a departure from logic when one comes to the dating issue turning on the Amnesty International membership which was volunteered by my client when one looks at that material concerning the first Tribunal evidence. 

Could I take your Honours now, please, to page 9.  I simply draw to attention between about lines 10 and 15 you will see that at the first Tribunal there was reference to dangers in Kathmandu.  The foot of that page 9 you will find between about lines 42 and 58 a narrative which involves, just before his departure from Nepal, having been “detained by Maoists”.  You see that being referred to at line 45 and you see that he travelled to Kathmandu after that.  On page 10 at about line 35 – this is still the first Tribunal – there is a reference to the three brothers continuing to reside safely in Kathmandu, living off rent and Ghurkha pension, and then:

When asked why he feared he would not be able to reside safely in Kathmandu as his brothers did –

Now, this is in the first Tribunal –

the applicant claimed it was because his brothers were not teachers –

However one may construe – and we are obviously under the stricture not to do it too finely – however you construe the baseless tactic approach by the third Tribunal, it could not fairly or logically or reasonably, in the sense could a reasonable Tribunal so placed regard it, be treated as genuinely paying regard to the material before the third Tribunal, which was this incorporated first Tribunal material.  The incorporated first Tribunal material made it clear that it had been raised at the earliest stage in the Tribunal review of the delegate’s decision.  At the foot of that page 10 about line 65 or so, I suppose, there is a reference to:

the applicant claimed he was a ‘human rights district committee member’ in his home district; that he was an ‘active member of human rights group (Amnesty International’ –

and my learned friend has taken you, I think, to page 70 in the book which shows just that in the original typed application.  They are distinct matters and they go back to the observation we made concerning the passage that you would have seen on page 7.

GUMMOW J:   Is there any indication of the appellant’s religious affiliation, if any?

HAYNE J:   Page 9, line 27.

MR WALKER:   I am so sorry, which page, your Honour?

HAYNE J:   Page 9, line 27.

GUMMOW J:   Yes, I saw that.  Is that the only reference?

MR WALKER:   I am trying to think of any other reference and I cannot think of any I have found.  I will ask Mr Young.  I think that reference on page 9, drawn to attention by Justice Hayne, is unmistakably religious, but I do not know whether that means that is his religion, I do not know.  At the top of page 11, that is the first Tribunal hearing:

the applicant claimed to have joined Amnesty International in September 2005 –

and a membership card was, in fact, produced in respect to the second Tribunal.  In paragraph 37 on page 11 the third Tribunal, in effect, accepts and incorporates that material.  That does not mean there were findings made by the third Tribunal, but it is evidence which provides the basis against which one can ask whether there has been the requisite consideration to pass the relevant standard.

We then move to the similar exercise before the second Tribunal.  Now, here we suffer, I think, from immediate repetition because the second Tribunal does the same exercise with the first Tribunal, so I may be able to skip over some of it.  Your Honours will recognise the verbatim similarity.  There is, in particular, added on page 12 at about line 42 a quote and it is an accurate quote with respect from the material from my client concerning the Amnesty connection. 

Kathmandu as a place of danger was referred to on page 13 about line 30.  Kathmandu is also referred to by reference to the oral evidence in the first Tribunal, being adopted by in the second Tribunal, being reconsidered in the third Tribunal at the foot of page 13 about line 65 to the top of the next page where on page 14 at about line 8 the first Tribunal’s presiding member asked about living safely in Kathmandu.  There again you see the immediate, that is, the initial, the earliest possible drawing to attention of the difference between him as a teacher and his brothers.  Now, at the foot of page 14, oral evidence before the second Tribunal being referred to in the third Tribunal, you see the dating of that detention:

November 2005, he was detained for 7 days.

That, of course, is after his amnesty membership and it fits, without any difficulty at all, with the notion that having had, as you would expect, antecedent activities in the village committee pro democracy, later joining Amnesty International and he has referred to that membership of Amnesty International with reference to animus against him by the so‑called Maoists, and that of course does not have to apply to the whole of the period.  It does not logically permit a finding that he was making a claim that they knew of his Amnesty membership and used it against him five years before he himself volunteered he had become a member of Amnesty International.

I am going to come to the slide from 2000 to 2005 which the third Tribunal engages in.  In our submission it is entirely without any foundation in the evidence and we have already, by the foot of page 14, a sufficient explanation of how Amnesty International membership dating from September 2005 played a part in the narrative of persecution.  In November 2005 he was detained.  Page 15, the reference to his occupation continuing to be an attraction for harassment about line 42. 

Now, under the heading “Further evidence” in the second Tribunal being about to be, as it were, adopted - see paragraph 40 on page 15 – in the third Tribunal, there is a reference to the inquires by the Australian High Commission on behalf of the Tribunal.  I should draw to your Honours’ attention what you will see at page 147.  Bearing in mind the defence or vindication that the Solicitor‑General has today expressed, and is in their written submission, about the limits of genuine as supplied by those inquires for the letters, at page 147 you have the Tribunal’s request for research and information being sent to the Department of Foreign Affairs and Trade.  Under the heading “Background” the purpose and setting of the request is fairly plainly set out.  Third line:

The first document, apparently signed the Headmaster, appears to warn the Applicant to go into hiding.  The second document, apparently signed by the Principal, tells the Applicant that the school can no longer accept his three children –

et cetera.  Against that request, when one sees the actual question, so‑called 6A on page 148, to which you have been shown the answer, it is surely to be understood that DFAT understood that they were being asked about documents apparently signing which appear to state X, whether they were genuine.  That is surely to be understood in a sense, not that they are a genuinely signed, lying statement by a person, but they are something that the person who apparently signed can confirm is a genuine, that is authentic document, but is also the statement of that person.

Genuine, surely, in the sense of being, so far as the author of the letter is concerned, reliable.  That does not mean it would not be subject to criticism, but it would be criticism of a quite different kind that would come from showing either it was a forgery, that is not what it appeared to be, or that it was a put‑up job.  There is no suggestion, bearing in mind the request through DFAT and High Commission’s response, there is no suggestion surely possible in any logically acceptable way by reference to material that would say of the headmaster that he or she is a person who was prepared, for whatever reason, to say something which he or she well knew not to be true.

GUMMOW J:   The Tribunal was in the position of the Minister?

MR WALKER:   Yes.  The delegate, yes.

GUMMOW J:   So does that mean that the relevant date for deciding the existence of a well‑founded fear was October 2008?

MR WALKER:   Yes.  It shifts.

GUMMOW J:   I would have thought it shifts, yes.  So, however much one might go into the history of it all, why is not the critical position revealed in paragraphs 147 and 148 of the Tribunal’s reasoning at appeal book 476 and 477?  There has been huge changes in the country by August 2008.

MR WALKER:   Quite so.  I think the answer is yes, that is where it must culminate; (a) the law requires that to be so, these have to be current decisions and reviews are not artificially conducted so as to ignore things that came after.  Second, I have already referred to the relocation issue, and that is why I have been referring to fears even in Kathmandu precisely because the matter does culminate there, not only the third Tribunal’s reasons but we have to confront that as well.

GUMMOW J:   But if the situation is relatively stable in Kathmandu and that is where he has been living, is not that enough?

MR WALKER:   For a teacher, yes.  If that was something which was supported by evidence and ‑ ‑ ‑

GUMMOW J:   We had a case about the Ukraine where it was one thing in Kiev and another thing in the western part of Ukraine.

MR WALKER:   That will presumably be frequent in the circumstances which can give rise to the application of the Convention, that is, there will not be homogenous or consistent breakdown, for example, of ordinary law and order in every part of the country at the same time.  We do not dispute at all the logic of asking questions about relocation and the logic about what I will call updating material.  We have to confront that as well.  At the foot of page 15 you see the reference to the second Tribunal ‑ ‑ ‑

GUMMOW J:   What did Justice Rares say, if anything, about the significance of 147 and 148?

MR WALKER:   He does not in terms say anything about those particular passages but he does in terms ‑ ‑ ‑

GUMMOW J:   About the significance of the date of 23 October 2008 is the pivot upon which everything has to turn.

MR WALKER:   Could I just take that on notice, your Honour.  I think he does recognise that he is examining, by way of judicial review, the administrative review which itself had to proceed by reference to that date.  Certainly there is no illegitimate anachronism practised by Justice Rares; he does not throw the inquiry back to some earlier date when the Maoists were in a different position, for example ‑ ‑ ‑

GUMMOW J:   What is the date of these letters that we keep being ‑ ‑ ‑

MR WALKER:   They are 2006, your Honour.

GUMMOW J:   Yes, exactly.

BELL J:   The significance of the letters was said to be that they afforded some support for the proposition that he had been targeted by the Maoists and even in 2008 would continue to be ‑ ‑ ‑

MR WALKER:   Quite so.

BELL J:   But can I just take this up with you?  That seems to me to be also tied up with another finding that the Tribunal made concerning the suggestion of the detention for seven days before leaving Gulmi.  Now, the Tribunal simply rejected that and it offered a reason for it, apart from the issue about Amnesty International, namely that they had applied for the passports before the asserted date of detention, if I understand it correctly.

MR WALKER:   I think your Honour has captured correctly the way in which the Tribunal purports to reason.  In our submission, there is in fact no satisfactory logic in that at all.

BELL J:   One can appreciate different views might be taken but one difficulty is there seems to be no consideration of that significant factual finding made by the Tribunal which is bound up with this question of whether there were fears that he would be persecuted in Kathmandu having regard to the Maoists seeking him out for what it was he had done ‑ ‑ ‑

MR WALKER:   Or not done.

BELL J:   ‑ ‑ ‑and how he had been treated in 2006, and that does not seem to really be addressed in the judgment of Justice Rares although it is not insignificant on a view to the reasoning of the Tribunal.

MR WALKER:   Perhaps as I complete what I wanted to do with the Tribunal reasons, could I attempt to persuade your Honours, in answer to Justice Bell’s question, that the way in which Justice Rares proceeded was to single out two matters which were regarded as the means by which there was a rejection, as it were, at the threshold of the critical question of current fear including a fear if you were in Kathmandu.

It is true that Justice Rares does not engage with the detail of the, either occurrence or dating of what I will call the last detention by Maoists, but in my submission, there is in fact no evidence, and indeed no actual finding which withstands the appropriate scrutiny by the Tribunal which would displace what was said to have occurred in November 2005.

Applying for a passport with or without a pretext of visiting a sister who had just had twins, applying for a passport is explained as being an expedient to escape the persecution in question that they feared which had started at an earlier time.  There is absolutely no logic is saying that because it is said that it continues after the time you have actually manifested the fear by applying for the passport, it must have not have happened.  That is, there is no basis in reasoning for that.

BELL J:   The finding is at appeal book 24, paragraph 120.

MR WALKER:   Yes.

BELL J:   The difficulty is that is a finding rejecting certain evidence, as I understand it, given orally.  One may or may not cavil with the reasons or appreciate that another person could come to a different view, but ‑ ‑ ‑

MR WALKER:   Your Honour, if that is where it ends, then we will fail because that is in accordance with the legal principles that the parties agree on.  At paragraph 120, there are, as it were, quite a few words but they come down to what I will call temporal sequence and there is this indefensible proposition that one could not have a continuation – that is another episode in the continuation of the bad treatment, the mistreatment occurring after you had taken the step of applying for a passport in response to that fear as well as before.

In our submission, there is no reason advanced in paragraph 120, appeal book 24, for such a view at all.  It is against what I might call the nature of things and there is no other matter which to any degree, corroboratively or otherwise, could inform the Tribunal’s logical approach to the question “Was he detained in November 2005?”  Now, it has this significance in what I might call a mosaic approach and we have to be careful not to concentrate too much on individual tiles, but it has this significance that it gave rise to the equally illogical approach to the membership volunteered as being from September 2005 of Amnesty somehow belying the notion that there had been mistreatment of him on account of his so-called reactionary, meaning democratic, political opinions at an earlier time.

That is neither what the evidence said, nor the way in which the applicant presented it, nor the way in which this dating would appear, but by starting with an illogical rejection of the November 2005 detention, the Tribunal was able, as it were, to show that important parts of the entire edifice collapses. 

There is not here, in paragraph 120, anything either inherently implausible, improbable on the face of things, or a story told in such a way as to either depart from previously inconsistent statements – that is all the other indicia of why you would simply disbelieve what somebody says in the way in which that idea was considered by Chief Justice Gleeson and Justices McHugh and Gummow in S20/2002.

GUMMOW J:   Was there before the third Tribunal a country information – up‑to‑date country information?

MR WALKER:   There was some but I do not think there is anything that is referred to either in the Tribunal’s reasons or in Justice Rares’ either – something in Justice Rares’ that in particular makes the matter more detailed concerning the danger on account of previous exciting of hostility of the Maoists in the country now in Kathmandu.  That would obviously go to the matter of the relevant question for the Tribunal. 

GUMMOW J:   I mean the revolution has arrived.  One usually would ask, what has happened now, and one would be assisted by being told something by Foreign Affairs.

MR WALKER:   We placed material before the Tribunal which includes so‑called independent reports.  Your Honours will have seen that reference in paragraph 43 on page 16 of the appeal book.  Other material relied upon us – see paragraph 47, “newspaper and other reporting” – was updating in its nature.

FRENCH CJ:   At 45 there is a reference to the current situation, is there not, in terms of the currency before Tribunal?

MR WALKER:   Yes.

CRENNAN J:   At 30 there is a reference to the Maoists having the parliamentary majority in Nepal.

MR WALKER:   Yes, so there was material updating the position from when Maoists were unlawful guerillas to Maoists being the largest party in the Parliament.  That was updated, but the Tribunal does not make a finding; presumably there was not material before the Tribunal, that people were not long at risk from what I will call extra‑legal mistreatment at the hands of Maoists.  There was certainly evidence from my client to that effect.  The Tribunal does not refer to country information.

GUMMOW J:   I mean it is not very satisfactory.  You would need to know what was the current situation of members of the Royal Nepal Army - what happened to them?  They are quite numerous I should have thought ‑ ‑ ‑

MR WALKER:   Your Honour, I should not assent to the notion that the treatment of the royal family might necessarily be of any particular use to a school teacher and small businessman but, with great respect, your Honour’s observation that the Tribunal information and that which Justice Rares was judicially reviewing did not have what I will call official source, perhaps diplomatic source country information concerning whether the threat of reprisal by Maoists for the past was gone, but we are entitled, surely, to rely upon the fact that the Tribunal did not have that material and certainly did not make findings to that effect when one considers that the critical thing here was that my client was disbelieved in the proposition that there continued to be, at the time he was speaking to the third Tribunal, risks of the kind that he referred to.  Rather, the Tribunal decided to deal on the basis that there were concessions that for some people things had changed, even for many people things had changed, and there is the reference to the brothers in Kathmandu to which I will come.  In order, as it were ‑ ‑ ‑

HAYNE J:   But the whole of the history that you emphasise as recorded by the Tribunal, for the Tribunal member approaches this on the footing that it is appropriate to record all that has gone before in previous successive hearings, culminates, does it not, in 145 on page 27 where there is reference at about lines 45, 46 “to the recent’ – “chance it reads – recent change “in the socio‑political map in Nepal” and to the conclusion at the last sentence on 146?

MR WALKER:   Yes. 

HAYNE J:   Now, your attack ‑ ‑ ‑

MR WALKER:   That is the children, of course.

HAYNE J:   Paragraph 146, last sentence, I had not read as so limited.

MR WALKER:   I think it is, your Honour, with great respect:

The Tribunal gives weight to the fact that the Applicant’s children are all attending private schools in Kathmandu, and facing no pressure from the Maoists.  The Applicant has not satisfied the Tribunal –

the applicant, that is singular –

that their situation as students –

the only people who are students are the children –

and resident of Kathmandu is in any even remote danger of changing.

That last sentence is not – neither of my clients, that is father and mother, are not students, it is the children who are students and, for good or ill in our case, the difference between the position of the children whom he have placed in Kathmandu under the aegis of their uncles in private schools is distinguished from the parents.

GUMMOW J:   You have to read 145 with 146, have you not?

MR WALKER:   Yes, and, with respect, it goes on to 147 and 148.

HAYNE J:   I think we are at cross‑purposes.  I was drawing attention to 146, the last sentence.

MR WALKER:   I am so sorry, your Honour.

HAYNE J:   I probably misspoke but, however it emerged, that was what I was wanting to draw to attention.

MR WALKER:   Quite so.  The last sentence of 146 is a generalised conclusion.  It seems to go beyond Kathmandu, but I am not taking that point.  It is not available for me.  The last sentence of 146 would appear to be, as the first word of 146 indicates, a pulling together of all the strands, I think.

HAYNE J:   What is the connection you seek to draw between what you say is an inappropriate treatment of what has happened in the past, in particular, the dismissal of the significance of the letters, what connection do you draw between that and this conclusion at 145, 146 which is a temporal conclusion, a conclusion that things have so changed that now, whatever caused you to move in the past, does not indicate real chance, et cetera?

MR WALKER:   Could I add to what your Honour has just put?  Your Honours will all have seen the emphasis given by the Tribunal typographically to the expression “at the time” at about line 59 on page 27.

HAYNE J:   Yes.

MR WALKER:   That is in accordance with what Justice Hayne has asked me.  Your Honours, we have to rely on this, that the 2006 letters were talking about a position which plainly, according to the writers of the letters, did not expire in 2006, that is, these letters were not simply talking about something that was no longer threat, they were future oriented.  They were talking about staying in safety, staying in a safe place, staying in protection.  So that in 2006 there was a perception treated as having no weight at all, notwithstanding genuineness, by the Tribunal.  That is the first point.

The second point is that in relation to the current position about which my client was asked questions by the Tribunal, so it is totally up to date, the current position in Kathmandu by reference to the apparent safety or security of the brothers, that was also treated as of no weight, notwithstanding the information that was accepted by the Tribunal about teachers generally and anti‑Maoist teachers in particular being bundled off to boot camp along with those who enjoyed it, being threatened to donate, even if they did not want to.  That is treated as a baseless tactic, notwithstanding it had, as Justice Rares correctly identified, been from the earliest, and consistently, the position that had been taken concerning the difference between him and his brothers.

It is, in our submission, an appropriate reflection in Justice Rares’ approach of the importance of those two factors which, in our submission, as to the second, plainly is right up to date, and as to the first, the letters, is for some period, beyond, obviously, some sensible period, beyond the time when the letters were written.  The letters bespeak some indefinitely, then continuing, threat corroborated by those genuine documents and the reference to a difference between teachers and others in terms of possible reprisal from Maoists is completely up to date.

I should draw this to attention in further answer to Justice Gummow.  Page 16 of the appeal book, paragraph 50, about line 60, there is there the converse of what Justice Gummow was asking me about, there is a reference to an argument about the second Tribunal and the absence of country information, so it does appear as if there – I will not say there were gaps in the information, I am just saying, it does appear that the question of what the country information revealed or did not reveal was attended to, but not in a way where we can see any finding about what I will call a comprehensive view of the easing of a situation which might formally have given rise to Convention fears.

GUMMOW J:   The second Tribunal’s decision is in 27, is it not?

MR WALKER:   Yes.  Now it was set aside for what appears to be want of findings, curiously called, or in the alternative an assumption – the want of a finding or assumption of the threats.

FRENCH CJ:   That was the note to the consent order, I think, was it not?

MR WALKER:   Yes.  On page 17 my learned friend has already drawn to your attention the passage commencing in paragraph 56 in relation to the letters.  There are matters such as in paragraph 59 that are said to give rise to troubling concerns.  In our submission, bearing in mind what had been done by way of inquiring about those letters there is no evidentiary basis for this.  As for the confusion of text, leaving aside that which needs to be adjusted for by either imperfect translation or imperfect original English, one way to gauge the matter is with what the ease the request from the Tribunal to DFAT was able to point out that the gist of the headmaster’s letters, in particular – that is the two letters called the headmaster’s letters – was pretty plain.

FRENCH CJ:   Can I just understand the nature of the attack you make on the finding in relation to the letters at 143?  First of all, there is the proposition that there is no basis for the implied finding, if not explicit finding, that those who signed the letters, being the headmaster of the relevant school, were telling falsehoods?

MR WALKER:   Yes, were genuinely telling lies.

FRENCH CJ:   Yes, right.  Secondly, my impression was you were trying to attack the premise upon which the “no weight” finding is based, that is that the evidence of the applicant presented to the Tribunal over time undermined his claims?

MR WALKER:   Yes, I am coming to that and I have been touching upon some of the components of it as I go through, including this question of timing in relation to various events he had suffered at the hands of the Maoists.  On page 19 - I come to one of them now - in paragraph 73, not for the only time, the Tribunal refers to what the Tribunal later sees as a fatal either vacillation or inconsistency in the applicant’s position, namely whether non‑Maoists and Maoists are treated indifferently.  With respect the logic of the matter was easily enough seen ‑ ‑ ‑

GUMMOW J:   Now, wait a minute.  Your client had arrived here in April 2006?

MR WALKER:    Yes.

GUMMOW J:   What is the temporal connection with paragraph 73 at page 19?  What happens?  He would not know, directly.

MR WALKER:    To be fair to my client, your Honour, the Tribunal is putting questions to the applicant seeking answers.

GUMMOW J:   I know.

MR WALKER:    Yes.  But there is another logical problem.  To treat people, regardless of their political opinion, in a way which is bad treatment or mistreatment for those of one political opinion, though it might be very welcome and enjoyable for those of another political opinion, is not to treat them indifferently and certainly can arouse, as in fact the Tribunal finds, together with threats of physical violence for want of co-operation, concerns under the Convention.  Neither, when one looks at paragraph 73 again not the only place in the reasons about line 10, is it a legitimate or logical way of approaching evidence by saying that if you cannot show:

that all non‑Maoists everywhere face serious relevant harassment –

then the Convention fear disappears.  Then in paragraph 74 there is one of the earlier references by this Tribunal – this is all now in the third Tribunal – about the brother in Kathmandu and first reference at this point about adverse commentary by the Tribunal to the explanation proffered of the brother not being a teacher.  There is, in paragraph 75, admittedly imperfect but such is the way of these things, reference to some updating material, second reference to this material, I think, by the applicant concerning:

certain local Maoists groups continuing practices of intimidation in some villages.

That is picked up later, contrary to the applicant, by the Tribunal in referring to the local effects rather than Kathmandu.  There is then paragraph 76 what we think, certainly as one sees it expressed at the moment, appears to be for the Tribunal the main reason, perhaps the only reason from the expressed reasons in the statement of reasons, for dating the mistreatment at the hands of the Maoists as starting in 2000.  What one sees there is these are the demands backed up by the threat of violence to make donations, that is, revolutionary taxes, and that is found to give rise to Convention fear, et cetera. 

I draw to attention that if one were to use, as is later used, the word “program”, that would appear to be the earliest, that is 2000, reference to it and we think it is the clearest reference in these statement of reasons by the Tribunal.  You will see how that expands to a supposed explosion of an improvised and obviously, according to the Tribunal, mendacious approach by my client thrown up by his volunteered September 2005 membership of Amnesty.

In paragraph 77 we have another reference to the treating all alike.  Again, there is no logic in the notion that if I support a party and I am happy to give them money, the fact that those who do not support the party and have to be threatened with violence in order to give them money, are not on that account, being persecuted.  Paragraph 81, again going back to the matter that Justice Gummow has just raised, one will see again that the third Tribunal is putting to the applicant, asking the applicant to respond to the Tribunal’s suggestion that:

the cities at the least are safe from this kind of practice –

That kind of practice includes, apparently – see paragraph 78 – forcing to train and demanding donations, and the Tribunal had asked the applicant to comment on the suggestion, in effect, that times have changed with the Maoists’ ascendancy – see paragraph 78.  There had been a reply in paragraph 79 concerning a recent teacher kidnapping to which the Tribunal records the riposte by the Tribunal that is one, in effect.  Then one sees there a reference to the word “programmes” which is redolent of what is later found by the Tribunal.

Could I, on page 20, draw to attention in paragraph 89 there is a passage – perhaps this has merely been recorded for completeness of the procedural history, but there there has been recorded what appears to be the Tribunal cutting across what is finally accepted, namely, in one sense at least, if not the sense we put it, the genuineness of the documents because there is a reference to the Tribunal making a suggestion about it being “easy to obtain false documents”.  Can I just draw to attention that that is independent country information that the Tribunal was putting to the applicant dated 18 May 1998.

FRENCH CJ:   No finding emerges from that though, does it?

MR WALKER:   No, we do not think so, so it may be that that is simply recording historically a process.  Paragraph 91 in particular, picking up what the Chief Justice has just noted, paragraph 91, which just sits there as to my client’s position, is nowhere, we think, later subject to what might be called an evidence‑based or a factual‑finding‑based refutation.

HAYNE J:   It is treated by the last sentence in paragraph 92 in part, the applicant’s acknowledgment that things have changed dramatically.

MR WALKER:   Yes.  Sorry, we may have a crossed purpose again, I am sorry, your Honour, but that does not go to the proposition in paragraph 91 that “letters were truthful and genuine”.  Their content may, of course, have some difference, not least because they might reflect different things.

Now, under the heading “Findings and Reasons”, paragraph 100, true, it is only a recapitulation and it should be seen as something in the nature of a summary and not too much should be made of it, but it is an unfortunate compact elision of the difference between a teacher who was pro democracy and at the village level and somebody who later joins Amnesty International.  In our submission, that is perhaps the source of an illogicality that I have already referred to concerning the rejection of the fears based upon his pro-democratic position.

Over on page 22, in the list of matters which are accepted, one finds some Convention findings in 111, some findings concerning the obligation to attend occasional training camps, paragraph 112, so my client’s account has not, as it were, been destroyed by the inquisitorial process and testing so as to throw out every component of it but immediately there is one of the early uses of the expression “no weight” and that is by reference that the targeting because of perceived support for democracy or an active member of a human rights group immediately is tied back to the idea of the local Maoist insurgents began their programs at his school back in 2000.

Now, on the findings and the material, that logically could only apply to what I had referred to in paragraph 76, the program of forced giving.  That, with respect, simply is not belied in any way logically.  There is no fair approach to the material taken rationally by the observation “whereas he did not join Amnesty International until September 2005”.  That really has nothing to do with it, whatever.  It does not answer the position that he had earlier stated and the Tribunal does not deny that he had had pro-democratic activities before he joined Amnesty.

Indeed, there is no material possible to justify the proposition that this is a man who presented by saying, “Since 2000 I have been doing something which required membership of Amnesty International.  By the way, I joined Amnesty International in September 2005.”  It is absurd and, with respect, illogically unfair for the Tribunal to have taken, it would appear in paragraph 112, that approach, but on what is called “this evidence” in the next sentence the Tribunal then proceeds again to give:

no weight to the suggestion that the Applicant’s claimed pro‑democracy, pro‑human rights activism had anything to do with the local Maoist insurgents requiring him to attend teacher training camps.

Before we get to the last sentence of paragraph 112, that appears in terms to be tied entirely to this dating of Amnesty International membership which, in our submission, is irrational.  The last sentence of paragraph 112 does nothing to rehabilitate its illogical reasoning.  The notion that there is a “generic schools program” is of course the very reason why forcing everyone, regardless of their opposition to political program, can be a Convention matter.  Page 23, paragraph 114, again we have the conclusory and adverse expression of no weight being given – see about line 11 – to the Red Cross membership as well.  Again it is illogically based upon the basis that everybody got to go to the training camps and incorporate Maoist curriculum.

Paragraph 115 includes, at least in the second sentence, an acceptance that there was something that could, as the Tribunal puts it, subjectively feel persecutory to anti‑Maoists.  Then there is the commencement of reasoning in the next three or four paragraphs which, in our submission, continues, compounds and renders really very important in the adverse decision against my clients this irrational reliance upon the Amnesty International membership date.

CRENNAN J:   But is not the real nub of the decision being adverse to be found in 115 at about two‑thirds of the way down that in relation to ‑ ‑ ‑

MR WALKER:   The “significant changes”, your Honour?

CRENNAN J:   Not only that.  There is the reference to the two years since the cease fire and the significant changes, but perhaps, more importantly, that the only evidence the applicant provided of the practices about which complaint was made were examples from remote rural areas and then the observation that there must be tens of thousands of school teachers in the bigger cities.

MR WALKER:   Yes, that is ‑ ‑ ‑

CRENNAN J:   So that is much more important to the reasoning process, is it not, rather than matters of detail in relation to Amnesty International and when the passports were obtained and so on?

MR WALKER:   Your Honour, it follows from the same matters that I referred to in answering Justice Gummow’s question about that matter.  My answer to you has to be yes, this a review that has to be pertaining to current day Nepal.  I accept that.

On the other hand, when one is talking about material which is the material upon which my clients relied as to one of which is about the up‑to‑date material, why would you feel unsafe in Kathmandu, and as to the other which is about material which would continue, at least for some time, intended to continue for some time after 2006, the headmaster’s letters, in our submission, there has been the departure from the proper standard of consideration when one has then treated in the fashion that I have been trying to ‑ ‑ ‑

GUMMOW J:   Did Justice Rares address paragraph 115?

MR WALKER:   There is some reference by him.  I am looking at page 278.  I think paragraph 29 is a recitation by his Honour of that finding.  It is certainly 115, I think it is only 115, although the matter is referred to later by the Tribunal.

HAYNE J:   The real sting comes in the notion of backtracking and being disingenuous; see 116.

MR WALKER:   That is what I am trying to deal with what I have got to deal with.  In our submission, it was illogical and thus, in a very general sense, unfair in a way that means no reasonable Tribunal should have done so, given this material, to have converted this very dubious reasoning by the Tribunal into a reason to regard my client as, in effect, setting out to deceive the Tribunal.  Paragraph 117 has further explanation of that adverse conclusion Justice Hayne has noted in paragraph 116.  Paragraph 117 starts off – perhaps we should all be warned when we see the phrase – “To the extent that”.  Well, there is no material to show that the applicant argued that he was treated harshly due to his membership of Amnesty International in years before he belonged to Amnesty International; to the contrary.  That is a construct by getting rid of that part of his evidence about detention following Amnesty International.

It is completely illogical to use that as setting up some straw man in the applicant’s case concerning targeting.  There seems to be little doubt, there seems to be an acceptance of something in the nature of having so‑called reactionary political opinions, meaning pro‑democratic.  This elision of the distinction between that and later joining Amnesty International has caused, in our submission, ongoing difficulties for the reasoning and it caused, according to the Tribunal, the Tribunal to have significant concern in the thinking process which is, after all, meant to be revealed under section 430 by this document.

GUMMOW J:   In fact, the last sentence of 115 is unnecessary, in a sense, to the conclusions that precede it.

MR WALKER:   It seems to be an added extra, yes, your Honour.  One of the difficulties, however, with the approach of observing, well, there simply was not material up to date, is that this Tribunal seems to have taken on – and I do not criticise the Tribunal for this – inquisitorially, as it were, inviting the applicant to supply what the applicant could about the absolute up‑to‑date position.  So no doubt it would be curious for the Tribunal to have said, well, there is simply no material, bearing in mind that he had elicited some statements from the applicant about the up‑to‑date position.

One sees again this reference to the word “program” for the Maoists, line 50 in paragraph 117 on page 23 of the book and that, in our submission, plainly is a continued, and by now, bearing in mind the explanation being offered for rejecting the reliability of my client as a witness, now very serious central element of the reasoning of the Tribunal.  That is, in our submission, completely illogical to end up, as it were by saying, “Aha, you have produced your membership card, that is 2005.  This program is 2000.  You are the one who is illogical.  You must be trying to deceive me.”  In our submission, there has been a jumping off the rails very early of a kind that rationality would require in the Tribunal’s approach.  Thus, the words of conclusion in the last sentence of paragraph 117, at about line 55 on page 23, should be seen as seeking to describe the effect of this fallacy concerning AI membership rather than some more generalised view of the evidence. 

Page 25 in paragraphs 130, 131, 132, one has findings which plainly involve acceptance of a deal of the heart of my client’s claim.  That is again why this is not a “I just do not believe anything he says” case.  This is not a “He told me a pack of lies, therefore the purported corroboration can go nowhere”.  Page 26, the same is true in relation to paragraphs 135, 137.  Then we come to not so cheerful findings for us, paragraph 139, and I draw to attention the emphasis that should be seen in the last word on the first line, that is “currently” and then the second sentence about “a school teacher in Kathmandu or other large cities”.

In our submission, that must be related to the explanation which follows in paragraphs 140 and 141, among others, and it is in 140 and 141 that one has this illogical assertion that there is a “baseless tactic” “at this point” without any adequate consideration being given to the fact that this was a consistent and, from the earliest point, distinction between him and his brothers, that my client had offered. 

To describe it as a “baseless tactic” “at this point”, or as my friend put it this morning, that the Tribunal obviously thought my client was improvising to get out of a tight spot, all that could be said was that the so‑called improvisation was to play the same song as had been sung from the beginning, and the tight spot was that which was apparent from the very beginning.  You have to persuade us that you, a teacher who has run up against the Maoists in the past in the country would now, in the present, in Kathmandu, face such difficulties, and of course that is still the position in this Court, though not on the merits.

In our submission, in relation to that exercise, it is plainly informative of the Tribunal’s approach to have stigmatised as a so‑called “baseless tactic” for him to raise the distinction between him and his brother’s occupation at this point.  If we are right in showing that that was bereft of an appropriate basis in the procedural history and substantive narrative that had always been given by my client then, in our submission, the importance of the point, according to the Tribunal’s reasons, is a reason why Justice Rares’ approach should be upheld.

Now, paragraph 142 is, of course, in the same sequence.  The claim is, after all, the claim which is at the heart of the matter, but why in Kathmandu with your history and your occupation, given your brother’s safety there, given the fact that you have lodged your children there, why the Convention fear?  That appears to be what is referred to by this claim at the top of page 27, namely, Maoists searching for him, even still face harm even in Kathmandu “because they suspect he spied on them to the local authorities back there.”  

Now, there is a recognition of the capacity of the letters to support.  To that extent, it would be difficult to support some readings of some of the statements in Justice Rares’ decision which might in isolation – I stress in isolation – appear to suggest that his Honour thought that the Tribunal had simply put these letters to one side altogether without appreciating their importance.  Properly understood, his Honour’s reasons are that the Tribunal had seen that these were important but had no reason, supplied by the statement of reasons, for, as the Tribunal says, giving no weight to it. 

Now, it – that is the claim – it is said in paragraph 142 at the top of page 27, was said to have been undermined by various matters.  The matters include, first, the oral evidence before the third Tribunal about the supposedly indifferent treatment of people pro or anti-Maoist.  That suffers from the logical problems that I have already sufficiently addressed.  Secondly, there is a reference to appearing dependent on the applicant’s suggestion he had been a member of Amnesty International long enough for him to become or appear to be an activist.  It said that claim, meaning assertion or evidence, is already dismissed because, as we have said, that is a straw man constructed not out of anything that my client had said, but out of an ‑ ‑ ‑

BELL J:   I think it is a straw man from appeal book 70 at about line 35.

MR WALKER:    Yes.  It may, your Honour, even turn on something as artificial as, what does it mean in a sentence without a semicolon to use the conjunction “and also”.  The “and also” comes later.  He is the one who volunteered how much later it came.  He said “and I have been detained after that date”.  That fits the “and also”.  That is where it comes from, yes.

Paragraph 143 is the acceptance by the Tribunal of what DFAT had supplied.  They originated from the relevant school, bearing in mind the Tribunal’s own request to our diplomats.  In our submission, the response that they were genuine really surely amounted to more than originating from the relevant school.  For the purposes of judicial review what mattered, as Justice Rares rather forcefully and slightly repetitively points out, is that there was no material before the Tribunal to justify this dismissive approach to these documents about which, after all, the Tribunal had put in train appropriate inquiries.

Paragraph 144, that matter is, in our submission, compounded and the importance that can be seen from the earnestness with which the Tribunal sets this material out by reference to the notion of letters being solicited.  That, in our submission, also contains the perhaps unarticulated but plainly implied proposition that they were corrupt in the sense that they appeared to be official statements by people who would have some knowledge of a position that was relevant but in fact they were lies, that is, they were not to be regarded as reliable.  It is said even that my client’s bona fides are doubted by reference to the inconsistency of evidence concerning the provenance of the letters, the role of his brother, et cetera.

In paragraph 145, although it refers to the so-called Polaris school letter, for present purposes what probably most much matters, is as Justice Hayne has raised with me in relation to this paragraph, it relates to the difference between action undertaken in the past in a particular location and what might be called the recent change.  It is not chance, although it might be chance of course - the recent change in the socio‑political map in Nepal.  In our submission, the last two sentences of paragraph 145 do not, of course, amount to a refutation of my client’s position.  To be fair to the Tribunal, maybe the Tribunal is not saying it does. 

In paragraph 146, there is the drawing together of those threads, in the next two paragraphs as well.  In our submission, the conclusion - we know that there is a conclusion rather than, as it were, fresh findings of fact being made here because of the first word of 146.  The conclusion in 146 and, for that matter, 147 and 148 where there is a recapitulation of earlier observations by the Tribunal, all of that can be seen by the statement of reasons to depend, to a very large measure, to a predominant measure, on the way in which the materials relied upon by my clients have been put to one side as having no weight. 

In paragraph 127, there is, as it were, a curate’s egg approach taken by the Tribunal and none the worse for that, I accept, to material emanating from my client.  So the Tribunal attaches weight, or gives weight, to use its expression, to that part of the so-called claim which talks about a lot of people previously in hiding being able to move at large again, for example.  Why logically that should mean that my clients could not be in an exception to that happy situation for a lot of people does not appear in anything the Tribunal thereafter says. 

There is a statement, line 10, he tended to say the opposite, that is the opposite of life is now different - in the big cities is now different from life in the countryside, each time the Tribunal put to him, but again, as we have pointed out, from the very beginning the risk to him in Kathmandu compared to the now happier state of affairs for others in Kathmandu, including his brothers, had been a consistent position put.  There is no inconsistency.  There is no chopping and changing.

Then, in our submission, there is a complete lack of justification and a real irrational unfairness in the language of the last line of paragraph 147, line 20 on page 28, where the Tribunal goes so far as to say that my client “settled on the claim that his brother is not a teacher” as if there had been some more mobile approach to that proposition at an earlier time and

finally, pushed by the exigencies of the Tribunal’s cross‑examination, as the Tribunal obviously saw it, my client had unmeritoriously chosen from an available suite of possibilities.  Well, that is just the opposite of the fact.  There is no basis for that.  It is illogical and irrational to proceed in that basis. 

That is why the damaging conclusion, the adverse description in paragraph 148 about improvising claims as he went along is, in our submission, an extravagance of language showing, in our submission, that lack of a dispassionate approach to the matters before him which justified Justice Rares as well in the approach to apparent bias, which his Honour took.  May it please your Honours.

FRENCH CJ:   Yes, Mr Solicitor.

MR GAGELER:   Just two things, your Honours, more directly in answer to questions from the Bench, then in answer to my learned friend’s submissions.  Your Honour Justice Kiefel asked me about what was common ground as recorded at page 290 in paragraph 63 of Justice Rares’ judgment.  What is being referred to there is what was common ground before the magistrate and that appears from page 251, paragraph 80.  This is no doubt an overuse of a metaphor that comes from Plaintiff S20, but what is recorded there is:

Ms Wong agreed with Mr Young’s submission this is not a “poisoned well” case.

Apparently the parties had in mind that in a “poisoned well” case, you might actually get to the point where the Tribunal is under no obligation to assess evidence at all, and the submission goes on:

However, she submits that the Tribunal did not ignore or dismiss corroborative evidence presented –

but actually assessed its probative value.  That is dealt with by the magistrate then at pages 255 to 256, where at 256, line 20, that whole line of argument is dealt with by the magistrate saying:

I am satisfied that the Tribunal did not treat this as a “poisoned well” case and gave proper and genuine consideration to the contents of the headmaster’s letters.

Your Honour Justice Gummow, asked about the country information such as it was before the Tribunal.  At page 16 of the appeal book in paragraph 43 there is a reference in the second sentence to the submission received by the Tribunal, just before the hearing on 13 August, comprising:

118 pages of independent reports most of which described the Maoist insurgency and the authorities’ response to it.

That 118 pages was part of the appeal book before Justice Rares and it contained very up‑to‑date country information.  Indeed, it appears 2007, 2008 right up to August 2008.  At paragraph 44 it is recorded that:

The Applicant’s submission also included a 13‑page covering letter from his adviser.

And in paragraph 45:

The Applicant also provided written arguments as to where his case now stands in the wake of the creation of a new Constitution –

So very much the applicant’s case before the Tribunal was seeking to focus on the right question, that is the right time ‑ ‑ ‑

HAYNE J:   The letter from the adviser seems to be item 33 at page 177, but the country information is marked as not reproduced?

MR GAGELER:   No reproduced.  If your Honours would be assisted by the country information we can easily provide it.

HAYNE J:   There seem to be three references in the index, Mr Solicitor.  Item 33, item 36 and then item 42 is an email enclosing country information. 

MR GAGELER:   If your Honours would be assisted by it we can certainly provide it, but his Honour Justice Rares placed no emphasis on it.  What is usefully drawn from it is the point that your Honour Justice Crennan has already drawn attention to in paragraph 43 of the Tribunal’s reasons - I am sorry page 23, paragraph 115.

HAYNE J:   For my own part, I would find it of some assistance or possible assistance to have the information, Mr Solicitor.

MR GAGELER:   We will provide it, your Honour.

FRENCH CJ:   That is items 33 and 42.  The reference to item 36 is to untranslated materials.  We probably will not find that of great assistance.

MR GAGELER:   We can provide whatever your Honour wants.

HAYNE J:   So long as it was before Justice Rares.

MR GAGELER:   Yes, of course.  We will provide that.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Solicitor.

MR GAGELER:   I was going to say something more, but it is ‑ ‑ ‑

FRENCH CJ:   Yes, please go ahead.

MR GAGELER:   No, it will not assist.  I am stopping.

FRENCH CJ:   Then it is better not said then.  Yes, all right.  The Court will reserve its decision.  The Court adjourns to 9.30 tomorrow morning for pronouncement of orders.

AT 12.17 PM THE MATTER WAS ADJOURNED