Puerta v Minister for Immigration and Multicultural Affairs

[2000] FCA 1552

FEDERAL COURT OF AUSTRALIA

Puerta v Minister for Immigration & Multicultural Affairs [2000] FCA 1552

IMMIGRATION – application for protection visa – citizen of Peru – former army officer involved in anti-terrorist activity – claim of well-founded fear of persecution by terrorists if he returns to Peru – claim of inadequate protection by Peruvian government – alleged bias by Refugee Review Tribunal – failure to make findings of fact – error of law in assessment of well-founded fear – application dismissed.

Migration Act 1958 (Cth)

Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71 cited
Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 followed

JULIO ABEL RUIZ PUERTA and GUADALUPE DEL PILAR MARQUEZ ALTURA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

FRENCH J
2 NOVEMBER 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 179 OF 2000

BETWEEN:

JULIO ABEL RUIZ PUERTA
First Applicant

GUADALUPE DEL PILAR MARQUEZ ALTURA
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:

FRENCH J

DATE OF ORDER:

2 NOVEMBER 2000

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The Applicants are to pay the Respondent’s costs of the application.

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	N179  OF 2000

BETWEEN:

JULIO ABEL RUIZ PUERTA
 First Applicant

GUADALUPE DEL PILAR MARQUEZ ALTURA
Second Applicant

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:	FRENCH J
DATE:	2 NOVEMBER 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1. Julio Abel Ruiz Puerta is a citizen of Peru who was born on 25 July 1964. He entered Australia on a visitor’s visa on 20 November 1997 accompanied by his de facto wife Guadalupe del Pilar Marquez Altura. On 7 January 1998 they lodged applications for protection visas with the Department of Immigration and Multicultural Affairs. A delegate of the Minister for Immigration and Multicultural Affairs refused to grant the visas on 7 April 1998. On 5 May 1998 Mr Puerta and Ms Altura sought review of those decisions in the Refugee Review Tribunal. On 9 February 2000 the Tribunal affirmed the decision not to grant protection visas. Mr Puerta and Ms Altura now seek review of the Tribunal’s decision under Part 8 of the Migration Act 1958 (Cth).

   Factual Background

2. Mr Puerta joined the Peruvian Armed Forces in 1982.  From 1982 to 1986 he studied engineering at the Officers’ Military School in Lima and graduated as a Second Lieutenant Engineer in 1986.  He undertook a counter-terrorism commando course.  By reason of his specialist qualifications he was assigned to fight terrorists in remote areas and in Lima for the whole of his army career which lasted until October 1997 when he retired.  His counter-terrorist activities involved fighting the revolutionary movement Tupac Amaru and the Sendero Luminoso also known as the Shining Path.  From 1992 to 1997 the bulk of his activities were directed against the Shining Path.  In December 1993 he was awarded a merit certificate, the “National Pacification Hatband”, for his contribution towards the peace in Peru. 

3. According to Mr Puerta he began to suspect that he was being targeted by terrorist groups in Peru in 1990.  He gave evidence of an incident which occurred when he was in Lima while undertaking an engineering course.  He returned home one night and noticed four individuals acting suspiciously near his residence.  They appeared to be waiting for him.  As a police patrol guarding the house of a minister who lived nearby was in evidence he entered his house without any difficulty.  He reported the incident to his commander who assigned police to patrol his residence but later suggested he return to barracks while in Lima.  The Tribunal received a copy of a report which Mr Puerta had made to the head of security at the army engineering school on 30 September 1990.  He told the Tribunal that the incident concerned him because of the killings of serving army officers.  He became increasingly aware of those around him and commenced carrying arms.

4. The next incidents that he relied upon occurred in August 1994.  While posted in Lima, he began to receive threatening calls and leaflets.  The threats consisted of five to ten calls and two to three pamphlets apparently printed by the Shining Path Movement and containing a photograph of the Shining Path leader Guzman.  His de facto wife on the other hand told the Tribunal that there had been some twenty to twenty-five calls and perhaps five pamphlets but she was not sure.  The pamphlets had been forward by Mr Puerta to his superiors.  They were not available at the time of the Tribunal hearing.

5. As a result of the August 1994 threats, Mr Puerta and his de facto wife shared army accommodation with one of his colleagues in Chorrillos.  At the end of 1994 they moved to his de facto wife’s parents home which was also in Lima.  Mr Puerta began to worry about his safety and his future.  He was concerned about the lack of stability in his life as he had been posted from one place to another since graduating.  On sharing a house with his army colleague between August and December 1994 he had not experienced any continuing problems.  The accommodation however was part of an army installation and he worked next door.  His aunts continued to receive calls for a while but with less frequency.

6. In 1995, Mr Puerta said he was assigned to an engineering battalion based on the outskirts of Lima.  His de facto wife stayed at home with her parents and he would go there on weekends.  He said that she continued to receive phone calls while he was away and that on occasions he would receive them at home while on leave.  For the first three months at his in-laws they had no calls but then calls started around March 1995.  There would be two or three a week and this continued for most of the year although on some occasions there would be no calls for a couple of weeks.  The callers would tell his de facto wife that she would become a widow but did not identify themselves.  Mr Puerta told the Tribunal that the suburb in which his parents lived was safe.  The US Embassy and the US Airforce Base were located there and many senior military navy and diplomatic personnel lived there.  He looked after himself by being armed and alert.  The house was part of a condominium which had an electronic gate and three security people.  In 1996 the calls became more sporadic while he was posted at Gueppi.  The calls to which he referred in that year were to his de facto wife at her home in Lima.  He did not himself experience problems then but did not trust anyone.  His de facto wife told the Tribunal there would be calls each week on a daily basis and then for some time no calls.  They continued for the whole of the time she stayed with her parents.  They had the same phone number during the whole period.  She did not give a thought to the calls and did nothing about them as she did not want to give the callers any information.  They would be offensive and tell her she was a whore living with a murderer.  They would sometimes identify themselves as Shining Path.  She continued working as usual.  Sometimes a driver from the business at which she worked would pick her up and at other times she would get a lift from a friend.

7. In June 1997, while Mr Puerta was in Lima on a mixture of duty and leave he was asked by a superior officer to get some spare parts.  He claimed that while visiting a friend people he presumed to be terrorists attempted to kidnap him as he was returning to his parked car outside a friend's apartment.  He said he managed to fight off his kidnappers who left when a police car appeared.  He showed police his identification but did not seek their help as he distrusted them.  He left in his car with his friend who had come outside to see what was happening.  He added in oral evidence that this had been a private visit and that he was wearing civilian clothes.  His attackers had called him a “son of a bitch”, “traitor”, “assassin” and had said “now you will know what is good for you” and “you will know the death you gave our colleagues”.  He assumed that they were members of the Shining Path.

8. Mr Puerta went to a health centre for treatment but did not report the attempted kidnapping to the police.  He said he approached his superiors after the attack and told them he was being targeted by terrorists.  He said they told him they could not provide him with protection as they were supposed to be protecting the public.  In the face of this, according to Mr Puerta, he decided to seek his retirement.  He was granted a temporary retirement on 10 October 1997.  He told the Tribunal he had lost hearing in one of his ears and was left with scars on his head as a result of a beating he received in the attack upon him.  The Tribunal however noted that an ear, nose and throat specialist in a report submitted by Mr Puerta indicated that the hearing problems experienced by him were the result of Meniere’s disease and were independent of any assault.

9. In his first submission Mr Puerta claimed that harassment against him intensified following the above incident.  He had complained to police in October 1997 and produced to the Tribunal a translation of a police report referring to “telephonic intimidation acts” from possible terrorists offences against an army officer.  According to the report, Mr Puerta said he had received a 30 second anonymous phone call on 17 October which among other things said “sooner or later you will die” and “you will pay with your guts our brothers’ blood”.

10. In June 1997, Mr Puerta returned to Iquitos but came back to Lima on 2 October 1997 having applied for retirement on 30 September.  Following his return to Lima he received three threatening calls.  He received the calls at his new home in the suburb of San Borja.  His de facto wife had looked for another residence for them as he had moved from Iquitos to Lima with his parents.  She told the Tribunal they had received six to seven calls in one week at their new residence.  In the event Mr Puerta left Peru on 13 November 1997 under a visa issued by the Australian Embassy in Chile.  After his departure he said relatives who were looking after his business interests in Peru told him that the Shining Path had continued making threats over the phone and putting leaflets in the mailbox.  He had a business in Huallaga near the city of Tarapoto which had to be shut down because of threats against him.  This was a rice cleaning business which he and his de facto wife had set up in October 1995.  The business closed in 1998 and was for sale at the time of the hearing before the Tribunal.

11. Mr Puerta also claimed that his family in Peru had received threats from people who called asking for him.  Members of his family were told “tell the bastard that we are going to kill him”.  Subsequently his father had told the callers that he was in the provinces.  At the time of the hearing although the calls had not stopped they had become more sporadic.  Mr Puerta’s in-laws had continued to receive calls but only once every two or three months.  He suggested this was a tactic on the part of the Shining Path as they tried to lull people into a false sense of security and would return.  Mr Puerta told the Tribunal that he feared that terrorists would kill him if he returned.  They would not stop until they got him.  They would get him wherever he went in Peru.  His sister-in-law who was looking after the business in Tarapoto said people had gone to see her during 1998 and asked directly for Mr Puerta wanting to know his address.  According to Mr Puerta these people were from the SL a judgment which he based on the way in which they behaved.

12. In addition to press reports about killing of an army officer and other incidents Mr Puerta submitted two reports from a psychologist which indicated that he is suffering from a generalised anxiety disorder with sporadic panic attacks associated with long exposure to traumatic events and that he also showed signs of post-traumatic stress disorder.

    The Tribunal’s Findings

13. The Tribunal referred to Mr Puerta’s evidence as outlined above and to the psychologists’ reports the first of which also made mention of a hearing problem which contributed to his anxiety.  The second report dated 6 July 1999 indicated an improvement in Mr Puerta’s general condition although it did indicate he continued to have recurring nightmares on a monthly basis.

14. The Tribunal cited country information about the decline of terrorism in Peru and the incidence of attacks on members and former members of the armed forces.  It mentioned that a range of independent sources reported a continuing decline in the threat posed by terrorist groups whose activities remained confined to Peru’s isolated regions.  Sixteen percent of the national territory and around twenty percent of the population remained under a state of emergency at the end of 1998.  The Tribunal referred to a US Department of State Report in 1998 updated to 1999 which estimated that the Shining Path had then between 1,500 and 2,500 armed militants mostly in rural areas although other reports estimate their number to be around 1,000.  The MRTA is said to have fewer than 100 remaining members.  Reference was made to statistics gathered by an organisation called the Legal Defence Institute which estimated that Shining Path and MRTA terrorists carried out 454 violent attacks during the first ten months of 1998 involving 117 deaths of which 27 were suffered by members of security forces including both police and military.  A 1999 report of Shining Path activity indicated an increase in violent incidents in the north-eastern Upper Huallaga region where attacks were said to have doubled those experienced during the first quarter of 1998.

15. The Tribunal found “…no mention of terrorists targeting military personnel for past involvement in counter-subversive activities in recent reports about the situation in Peru”.  An Amnesty report published in 1998 spoke of members of the Shining Path having taken hostage and threatened with death twenty nine workers based in a remote oil exploration plant.  The hostages were released after two days in exchange for livestock and equipment.  In 1997, Shining Path members were reported to have deliberately and arbitrarily killed twenty villagers and local officials accused of being army informers near the river Alta Huallaga in the Department of Huanuco.  The most recent Amnesty report documented a Shining Path attack on the villages of Cachicoto and Purent Pacae in Huanuco where five peasants were shot for passing information to authorities.  Some thirty Shining Path terrorists dressed in military uniforms had allegedly killed the mayor of Saposoa in the Huallaga province after summarily sentencing him to death in a “peoples trial”.  They also attacked the local National Police Post where they killed two other civilians.  The Tribunal accepted that terrorist attacks against individual personnel involved in counter-insurgency in the late 80’s were not uncommon.  It summarised a number of incidents contained in a report from the Documentation Information Research Branch of the Canadian Immigration and Refugee Board.  That report also mentioned that a 28 November 1998 report by a United Left Party senator indicated that 815 military and police members had been killed by guerillas in individual and group attacks since 1980 and that in November 1988 alone an average of 22 guerilla-related deaths occurred each day.  The Andean Commission of Jurists was reported to have indicated that 38 policemen had been killed in group and individual attacks between 1 January and 12 January 1989.  However the Tribunal observed the situation painted by more recent reports differed significantly from that described in the reports just cited.  The last reported attack on a retired member of the armed forces occurred in October 1991 when a retired colonel was shot by the Shining Path outside his home in the port city of Callao.  Another report related to a retired navy captain attacked on 16 September 1988.  The Canadian report also commented that “police functions” normally involve a level of risk and that most officers who had participated in counter-subversive activities or had been involved in fighting terrorism had neither requested nor received State protection.  The Tribunal found that there was a decline of terrorist activity attributable in large part to the strong actions of the Peruvian Government.  Of particular importance was the capture of a Shining Path leader known as Feliciano.

16. Mr Puerta asserted that terrorism had not ended but increased day by day.  He told the Tribunal that relative periods of calm were periods of reorganisation and planning for terrorists.  He was sure that because of its fanaticism Shining Path would not disappear.  The Tribunal pointed out to him during the hearing that there would be many other soldiers who would have been involved in the fight against terrorism but the evidence did not indicate that they were being targeted as he claimed he was.  He told the Tribunal, however, that there were very few officers like him who had spent more than half their military careers in the battlefield.  He also distinguished his role by referring to the particular effectiveness of engineers against terrorism given their strategic role.

17. The Tribunal raised issues relating to the credibility of Mr Puerta’s claims and in the course of the hearing put to him its concerns about various aspects of them.  In its findings the Tribunal referred to the claim that he had no problems with suspected terrorists other than in the course of his duties until August 1994 when he began receiving threatening telephone calls and pamphlets.  He said he had received between five and ten calls and two or three Shining Path pamphlets.  His de facto wife estimated there had been twenty to twenty-five calls and perhaps five pamphlets but she was not sure.  Mr Puerta said that he had forwarded the leaflets to his superiors and was trying to retrieve them in support of his case.  No such leaflets were submitted to the Tribunal.  His account and that his de facto wife gave of the calls that were received differed significantly as to frequency.  She said that she gave little thought to the calls except for taking the precaution of not giving any information.  They had the same number throughout this time and she continued to work at her usual place of employment.  The Tribunal did not believe these claims.  It was unable to accept that someone like Mr Puerta who was a counter-terrorist specialist would do nothing in the circumstances he described.  His admitted lack of action stood in sharp contrast with his response to a minor incident in 1990 when he approached his superiors and obtained a police patrol for his residence on the mere suspicion that terrorists may have been carrying out surveillance of him. 

18. Other features of Mr Puerta’s evidence which called into question his credibility so far as the Tribunal was concerned included the alleged selectivity of the threats, that is to say they only occurred at his residential address and, despite the length of time involved and his exposure to terrorists in his work environment, nothing happened between August 1994 when the threats commenced and June 1997.  His explanations did not overcome the Tribunal’s concerns about his credibility.  His claim that he had lost hearing in one of his ears as a result of an attack was rejected as the ear nose and throat specialist he consulted attributed his hearing condition to Meniere’s disease which would have been independent of any assault.  Although the psychologist’s report linked Mr Puerta’s symptoms to his experiences in the army and also to the alleged kidnap, it did so solely on the basis of the account provided by Mr Puerta.  The Tribunal said:

    “Accordingly, the psychologist’s report cannot be accepted as conclusive on this point.  The applicant’s symptoms may simply be the result of … his own experiences.”

1. The Tribunal did not accept that terrorists had attempted to kidnap Mr Puerta particularly in view of its reservations about the credibility of other aspects of his claim, specifically the threats alleged to have preceded the attempted kidnap.  Moreover if there were an attempted kidnap it was more likely that it was a spontaneous attack on the part of criminals.  Nor did the Tribunal accept the claims he made of anonymous calls following his move to the suburbs and Borga and his observations of strangers watching his house and the vehicle mentioned in his report to police.  The difference in accounts provided by Mr Puerta and his de facto wife and the difference between his claims in support of his application for a protection visa and in what he reported to the police were relied upon.  The discrepancies and their timing in the Tribunal’s opinion gave “… the distinct impression of the claims having been fabricated with the purpose of sustaining a claim for refugee status”.  As to his evidence about post-departure threats from the Shining Path to relatives looking after his business interests and the expansion of extortion activities by guerillas in the area, the Tribunal found that Mr Puerta’s evidence “… suggested generalised guerilla activity not selective targeting of him”.  It accepted that terrorist activities in the region may have affected his business but did not accept that it constituted a course of selective harassment of him for a Convention reason.  The Tribunal found that country information, including that provided and referred to by Mr Puerta, suggested that terrorist activities are, with few exceptions, confined to remote areas and involve personnel in active service.  Such exceptions as the Tribunal referred to did not suggest a risk to someone in his situation.  The latest information, in the Tribunal’s opinion, indicated that terrorists in Peru are not in the position of carrying out reprisals except in some very limited remote areas of the country and that there is no evidence of them carrying out reprisals against particular individuals.  In view of the evidence the Tribunal found the chance that Mr Puerta would be harmed by terrorists was at best remote.  Contrary to his contention that effective protection against the threat of terrorism was not available in Peru the Tribunal found, on the basis of country information, that the decline of terrorism was the result of strong government action and that security measures are available to those deemed to be in need.  The Tribunal concluded:

   “In sum, while the Tribunal accepts that the applicant was involved in the fight against terrorism in the course of his work as an army engineer, and accepts that he may have been under terrorist surveillance in 1990 after his return from a posting in Ayacucho, it does not accept that he continued to be targeted by terrorists.  The Tribunal finds the evidence tendered in support of the such (sic) claims to lack credibility.  The Tribunal finds that, objectively, the chance that the applicant may be targeted by terrorists if he were to return to Peru for reason of his past service with the Peruvian armed forces is, at best, remote.”

2. The Tribunal therefore said it was not satisfied on the evidence before it that Mr Puerta had a well-founded fear of persecution within the meaning of the Convention and while those specific claims were made on behalf of his de facto wife there was no basis upon which the Tribunal could be satisfied that she is a refugee.

   Grounds of Review

3. The grounds of review of the Tribunal’s decision as set out in the further amended application for an order of review were as follows:

   1.        That the decision was affected by actual bias.
   Particulars:
              (a)       The Tribunal was constituted by Ms Paula Christoffanini;

   (b)Ms Christoffanini understood the Spanish language and was from Chile;

   (c)Ms Christoffanini did not disclose her language capabilities or ethnic background to the applicant or their solicitor;

   (d)Ms Christoffanini repeatedly drew adverse conclusions against the applicants on insubstantial grounds.

   2.The procedures required by s 430 of the Migration Act 1958 were not observed.

   Particulars:

   (a)The Tribunal failed to make findings of fact and to refer to the evidence on which those findings were based;

   3.The decision involved an error of law.

   Particulars:

   (a)The Tribunal applied the wrong test to the question of what constituted a “well-founded fear of being persecuted”;

   (b)The Tribunal failed to ask “what if I am wrong”?

   Actual Bias

4. This ground was but faintly pressed and the respondent was not called upon to put submissions in relation to it.  It was said that there are two bases upon which the Court should infer that the Tribunal member who heard the case did not bring an impartial and unprejudiced mind to bear on it.  First, it was said the Tribunal member was born in Chile and speaks Spanish, neither of which facts was disclosed at the hearing.  Counsel was unable to explain how either of these facts could have any bearing on the question of bias and it is manifest that they do not.  Secondly it was said that in the language of the Court in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 the “notable feature of the Tribunal’s reasons is the repeated drawing of extremely adverse conclusions against the [applicant] on what, upon examination, turn out to be the flimsiest grounds”. The most significant of these was said to be the Tribunal’s repeated use or misuse of the generalised conclusion based on the country information. They also included:

   1.Dwelling on minor discrepancies between the accounts of the applicant and his de facto wife as to the number of threatening telephone calls received in and after 1994.

   2.Limiting the psychological evidence to evidence in support of the claimed attempted  kidnap in 1997.

   3.Relying on supposed delay on the part of the applicant in raising claims of threats communicated to the applicant’s relatives as a reason for finding that the claims were not believable.

5. It is sufficient to say of these matters that while they may be legitimate criticisms of the Tribunal’s reasoning process they do not discharge the heavy onus required to establish actual bias on the part of a decision-maker.   There must be demonstrated a mind closed to the issues and not open to persuasion by the applicant’s case – Sun Zhang Qui v Minister for Immigration and Multicultural Affairs at 123 (Wilcox J), 126 (Burchett J) and 134 (North J).  This was not demonstrated in the present case.

   Failure to Make Findings of Fact

6. It was submitted for Mr Puerta that the ultimate issue before the Tribunal was whether or not there were reasonable grounds for considering that he would be a terrorist target if he were to return to Peru.  Country information supported the view that there had been an overall decline in terrorist activity due to anti-terrorist initiatives of the Peruvian Government and so much was conceded by his counsel.  However, it was submitted, the country information also supported the view that terrorist activity had become more focussed.  Mr Puerta claimed that in this climate he would be a particular target.  Given the overwhelming emphasis the Tribunal placed on country information it was necessary for it to make findings of fact to justify the application to him of the general conclusion that terrorist activity was declining in Peru.  This would involve explaining the use, if any, the Tribunal made of country information which would tend to suggest that the declining fortunes of the Shining Path and the MRTA had led, by 1997, to the targeting of individuals including military personnel referring to the Shining Path’s long memory and its ability to be present anywhere in Peru.  It also involved the Tribunal making findings in relation to Mr Puerta’s response that the general conclusion drawn by the Tribunal from the country information was inapplicable to him.  It was incumbent on the Tribunal to deal with the point that he had played a high profile role in anti-terrorist activities and was for that reason a specific target.

7. The Tribunal’s findings adverse to Mr Puerta were based not only upon the country information referred to but also upon its assessment of his contentions and those of his de facto wife.  This is demonstrated by reference to the findings:

   1.The rejection by the Tribunal of the claims of many threatening phone calls over the years 1994 to 1997 was based, inter alia, on the following factors:

   (i)country information indicating that terrorism was on the decline;

   (ii)Mr Puerta’s lack of response to the calls compared with the substantial response he had made to the perceived surveillance of his house four years earlier;

   (iii)the inconsistency of his claims with a later report made to police about one particular threatening phone call which did not refer to the extent of previous calls now claimed nor indicate that the callers had identified themselves as being from the Shining Path (now claimed);

   (iv)the fact that the threats were made only to Mr Puerta’s residential address, that nothing happened to him pursuant to the threats allegedly made over a three year period, differences in detail between his account of the calls and that of his de facto wife, the appearance that his life continued, apparently unaffected by the threats.

   2.The rejection by the Tribunal of the claim that terrorists had attempted to kidnap Mr Puerta in 1997. The following factors were taken into account in reaching that conclusion:

   (i)the continuing decline in terrorist activity;

   (ii)the availability of protection in specific circumstances to members of security forces involved in counter-subversive activities;

   (iii)the absence of any report of the incident to the police in light of the claim that he was able to escape from the attempted kidnap in part due to the arrival of the police;

   (iv)the inconsistency between the medical evidence as to the cause of his hearing impairment and his claim that his hearing was damaged in the course of the attempted kidnapping;

   (v)the apparently spontaneous character of the attack as described by Mr Puerta which did not suggest a planned incident.

   3.The rejection of the claim that harassment intensified after the alleged kidnap attempt was based upon differences between the accounts given by Mr Puerta and his de facto wife and differences between what he now claims to have occurred and what he reported to police at the time.

   4.The non-acceptance by the Tribunal that terrorists have continued to pursue Mr Puerta even though he has left Peru based upon the following factors:

   (i)the inconsistency of his claims in this connection over time;

   (ii)the inconsistencies between his claims and that of his de facto wife about whose parents had received threats after they had left Peru;

   (iii)the conclusion that his claims were consistent with terrorists undertaking general guerilla activities in the region of his business which would explain the incidents without the need to hypothesise that he had been singled out in particular or harassed for any Convention reason.

   5.The Tribunal’s finding that there was at most a remote chance that he would be harmed by terrorists in the future which was based on the following factors:

   (i)the decline of terrorism according to country information;

   (ii)the confinement of terrorist activities to isolated regions of Peru;

   (iii)the absence from country information of any suggestion that military personnel are targeted for past involvement in counter-subversive activities in Peru as had been the case in the late 1980’s.

   6.The Tribunal’s rejection of Mr Puerta’s claim that there was no effective protection against terrorism in Peru.  This was based on the conclusion that terrorism was on the decline and that special security measures were available to those deemed to be at risk.

8. In my opinion the Tribunal’s findings, as summarised in the respondent’s submissions, being findings to which reference has already been made in greater detail earlier, are comprehensive and sufficient to withstand the contention of a failure to make findings on material questions of fact.  They are not premised solely upon country information but upon a consideration of and findings about Mr Puerta’s own evidence and that of his de facto wife.  Since this case was argued a Full Court consisting of a special bench of five, has delivered judgment in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469. The Court held that the provision by the Tribunal of a statement of reasons for its decision pursuant to s 430 of the Act is a procedure in connection with the making of that decision for the purposes of s 476(1)(a). The failure to comply with the requirement of s 430 amounts to a failure to observe a procedure required by the Act to be observed in connection with the making of the decision this being a ground for review of judicially reviewable decisions.

9. The content of the obligation under s 430 may be described in the following propositions which summarised the substance of the judgment in Singh:

   1.Section 430 requires a recording of the decision to which the Tribunal came, the actual reasons for coming to that decision, the findings of fact that were actually made and the material on which those findings were based. It does not impose any obligation on the Tribunal to come to a correct decision or to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached (par 44).

   2.There is no requirement in s 430 for the Tribunal to give reasons for rejecting or attaching no weight to evidence or other material which would tend to undermine any finding it made (par 46).

   3.The preceding proposition is subject to the requirement under s 430(1)(c) that the Tribunal set out its findings on material questions of fact – materiality being determined objectively. That is to say the Tribunal must make findings on questions of fact that are central to the case raised by the material and evidence before it (pars 47 and 60).

   4.The material facts are not only those ultimate facts specified by the statute, such as the existence of a well-founded fear of persecution, they extend to facts which are necessary to complete the logical chain the Tribunal has adopted as the basis for its decision (par 55).  A fact is material if the decision in the practical circumstances of the particular case turns on whether that fact exists (par 57).

   In my opinion there is no material fact in the chain of logic adopted by the Tribunal leading to its conclusion which has been omitted from its reasons.  This ground therefore fails.

   Error of Law – well-founded fear of being persecuted

10. The Tribunal was said to have committed a fundamental error of law in applying the wrong test to determining whether Mr Puerta had a “well-founded fear of being persecuted”.  What that test required, it was said, was a determination by the Tribunal as to:-

    (i)        whether Mr Puerta had an actual fear; and

    (ii)if so whether the fear was well-founded in the sense that there was a real substantial basis for it.

11. The Tribunal was said to have erred because it ignored entirely the first part of the test and substituted for the second a quantitative “real chance” test.  Moreover it was said to have failed to ask “what if I am wrong?”  That question was required to be asked given that on a fair reading of its reasons for decision the Tribunal could not be said to have been in “no real doubt” as to its findings.  The overall approach of the Tribunal, disclosed by its reasons for decision, was said to be drawn from the country information the general conclusion that terrorist activity was declining in Peru.  This general conclusion was then used in two consecutive ways, first to discount to the point of rejection specific claims made by Mr Puerta in relation to events of 1994 and second, to quantify his chance of being harmed if he were to return to Peru as being “at best remote”.  Counsel for Mr Puerta referred to a number of factors which was said to make it incumbent on the Tribunal, in speculating as to what might happen to him if he were to return to Peru to take into account the possibility that its findings might be incorrect.  Those factors were:

    1.        The equivocal nature of the country information.

    2.The Tribunal’s acceptance of Mr Puerta’s status as an officer in the Peruvian Armed Forces prominently involved in anti-terrorist activities.

    3.The Tribunal’s willingness to accept that Mr Puerta may have been the subject of terrorist surveillance in 1990.

    4.The lack of evidence to the contrary of the specific claims made by Mr Puerta in relation to the events of 1994 and 1997.

    5.The truism that exaggeration or fabrication of evidence by a witness does not mean that there is not a kernel of truth in that evidence.

    6.The qualified and somewhat speculative manner in which the Tribunal formulated both the general conclusion and the reasons for the rejection of the specific claims made by Mr Puerta in relation to the events of 1994 and 1997.

12. There was nothing speculative about the way in which the Tribunal formulated its general conclusions about Mr Puerta.  It said at p 28 of its reasons:

    “In sum, while the Tribunal accepts that the applicant was involved in the
     fight against terrorism in the course of his work as an army engineer, and accepts that he may have been under terrorist surveillance in 1990 after his return from a posting in Ayacucho, it does not accept that he continued to be targeted by terrorists.  The Tribunal finds the evidence tendered in support of the such (sic) claims to lack credibility.  The Tribunal finds that, objectively, the chance that the applicant may be targeted by terrorists if he were to return to Peru for reason of his past service with the Peruvian armed forces is, at best, remote.”

    In my opinion, the Tribunal having found the chance of Mr Puerta suffering persecution for a convention reason to be “remote” it was not then required to consider the alternative hypothesis.  By implication, it had already done so and assigned it a low probability, one insufficient to support a “well-founded fear”.  This ground also therefore fails.

    Conclusion

13. For the preceding reasons the application will be dismissed with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:             2 November 2000

Counsel for the Applicants:	Mr S Gageler with Mr R Turner
Solicitor for the Applicants:	Tzivaras Legal
Counsel for the Respondent:	Mr S Lloyd with Mr D Pearson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 June 2000
Date of Judgment:	2 November 2000