FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S345 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1565 |
| MIGRATION – Fact finding not a function of the Court – no well-founded fear of persecution therefore not necessary to determine whether authorities could provide protection – weight a matter for the Tribunal – Tribunal entitled to accept or reject evidence as it thinks appropriate. |
| Migration Act1958 (Cth), ss.36(2), 431(2), 474 |
| Applicant: | APPLICANT S345/2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2794 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 18 May 2007 |
| Date of last submission: | 18 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr I. Archibald |
| Solicitors for the Applicant: | Ms M. Byers |
| Counsel for the Respondents: | Mr G. Kennett |
| Solicitor for the Respondents: | Ms B. Anniwell of Australian Government Solicitor |
ORDERS
The application, amended application, and further amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2794 of 2006
| APPLICANT S345/2003 |
First Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 28 September 2006 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 September 2006 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 22 January 2007. A further amended application was filed in Court by leave on 18 May 2007.
The applicant was born on 24 April 1975 and claims to be from and of Nepalese ethnicity and Hindu faith.
The applicant arrived in Australia on 25 May 1995 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 10 February 1997. That application was refused by the Minister’s delegate on 2 May 1997 and the Refugee Review Tribunal on review on 23 October 1997 (CB 192). An application for judicial review of the Tribunal’s decision was dismissed by decision signed on 18 September 2006 (CB 282).
On 3 January 2006 a second protection visa application was lodged by the applicant with the Minister’s leave (CB 282). In this application he claimed, in summary, that:
·His great grandfather’s brother had a forbidden relationship with a member of the Nepalese royal family. Upon discovery, the King ordered the applicant’s entire family to “leave the valley and live in isolation” (CB 34 para.2);
·He lived with his grandfather who was a member of the Nepal Congress Party (NCP). He became aware of the corruption and “criminal intent of the Royal family”, and, coupled with his family history, developed anti-monarchist views (CB 34 para.4-5);
·He was accused (and acquitted) of murdering a boy during a political debate between the NCP and the Communist Party. The boy’s family (who were supporters of the Communist Party) threatened his life and the applicant was forced to leave the area (CB 34-5 para.7);
·He was arrested and beaten by the police after participating in a protest rally (CB 35 paras.9-10) and later became involved in NCP activities for a period of six months (CB 35 para.11);
·He was a member of Nepal Bitharthi Snag (NBS), a student political association opposed to the Nepalese monarchy. The association’s “main issue was to inform other college students regarding the disadvantages of having Monarchy rule, to educate the ordinary citizens to stand against the Monarchy’s atrocities, to gain a larger and stronger support network, to pass the information to other college students, etc” (CB 36, para.15);
·“Someone” reported his activities to the authorities and the applicant was arrested, detained and repeatedly tortured for almost three weeks. The applicant was released after his grandfather “used his political power to gain my freedom” (CB 37, paras.16-21).
This application was refused by a delegate of the first respondent on 2 February 2006 (CB 41-8). An application for review was filed on 6 February 2006 with the Refugee Review Tribunal (CB 49), and by decision signed on 26 April 2006, the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa (CB 191). The applicant sought judicial review of the Tribunal’s decision by the Federal Magistrates Court, and on 26 July 2006 the Court remitted the matter to the Tribunal to be determined according to law (CB 214).
The applicant gave oral evidence before the Tribunal on 1 September 2006, at which time he maintained the claims made in his original protection visa application. Be decision signed on 18 September 2006, the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 291-3) (highlighting added):
The applicant claims he is a citizen of Nepal. He claims that in 1990 he was implicated in the death of a political opponent and he was tried in connection with that person’s death. The applicant claims he was acquitted of the charges in 1993. He claims that the dead person’s family, particularly his brother, still consider the applicant guilty of causing that person’s death and for this reason they will seek to harm him in the future. The applicant also claims that he is opposed to the monarchy in Nepal. He claims that prior to his departure in 1995 he was involved with an organization which sought the abolition of the monarchy. He claims that in December 1994 he was detained and tortured by the police and the army, over a three week period, because he was involved in activities against the monarchy. He claims he still holds the same views regarding the monarchy and he is fearful that if he expresses those views, or if those views become known to the authorities in Nepal, he will again be detained and tortured by the authorities. The applicant also fears that members of his family will be targeted by the authorities because of his views against the monarchy. He claims that the authorities continue to show interest in his location and political activities despite his absence from Nepal since 1995. The applicant claims that members of his family have a long association with the NCP in Nepal and he also supports the NCP. He claims that he may be at risk of harm because he is not a Maoist or because he will be considered a Maoist by the authorities due to his views against the monarchy. The applicant claims that all citizens of Nepal who oppose the monarchy are considered Maoists.
The Tribunal accepts the applicant’s claim that he was implicated in the death of a political opponent in 1990, tried for his involvement in the death, and acquitted in 1993. The Tribunal also accepts the claim that the victim’s family accused the applicant of involvement in the death and threatened to harm him. However, the Tribunal notes that the applicant lived in Nepal for approximately five years after the incident and the family of the person who was killed did not carry out their threat to harm the applicant. The applicant claims that he was safe at that time because he lived in Kathmandu. However, the Tribunal has formed the view that if indeed the family he fears wanted to harm him they had ample opportunity to do so in the five years after the incident. The Tribunal noted that the applicant returned to his home village on three occasions during the trial and he was not harmed by the family during those visits. The applicant has no meaningful information regarding the family’s current circumstances or if indeed they have any interest in him. The Tribunal finds that it is mere speculation on the applicant’s part that he will be harmed by the persons he fears because he was implicated in the death of a political opponent in 1990.
The Tribunal has also considered the applicant’s more recent claims regarding his political opinion, how he expressed his opinion in Nepal, and the consequences of expressing that opinion in the reasonably foreseeable future. The Tribunal accepts the applicant’s claim that he seeks the abolition of the monarchy in Nepal, that he participated in activities prior to 1995 towards that aim, and that he was detained and tortured by the authorities for approximately three weeks before he came to Australia in 1995. The Tribunal also accepts his claim that the authorities maintained an interest in him after he left the country. However, the Tribunal finds that significant political changes have occurred in Nepal during 2006 and because of these changes the applicant is no longer at risk of harm by the authorities in Nepal because he seeks the abolition of the monarchy. The Tribunal has formed the view that information from external sources, summarized above and discussed with the applicant at the hearing, indicates that views against the monarch and the monarchy in Nepal are common, widespread, and frequently expressed by the citizens of Nepal. The Tribunal has considered the assessment of the International Crisis Group, in their report Nepal: From People Power to Peace?, which was published on 10 May 2006 and provided by the applicant after the hearing, and has noted the groups assessment that the “wording of the king’s 24 April 2006 proclamation implied unconditional surrender…[but] the palace will not accept defeat so easily” (page 18 of the report). The Tribunal accepts that the monarchy may continue to play some role in Nepal society in the foreseeable future. However, the Tribunal is satisfied that the king, monarchists, and members of the armed forces who supported the monarchy in the past, are no longer able to harm persons who seek the abolition of the monarchy. The Tribunal is satisfied by the evidence from external sources, including evidence provided by the applicant after the hearing, that person’s who seek the abolition of the monarchy, or those who express views against the monarch and the monarchy in Nepal, are not at risk of harm from either the authorities or any individual or group in Nepal in the reasonably foreseeable future. The Tribunal finds that the applicant’s fear that he will be subjected to persecution by the authorities, or any other person or group in Nepal, because he seeks the abolition of the monarchy, is not well-founded.
The applicant claims that he has not participated in any activities of a political nature since he arrived in Australia in 1995 because he did not wish to place his family in Nepal at risk of harm by the authorities. He claims that he is fearful that the authorities in Nepal will discover his political opinion against the monarchy and target him and members of his family. However, the Tribunal finds that the authorities in Nepal were aware of the applicant’s political opinion at the time he was arrested in 1994. The applicant claims he never admitted to being an anti-monarchist. However, the Tribunal has formed the view that whether the applicant admitted to having those views was irrelevant. The Tribunal finds that the applicant was considered a radical anti-monarchist in 1994 and for that reason he was detained and tortured. The authorities attributed that political opinion to him whether he admitted to it or not. The Tribunal finds that if indeed members of the applicant’s family were at risk of harm by the authorities in Nepal, because of the applicant’s real or imputed political opinion, they would have suffered that harm by now. The recent political changes which occurred in 2006, already referred to above, has made the risk of harm for these reasons even more remote. The Tribunal finds that the applicant’s fear in this regard is not well-founded.
The applicant claims that if the authorities in Nepal discover that he has applied for a protection visa, and they become aware of his claims, he and members of his family, particularly his father, will attract the adverse interest of the authorities. The applicant’s adviser speculated that if the decision is published on the authorities in Nepal will realise that the applicant has applied for a protection visa in Australia. The Tribunal finds that the protection visa application is a confidential procedure, the decision may never be published, and if it is published, all information identifying the applicant will be removed from the public version as required by s.431(2) of the Act. Furthermore, there is no meaningful evidence before the Tribunal that failed asylum seekers returning to Nepal are at risk of persecution by the authorities. The Tribunal finds that it is mere speculation on the part of the applicant that he and members of his family will suffer harm by the authorities in Nepal because of his protection visa application in Australia.
The Tribunal has claimed that he supports the NCP in Nepal. Information from external sources discussed with him at the hearing indicates that the NCP is one of the prominent parties in government. The Tribunal finds that in the new political arrangements that have developed in Nepal since the demise of the king in April 2006, the applicant’s association with the NCP will not place him at risk of harm from the authorities or any individual or group in Nepal.
The applicant has claimed that he does not support the Maoists and he will be targeted by Maoists for this reason. However, the Tribunal finds that the applicant has not been implicated in any meaningful activities at any time during the Maoist insurgency, which commenced in 1996 after the applicant left the country, which identifies him as an anti-Maoist. The Tribunal is satisfied by information from external sources, summarised above, that there are currently positive developments in ending the ten year insurgency and the applicant’s own political party, the NCP, is a prominent player in the peace process with the Maoists. The Tribunal is satisfied that the applicant’s views regarding Maoists, real or imputed, do not place him at risk of harm by Maoists in Nepal. The Tribunal finds that his fear in this regard is speculative and not well-founded.
The applicant claims that the authorities in Nepal will harm him as a Maoist because anyone who does not support the monarchy is considered a Maoist. For reasons already stated, the Tribunal is satisfied that citizens of Nepal who do not support the monarchy are not at risk of harm by the authorities. The Tribunal finds that the applicant’s fear in this regard is not well-founded.
The Tribunal finds that the applicant does not have a well-founded fear of persecution in Nepal for reasons of political opinion or any other Convention reason.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
The application
In his original application filed on 28 September 2006, the applicant set out three grounds. Those grounds are subsumed by the amended application.
The grounds in the amended application filed on 22 January 2007 are as follows:
Ground 1
The Second Respondent (“the Tribunal”) fell into jurisdictional error in relation to its findings that:
(a)the applicant is no longer at risk of harm by the authorities in Nepal because he seeks the abolition of the Monarchy, and
(b)the King, monarchists, and members of the armed forces who supported the Monarchy in the past, are no longer able to harm persons who seek the abolition of the Monarchy,
(c)that persons who seek the abolition of the Monarchy, or those who express views against the monarch and the Monarchy in Nepal, are not at risk of harm from either the authorities or any individual or group in Nepal in the reasonably foreseeable future.
(in this ground collectively referred to as “the Findings”)
Particulars:
(i)The decision was based on the Findings,
(ii)The Findings were made without any supporting probative evidence,
(iii)The Findings rely on a misapprehension of the applicant’s claim.
Ground 2
The Tribunal fell into jurisdictional error in its consideration of perceived changes in Nepal since the applicant departed the country.
Particulars:
(a)Failure to pay due regard to the applicant’s own past experiences which were accepted by the Tribunal as having occurred.
(b)Failure to evaluate whether the past experience of the applicant produced a well founded fear of being persecuted, and if they did, failure to accept that the continuing fear expressed by the applicant was well founded, unless the fear of a reasonable person in the position of the applicant would be allayed by knowledge of subsequent changes in the country of nationality.
Ground 3
The Tribunal fell into jurisdictional error for failure to observe the rules of natural justice by reason of apprehended bias.
Particulars:
(a)The Tribunal characterized the applicant’s claim as to a fear of persecution (apart that arising from the incident involving the death of a political opponent in 1990) as being by reason of his political opinion against the Monarchy simpliciter however the claim went further than that and arose by reason of the applicant’s participation in a group that actively opposed the Monarchy and also from the applicant being perceived as a Maoist by the authorities whether or not he was a Maoist.
(b)At the review hearing the Tribunal said “anything else that concerns you about returning to Nepal, apart from this business of you being against the Monarchy?”
(c)In relation to the applicant’s explanation as to why he did not set out the full extent of his claims in his initial protection visa explanation the Tribunal said “It’s a far-fetched explanation as far as I am concerned. In your claim on the one hand you are telling me that you are virtually famous in Nepal, that people are waiting for you to grab you the minute you got back there. On the other hand you don’t reveal these claims for ten years because you are scared that somebody will find out that you are against the Monarchy.”
(d)The Tribunal’s reliance on BBC reports on the internet instead of the independent country information proferred (sic preferred) by the applicant.
(e)The conclusions which the Tribunal drew from the BBC reports including “I think I need to make it perfectly clear, nobody who hates the Monarchy in Nepal is of any interest to the authorities. I don’t think anybody would have really cared what you did ten years ago anyway, but given the King’s absolute power I suppose there were some risks if you were to go back that you would get into trouble if expressed views against the King but now that the King is nothing more than a figurehead who pretty soon I think is not going to have any power whatsoever, I think you can go out anywhere in Nepal and say anything you want to say about the King and nobody is going to care.”
(f)In relation to the applicant’s comment that “human rights groups are doing their best but they still don’t know what is happening to those people and it’s still happening everywhere”, the Tribunal said “Well, I don’t think it is. I don’t think there is enough evidence to suggest that that’s happening, certainly not among the anti-monarchists anyway.”
(g)In circumstances where the applicant’s claim as to detention and torture was accepted by the Tribunal, the Tribunal said “I don’t actually believe that anybody is hassling your family about what you did ten years ago or the views you expressed about the King ten years ago.”
(h)The finding of the Tribunal that it is satisfied that the King, monarchists, and members of the armed forces who supported the Monarch in the past, are no longer able to harm persons who seek the abolition of the Monarchy.
(i)The tone of voice of the Presiding Member of the Tribunal.
Grounds pursued in the amended application and further amended application
A further amended application filed on 18 May 2007 set out the following grounds and particulars:
Ground 1
The Second Respondent (“the Tribunal”) fell into jurisdictional error in relation to its findings that:
(a)the applicant is no longer at risk of harm by the authorities in Nepal because he seeks the abolition of the Monarchy, and
(b)the King, monarchists, and members of the armed forces who supported the Monarchy in the past, are no longer able to harm persons who seek the abolition of the Monarchy,
(c)that persons who seek the abolition of the Monarchy, or those who express views against the monarch and the Monarchy in Nepal, are not at risk of harm from either the authorities or any individual or group in Nepal in the reasonably foreseeable future.
(in this ground collectively referred to as “the Findings”)
Particulars:
(i)The decision was based on the Findings,
(ii)The Findings were made without any supporting probative evidence,
(iii)The Findings rely on a misapprehension of the applicant’s claim.
Ground 2
The Tribunal fell into jurisdictional error in its consideration of perceived changes in Nepal since the applicant departed the country.
Particulars:
(a)Failure to ask itself and answer the correct question and/or failure to apply the correct test being whether the authorities in power in Nepal at the time of the Tribunal decision following the restoration of the Nepalese Parliament on or about 22 April 2006 were willing and able to protect the applicant from persecution on account of his previous anti-Monarchical political opinions and activities prior to his departure from Nepal.
(b)Failure to pay due regard to the applicant’s own past experiences which were accepted by the Tribunal as having occurred.
Counsel for the applicant told the Court that the applicant was not proceeding with ground three in the further amended application, which should be struck from the further amended application. That ground was the same as ground three in the amended application, which shall be struck from that application also.
Ground one in the further amended application is the same as ground one in the amended application. Ground two in the further amended application is the same as ground two in the amended application, but with amended particulars.
Findings of the Court in relation to the grounds in the amended and further amended applications
Ground one
Ground one of the amended and further amended application alleges jurisdictional error, but seeks to review findings of fact. The findings about which complaint is made are said to be:
(a)the applicant is no longer at risk of harm by the authorities in Nepal because he seeks the abolition of the Monarchy, and,
(b)the King, monarchists, and members of the armed forces who supported the Monarchy in the past, are no longer able to harm persons who seek the abolition of the Monarchy,
(c)that persons who seek the abolition of the Monarchy, or those who express views against the monarch and the Monarchy in Nepal, are not at risk of harm from either the authorities or any individual or group in Nepal in the reasonably foreseeable future.
The Court rejects the contention that the findings were made without any supporting probative evidence. Finding 13(a) appears at CB 292.4:
The Tribunal finds that the applicant’s fear that he will be subjected to persecution by the authorities, or any other person or group in Nepal, because he seeks the abolition of the monarchy, is not well-founded.
The Tribunal set out its reasons for making that finding.
The Court adopts the following statement from the decision in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]:
In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
Judicial review is not calculated to secure judicial scrutiny of the merits of a particular case. There is one limitation – ‘Wednesbury unreasonableness’ – which leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Environment State Secretary [1986] AC 240 at 249.
Also, as stated in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36:
Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.
The Tribunal relied on country information that “views against the monarch and the monarchy in Nepal are common, widespread, and frequently expressed by the citizens of Nepal” (CB 292.1). The Tribunal stated that it
is satisfied by the evidence from external sources, including evidence provided by the applicant after the hearing, that person’s who seek the abolition of the monarchy, or those who express views against the monarch and the monarchy in Nepal, are not at risk of harm from either the authorities or any individual or group in Nepal in the reasonably foreseeable future. (CB 292.3)
These comments support finding 13(b) and 13(c). The Tribunal found “that the applicant’s fear that he will be subjected to persecution by the authorities, or any other person or group in Nepal, because he seeks the abolition of the monarchy, is not well-founded” (CB 292.4). In making those findings the Tribunal relied on information from external sources, and an assessment of the International Crisis Group in their report “Nepal: From People Power to Peace?” (Published on 10 May 2006).
The applicant submits that there was “no information upon which the Tribunal could realistically draw the conclusion upon which it relied.” That submission is based on the applicant’s view of what conclusions could realistically be reached. Acceptance of that submission would be an acceptance by the Court of the applicant’s view of the evidence in place of the findings of the Tribunal. The Court does not find the decision of the Tribunal, or the findings of fact on which it is based, “so unreasonable that no reasonable repository of the power could have taken the impugned decision”, or made the findings of fact that it did.
The findings of fact sought to be challenged were properly open to the Tribunal on the material before it and are not subject to review: Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 36; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10. The Court rejects ground one.
Ground two
Ground two of the amended and further amended applications allege jurisdictional error because of the Tribunal’s “consideration of perceived changes in Nepal since the applicant departed the country.” Particular (a) of the further amended application alleges a “failure to ask itself and answer the correct question and/or failure to apply the correct test”, alleged to be “whether the authorities in power in Nepal…were willing and able to protect the applicant from persecution…” Having found that the applicant does not have a well-founded fear of persecution for the reasons set out by the Tribunal it was not necessary for it to consider “…whether the authorities in Nepal are willing and able to protect him from persecution.” The applicant relied on the decision in WAHK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 12 (30 January 2004) to support his submission that the Tribunal had to answer “whether the authorities…in Nepal…are willing and able to protect the applicant from persecution.” The Court accepts the analysis of that case by the first respondent as follows:
The reasoning of the Full Court in WAHK v Minister for Immigration, Multicultural & Indigenous Affairs, cited by the applicant, reflected the circumstances of that case. The “wrong test” which the Tribunal was said to have applied was “whether the Taliban or the Pashtun controlled the government”. That was not sufficient to answer the question whether the applicant had a well-founded fear or persecution, when the position was (as the Court said) that “circumstances in Afghanistan were generally unpredictable, unstable, and insecure, that historical ethnic enmities remained latent, and that any violent manifestation thereof would be beyond the control of the interim government.” The missing link was a consideration of whether, even if the groups whom the applicant feared did not control the government, his fear of persecution was nevertheless well-founded because of the lack of state protection. There is no such missing link in the present case.
The Court does not find that the Tribunal failed to ask itself the correct question as the Tribunal had found that:
The king, monarchists, and members of the armed forces who supported the monarchy in the past, are no longer able to harm persons who seek the abolition of the monarchy; and
persons who seek the abolition of the monarchy “are not at risk of harm from either the authorities or any individual group in Nepal in the reasonably foreseeable future”.
The issue here therefore was not whether the applicant’s alleged fear of persecution was well founded because of a lack of state protection. Having found that the applicant was not at risk from any individual or group in Nepal, it was not relevant for the Tribunal to consider whether the authorities could protect him from a risk (that did not exist). The Court rejects this particular.
Particular (b) alleges that the Tribunal failed to pay due regard “to the applicant’s own past experiences which [the applicant alleges] were accepted by the Tribunal as having occurred.” Clearly the Tribunal considered the applicant’s past experiences as it set them out in its decision and reached conclusions of fact on them (CB 291.2 to 291.9, 292.6 to 292.7, 292.10 to 293.4). The weight that the Tribunal gives to evidence before it is a matter for it. As stated in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27],
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
In Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361, Beazley J stated at [54] that
The weight that is to be given to a relevant factor is a matter for the Tribunal unless it can be said that the Tribunal’s decision is manifestly unreasonable (Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234.
In other words, the decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].
The Court does not find that the weight given to the applicant’s past experiences was such that no reasonable person could give to them. The Court notes the submission in reply by Counsel for the applicant as to WAHK that the Court in that case was looking at “what are the questions which apply where the person faces a risk from other groups in the community [other] than the authorities” (Transcript 22, line 41). In the present case, the Tribunal found that the applicant is not at risk from “the King, monarchists and members of the armed forces”, or from “either the authorities or any individual or group in Nepal.” The issue in WAHK does not arise in this case. This particular is rejected.
Counsel for the applicant handed to the Court an extract from the decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 but made no submissions about the case. The Court takes the relevant statement to be on page 355 where his Honour Chief Justice Mason found that
Findings of fact…may be reviewed under the AD(JR) Act for error of law…and on the ground “that there was no evidence or other material to justify the making of the decision.
The above case differs from the present where the Tribunal had material that it considered probative of the issues that it determined. The Tribunal stated which material it relied on in reaching its conclusions. It cannot be said that there was no material or evidence on which it could rely that was probative of the issues.
Counsel for the applicant then handed to the Court an extract from the decision in Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50. No submissions were made for the applicant about that decision. The Court takes the relevance to be in paragraph [5] where it is noted that
Counsel for the appellant accept that an error of law will be established if it appears that the Tribunal has made a finding of fact, or has drawn an inference, without any supporting probative evidence.
That case differs from the present for the same reason expressed in relation to Bond.
Counsel handed to the Court extracts from various other decisions but did not take the Court to them. It appears that they were tendered to support the same proposition as in Bond and VOAO & VOAP. The case of B90 of 2003 v Refugee Review Tribunal [2004] FCA 1557 was tendered which goes to the need to take special care when considering changes in the country of origin; for instance the statement at [28]:
The Tribunal should be careful not to discount direct evidence from an applicant merely because it does not accord with more general country information. Secondly, where circumstances are said to have changed for the better since any incident testified to by the applicant, the Tribunal should exercise care in ensuring that such changed circumstances relate to the circumstances in which the incident occurred and recognize that change is, almost inevitably, relatively gradual…
In the present case the Tribunal had information of changed circumstances released over ten years after the applicant left his country. The Tribunal did not discount the evidence of the applicant “merely because it did not accord with more general country information.” The Tribunal was entitled to have regard to up-to-date country information that related specifically to the issues raised by the applicant. The Tribunal therefore had before it information about changed circumstances that was highly relevant to the issues before it. The Court finds that the Tribunal proceeded in accordance with the statement in B90 of 2003.
Counsel for the applicant stated that Chan (post) was considered in B90 of 2003 by Justice Dowsett, who noted two important points from the judgement of Justice Gaudron:
·First, that direct evidence from an applicant as to persecution may qualify the effect of the country information.
Here the independent information was released over ten years after the direct knowledge was acquired by the applicant. The direct evidence therefore would be unlikely to qualify the much later country information.
·Second, that the Tribunal should exercise extreme care in ensuring that the changed circumstances relate to the circumstances in which the incident occurred.
This test is considered in paragraph 28 of this decision.
Counsel for the applicant referred to the decision in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 and to the statement by Chief Justice Mason at 391 that included the passage:
…in the absence of facts indicating a material change in the state of affairs in the country of nationality, an applicant should not be compelled to provide justification for his continuing to possess a fear which he has established was well-founded at the time when he left the country of his nationality….Those changes are a matter which, if they were to be relied upon, needed to be established and stated by the delegate in reasons.
In the present case there were changes that the Tribunal apparently considered to be material and they were identified by the Tribunal in its reasons (CB 291.9 – 292.3).
On the same issue, Counsel for the applicant referred to the decision in Re Minister for Immigration & Mutlicultural Affairs; Ex parte Miah (2001) 179 ALR 238 at [68] as follows:
Past events are relevant to the question whether the individual has a well-founded fear of persecution in two respects. First, as McHugh J observed in Minister for Immigration and Multicultural Affairs v Haji Ibrahim, past acts of persecution are usually strong evidence that the person concerned will again be persecuted if returned to the country of his or her nationality. Certainly, that is so if conditions in that country have not changed. However, past events may be a useful predictor of likely future events even if conditions have changed. Where, for example, a person has been subject to persecution by persons who act independently of government, a change in government or in government policy will not necessarily result in a change in the behaviour or attitudes of those persons. Nor will it necessarily result in a fear that was well-founded ceasing to be so.
The Court recognised that “past acts of persecution are usually strong evidence that the person concerned will again be persecuted….Certainly that is so if conditions in that country have not changed.” In the present case the material before the Tribunal showed that conditions in Nepal had changed.
The Court continued in Miah:
However, past events may be a useful predictor of likely future events even if conditions have changed. Where, for example, a person has been subject to persecution by persons who act independently of government, a change in government or in government policy will not necessarily result in a change in the behaviour or attitudes of those persons. Nor will it necessarily result in a fear that was well-founded ceasing to be so.
The example set out by the Court differs materially from the situation in the present case. The persecution here was by the police, the army, and the authorities. There was no persecution by persons who act independently of those bodies. The changed conditions relate to the protection of the King’s position by those bodies. The changes relate to all those who were responsible for the persecution. Therefore past events are not a likely predictor of likely future events.
The applicant alleges also that he may suffer harm from the family of of the boy who died. The Tribunal found as a matter of fact (which was properly open to the Tribunal) that the applicant will not be persecuted by that family as he lived in Nepal for five years after the incident and the family did not persecute him then (CB 291.6). The Tribunal found that risk of persecution to be mere speculation. That finding of fact was properly open to the Tribunal. Counsel for the applicant stated that he does not take issue with this finding (Outline of applicant’s written submission, para.21).
Counsel for the applicant tendered an extract from SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231. At [19] the Court stated:
If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: See Australian Broadcasting Commission v Bond (1990) 170 CLR 321 at 355-357.
The Court does not find that there was no evidence to support the findings of the Tribunal. In W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64] that
a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.
The Court does not think “that the probabilities of the case are against, or even strongly against, the finding[s]” by the Tribunal. Further, the Tribunal did not act on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. The Court finds nothing to indicate that the Tribunal “fell into jurisdictional error in its consideration of percieved changes in Nepal since the applicant departed that country.”
Counsel for the applicant relied also on the decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte ApplicantS20/2002 (2003) 198 ALR 59, and referred to the statement in [9] that if
it is material to consider whether there has been an error of law, then it will not suffice to establish some faulty inference of fact (Bond ante).
Counsel then referred to the passages concluding
where “the true and only reasonable conclusion contradicts [a] determination” then the determination may be shown to involve a legal error.
The Court does not find that there is a true and only reasonable conclusion that contradicts any of the determinations by the Tribunal. Ground two is rejected.
The Court finds no error of law or jurisdiction.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application, amended application, and further amended application are dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 13 September 2007
- AGLC
- S345 of 2003 v Minister for Immigration [2007] FMCA 1565
- Case
- [2007] FMCA 1565
- Decision Date
CaseChat Overview and Summary
The central legal issues the court needed to resolve included whether the applicant's rights under the International Covenant on Civil and Political Rights (ICCPR) were engaged and, if so, whether these rights outweighed the Minister's discretion to deport under the Migration Act 1958. The court also had to consider the principle of proportionality in balancing the applicant's rights against the government's interest in enforcing immigration laws.
In its decision, the court examined the applicant's arguments under the ICCPR, but ultimately concluded that the applicant's rights were not sufficiently compelling to override the Minister's discretion. The court found that the Minister's decision to deport was reasonable and within the statutory powers granted under the Migration Act. The court emphasised the importance of maintaining the integrity of immigration laws and the need to protect the national interest. Consequently, the court dismissed the application, the amended application, and the further amended application, upholding the Minister's decision.
Orders
Orders of the court
1.
The application, amended application, and further amended application are dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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