SZDZE v Minister for Immigration - [2006] FMCA 962

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDZE v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 962

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 422B, 430, 476, 483A
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) No.134

Addo v Minister for Immigration [1999] FCA 940
Applicant WAEE v Minister for Immigration [2003] FCAFC 184
Minister for Immigration v Guo (1997) 191 CLR 559
Minister for Immigration v Yusuf (2001) 206 CLR 323
Muin v Refugee Review Tribunal;Lie v Refugee Review Tribunal [2002] HCA 30
MZWBW v Minister for Immigration [2005] FCAFC 94
NAFT v Minister for Immigration [2003] FCAFC 254
NAHI v Minister for Immigration [2004] FCAFC 10
NBCA v Minister for Immigration [2004] FCA 844
Osmond v Public Service Board (1986) 159 CLR 656
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
SAAP v Minister for Immigration [2005] HCA 24
SZDSJ v Minister for Immigration [2005] FMCA 160
SZDTN v Minister for Immigration [2005] FMCA 1293
SZDTN v Minister for Immigration [2006] FCA 175
SZGPZ v Minister for Immigration [2006] FMCA 194
SZGTA v Minister for Immigration [2006] FMCA 648

Applicant:

SZDZE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2030 of 2004

Judgment of:

Lloyd-Jones FM

Hearing date:

30 May 2006

Delivered at:

Sydney

Delivered on:

29 August 2006

REPRESENTATION

Advocate for the Applicant:

Mr S Ek

Solicitors for the Applicant:

EK Lawyers – appearing on a pro bono basis

Counsel for the Respondents:

Mr J Potts

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent is amended to read Minister for Immigration and Multicultural Affairs.
The application filed on 1 July 2004 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2030 of 2004

SZDZE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 1 July 2004 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was handed down on 22 December 1999, affirming the decision of a delegate of the first respondent on 4 June 1998, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZDZE”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].

Background

The Tribunal decision of Dr Pamela Gutman, reference N98/24067, provides the following background material. The applicant is a citizen of Cambodia who arrived in Australia on 26 May 1997. On 25 May 1998 he lodged an application for a protection visa with the Department of Immigration under the Act. On 4 June 1998 a delegate of the Minister refused to grant a protection visa and on 2 July 1998 the applicant applied to the Tribunal for review of the delegate’s decision.(Court Book (“CB”) 59)
The applicant claims that he fears persecution because of his membership of the political party, Front Uni National pour un Cambodge Indépendant, Neutre, Pacifique, et Coopératif (FUNCINPEC). He had been approached to become a member because of his popularity in his district and his campaigning activities. He was threatened by members of the ruling Cambodian People’s Party (CPP) and told that he should transfer his allegiance to them, which he refused. He received death threats and fears that he would again if he returned to Cambodia. The applicant told the Tribunal that he had been an ordinary grassroots member of the FUNCINPEC. He joined them as he believed the party would ensure that the Cambodian people and the country would be “good and safe”. The FUNCINPEC had also assisted him when he was threatened by the CPP.(CB 61)

Previous Litigation History

The applicant was a party to the Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (“Muin and Lie”) class action in the High Court of Australia between 30 June 2000 and 20 June 2003. He withdrew from the class action by order of the High Court on

20 June 2003. On 20 February 2004, the applicant lodged an application in the Federal Court of Australia seeking orders to restrain the first respondent from removing him from Australia. This culminated in a judgment delivered on 20 June 2004: NBCA v Minister for Immigration [2004] FCA 844 per Conti J.
Mr Ek, appearing for the applicant, advised the Court that he appeared in this matter pro bono and has represented the applicant since 2003. Mr Ek also advised the Court that he also was a former refugee from Cambodia and that the applicant approached him when the applicant discovered that Mr Ek was conversant in the Cambodian language. Mr Ek pointed out to the Court that he was a sole practitioner with very limited resources and did not have extensive knowledge of this jurisdiction. However, he had strong moral reasons to assist the applicant as the applicant was unable to obtain assistance from other practitioners within this jurisdiction.

Application for Review of the Tribunal’s Decision

On 1 July 2004, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. On 28 January 2005, the applicant filed an amended application, and at the commencement of the hearing, Mr Ek sought leave of the Court to file a further amended application. As there was no objection by counsel for the respondents, leave was granted. The grounds of review contained in the further amended application are:
1.The Tribunal made an error for failure to provide reasons or findings with respect to the claim other than being an ordinary member of an opposition party (FUNCINPEC), that the applicant was “active in campaigning” for the 1998 general elections, which led to the threats of killing and harassment against the applicant.
2.The Tribunal made an error for failure to provide reasons or findings with respect to the claim that the applicant “had been threatened by members of the ruling CPP. And told that he should transfer his allegiance to them, but had refused.”
3.The Tribunal made an error in its finding that “the Khmer Rouge no longer exists as a political force and there is no real chance of further mistreatment of the applicant by them”, as the applicant had never claimed that he was being mistreated by the Khmer Rouge.
4.The country information before the Tribunal indicated that Cambodia has had a volatile political history in the past 40 years. Specifically:
In 1970 there was a coup.
In 1975 the Pol Pot regime was installed followed by four years of genocide.
In 1978, Vietnam invaded Cambodia and installed a government.
In 1993 there were general elections. However, by 1995 fighting between the parties had resumed, during which period members of FUNCINPEC were harassed and in some cases persecuted.
In November 1997 the CPP and FUNCINPEC agreed to form a coalition government.
In the present case, the Tribunal found that in light of the situation in Cambodia at the time of the Tribunal’s decision:
a) in relation to the applicant’s fear of persecution by the CPP party, the applicant “would be able to return to Cambodia without hindrance and harassment”.
However, the Tribunal failed to consider whether, in light of the volatile recent political history of Cambodia, the political situation might change again, exposing the applicant to a real chance of persecution. On this basis, the Tribunal either misapplied the “real chance” test, or failed to take into account a relevant consideration, giving rise to jurisdictional error.

Reasons

The Tribunal decision was made on 22 December 1999. Since that date, the applicant has been involved in other litigation in respect of the Tribunal decision, essentially as a member of the Muin and Lie class action. The Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) No.134 commenced on 2 October 2001 and Schedule 1 Part 2 Item 8(2) introduced the new Part 8 to the Act. The relevant provision states:
(2) The Migration Act 1958 and the Administrative Decisions (Judicial Review) Act 1977, as amended by this Schedule, apply in respect of judicial review of a decision under the Migration Act 1958 if:
(a) the decision was made on or after the commencement of this Schedule; or
(b) the decision:
(i) was made before the commencement of this Schedule; and
(ii) as at that commencement, an application for judicial review of the decision had not been lodged.
The relevant provisions of the amending Act commenced on 1 June 1999. By that time, the applicant had not commenced any proceedings for judicial review. Consequently, the new Part 8 of the Act applies.
Mr Potts, counsel for the respondents, assisted the Court by drawing my attention to the key evidence contained in the Court Book, relevant to this application. The Tribunal decision indicates that the applicant is a citizen of Cambodia who arrived in Australia in 1997 and lodged a protection visa application on 25 May 1998, claiming he feared persecution on the ground of political opinion. Those claims are set out in the protection visa application.(CB 2-24) An additional one and a half page typed statement was submitted with the application for review to the Tribunal.(CB 46-47) This statement does not substantially add any claims to the original visa application.
In the Tribunal decision, under the heading ‘Claims and Evidence’, is a summary of the claims made to the Department and oral evidence given to the Tribunal on 30 November 1999 (CB 61):
Before the Tribunal the applicant stated that he had been an ordinary grass-roots member of the party. He had joined because he believed that it would ensure that the people and the country were good and safe. When he was threatened by the CPP the FUNCINPEC had assisted him.
Asked whether his family had been persecuted in any way since his departure, the applicant stated that they had left Phnom Penh to live in the countryside and had not been harassed by the CPP.
The Tribunal records having put certain information to the applicant in the form of advice from the Australian Embassy in Phnom Penh. Mr Potts indicates that there was a common law obligation of natural justice as this predated s.422B of the Act. The Tribunal records the following (CB 61.6):
Since he had departed a new government had been formed, and FUNCINPEC played an important role within it. The Tribunal could not find that the applicant had a well-founded fear of persecution for reason of his political opinion.
The Tribunal then records the applicant’s response as (CB 61.7):
The applicant accepted this report as true, but stated that Hun Sen was strongly in power, and that FUNCINPEC played only a small role. He still did not trust the CPP. Cambodia was still unsafe, and he was afraid for his life. He had suffered under Pol Pot, and only in Australia did he feel safe.
The Tribunal then refers extensively to independent evidence which leads to advice from the Australian Embassy.(CB 61-63.5) The Tribunal then finds (CB 64):
I accept that the applicant was a FUNCINPEC party member when he left Cambodia in 1997, and as such may have received threats from members of the opposing CPP party. Since that time, however, the situation in Cambodia has changed. As put to the applicant at hearing, following the elections a new government in which FUNCINPEC plays an important role has been informed, and DFAT advice is that persons of his background would be able to return to Cambodia without hindrance or harassment.
The fourth element of the findings importantly states:
While I appreciate that the applicant suffered under Pol Pot’s Khmer Rouge regime, as did millions of others, the Khmer Rouge no longer exists as a political force (CX 24935 above) and there is no real chance of further mistreatment of the applicant by them. I find that the applicant’s fear of persecution for reason of his political opinion is not well-founded.
Mr Ek submits that the applicant’s campaigning in the elections was a significant political task and which contributed to the outcome of the applicant’s popularity in his district. Mr Ek argues that if the Tribunal finding had been that the applicant played a significant role in his party and the elections, it would then be clear that his role in the FUNCINPEC consisted of “middle level activities”. Mr Ek refers to the following country information report(No.160/98) (CB 86):
Individuals currently considered to be at risk are the middle level activists, particularly in the provinces and districts, on whom FUNCINPEC and KNP depend to organise for the forthcoming election.
Mr Ek submits that the Tribunal’s failure to find that the applicant was an active member of FUNCINPEC was a material fact which went to the heart of the applicant’s claim. Therefore the Tribunal made a jurisdictional error as per Minister for Immigration v Yusuf (2001) 206 CLR 323 at 348 to 349 (“Yusuf”):
If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past).
Further, Mr Ek argues that the Tribunal’s omissions in its findings constituted a breach of s.430(1) of the Act. In Addo v Minister for Immigration [1999] FCA 940 at [24] and [31] the Court said:
24.S430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based…
31. It is not necessary, in order to comply with section 430 (1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made. A fortiori, there is no duty on a member of the Tribunal to seek out material which has not been provided to it in connection with the case under consideration in order to give reasons for not attaching any weight to that material. Accordingly, there has been no failure to comply with section 430 in relation to the evidence and material identified by the Appellant.
Also that the Tribunal made an adverse finding against the applicant by concluding that being an ordinary member of the FUNCINPEC, he would not suffer persecution if he were to return to Cambodia.(CB 64)
Mr Ek argues that another country information report (No.233/99) contains a contrary view (CB 90):
In addition, it is worth noting that commune-level elections are scheduled to take place, probably in year 2000. The Ministry of Interior has stated that political parties will not be eligible to campaign in the elections…in the event of a commune election campaign, it is very possible that the pattern of local-level harassment and violence against opposition candidates and activists which occurred during the 1998 campaign will be repeated, and possibly even intensified.
In such a situation, as was the case in 1998, it would be mid-level activities rather than high-profile leaders or grassroots members who may have cause for concern.
The 1998 elections in Cambodia resulted in the killing of members of opposition parties.(CB 63, 89) The Tribunal also made note of a report compiled by the Institute of South East Asian Studies (CB 62):
In November 1998, after the considerable further manoeuvring, including some violence, Hun Sen was installed as the sole Prime Minister while Ranariddh became Chairman of the National Assembly.
Mr Ek submits that the section of country information report No.233/99 on which the Tribunal relied (CB 63, 89) was prejudicial to the applicant:
a)It was prepared on 16 July 1999 based on a report dated 3 March 1999. This was out of date.
b)It specifically stated that it was “not aware of any retaliation against returnees to Cambodia”. To say that it was not aware did not mean to that persecution inflicted by the CPP did not occur.
c)The safe return to Cambodia of those ousted political members referred to in that report only cited the most prominent ones, well-known to international communities, such as Mr Sam Rainsy and Commander Nheik Bun Chhay.
Mr Potts, in response to the assertion in ground one that jurisdictional error resulted from the Tribunal’s “failure to provide reasons and findings”, submits that there is no general duty at common law for an administrative decision-maker to give reasons: Public Service BoardvOsmond (1986) 159 CLR 656 at 667. The Tribunal’s sole duty to provide reasons for its decision is contained in s.430 of the Act. However a failure to comply with s.430 does not amount to jurisdictional error, as decided in NAFT v Minister for Immigration [2003] FCAFC 254 at [7] per Bennett J (Spender and Hely JJ concurring):
The appellant made some reference to a failure to comply with s 430 and s 353(2)(b) of the Migration Act 1958 (Cth) (‘the Act’). As to the latter section I take it that the appellant means s 420(2)(b) of the Act. Although the primary Judge did not refer to the submissions expressly, even if a breach of these sections were established, it would not amount to jurisdictional error (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323).
Mr Potts argues that the Tribunal did explain why it made the findings that it did by referring to the evidence of the applicant and the country information. The substance of this ground of review is a “failure to make a finding as to whether the applicant was an active member and thereby assuming a claim of ordinary membership of a political party, FUNCINPEC, was a material fact, which went to the heart of the claim, such that there was a jurisdictional error made by the Tribunal”. On behalf of the applicant, it was submitted to the Tribunal that he was not just an “ordinary grass-root member of FUNCINPEC”, but was active in campaigning before the elections.(CB18,61) Mr Potts submits that this is not an accurate characterisation of the evidence.
In the applicant’s protection visa application, he said he “decided to be very active in our campaign for the coming election”. The claim was ultimately pressed before the Tribunal but in different terms. The Tribunal was nonetheless clearly aware of the original claim and made the following findings (CB 61):
The applicant’s claims are set out in written submissions to the Department and to the Tribunal and oral evidence given to the Tribunal on Tuesday, 30 November 1999.
The applicant has claimed that he fears persecution because of his membership of FUNCINPEC. He had been approached to become a member because of his popularity in his district, and before the elections was active in campaigning. He had been threatened by members of the ruling CPP, and told that he should transfer his allegiance to them, but had refused. He had received death threats, and feared that he would again if he returned.
Before the Tribunal the applicant stated that he had been an ordinary grass-roots member of the party. He had joined because he believed that it would ensure that the people and the country were good and safe. When he was threatened by the CPP the FUNCINPEC had assisted him.

Mr Potts submits that the basis of the Tribunal’s decision was that it accepted, from country information, that the situation in Cambodia had changed (CB 64):
As put to the applicant at hearing, following the elections a new government in which FUNCINPEC plays an important role has been informed, and DFAT advice is that persons of his background would be able to return to Cambodia without hindrance or harassment.
Mr Potts also submits that the Tribunal reached its conclusion based on its application of country information to the perceived situation in which persons of the applicant’s background would find themselves, upon return to Cambodia. Such application does not evidence a failure to consider or deal with the applicant’s claim that he had been active in election campaigning. The Tribunal expressly referred to this claim as quoted at [21] above.
Mr Potts submits that this ground seeks merits review of findings of fact. This is not part of the function of the Court in dealing with an application for relief under the jurisdiction equivalent to that of the Federal Court pursuant to s.39B of the Judiciary Act. It is necessary for the applicant to establish jurisdictional error. Whatever the boundaries of jurisdictional error, it does not comprehend errors of fact as to the merits of the case put to the Tribunal: NAHI v Minister for Immigration [2004] FCAFC 10 at [10]. It is not a jurisdictional error to make a wrong finding of fact: MZWBW v Minister for Immigration [2005] FCAFC 94 at [28].
In respect of the applicant’s submissions regarding the Tribunal’s use of country information, Mr Potts submits and I accept his submission, that the weight to be given to country information was entirely a matter for the Tribunal in judging the merits of the applicant’s case: NAHI v Minister for Immigration.
Mr Ek, in the applicant’s response to the respondents’ submissions in respect of the first ground, acknowledged that mere failure to provide reasons or findings does not in itself amount to jurisdictional error. However, failure on the part of an administrative decision-maker to give reasons for findings on a fact which is crucial and fundamental to a claim, is a “failure to observe procedures required by the Act”. The applicant’s claim of being active in the campaign, which led to threats of killing and harassment, was not dealt with by the Tribunal. The applicant’s claims of persecution include:
(i)Threat by claims of the ruling CCP: (CB 61);
(ii)Received death threats: (CB 61);
(iii)Fear that he would again if he returned: (CB 61).
Mr Ek claims there is no evidence that the Tribunal made a finding in relation to these claims in its ‘Findings and Reasons’. He submits that the Tribunal’s reasons why it did not recognise the applicant’s refugee claim were based on a general and selective use of country information produced by the Department through its agent, the Australian Embassy in Cambodia. However, by not dealing with the applicant’s specific claims, the Tribunal asked itself the wrong question and eventually used selective information against the applicant.
Mr Ek submits that the Tribunal was aware of the original claim, but did not make a finding on it nor did it attempt to determine the claim. If it had done so, it would have discovered that the applicant had been assaulted twice in 1993 and 1996 by people loyal to the CPP, resulting in a partial loss of hearing.(CB 52) Having determined that the applicant was merely a grassroots member of the FUNCINPEC and failing to find the applicant was an active campaigner for the 1998 elections, the Tribunal only used the part of the report which was prejudicial to the applicant. Mr Ek also claims that the Tribunal was discriminatory because it ignored sections of the report that were beneficial to the applicant. The failure on the part of the Tribunal to undertake or make findings of particular facts clearly resulted in the Tribunal asking itself the wrong question, as it relied on a portion of the country report that eventually resulted in the claim remaining unreviewed. Therefore the Tribunal did not take into account the entirety of the applicant’s political activities to determine his level of risk of persecution.
In respect to the applicant’s contention that the Tribunal has failed to deal with his claim, it was acknowledged that each and every element had not been identified. However, they do not need to be. The Tribunal is entitled to make general findings provided it deals with the substance of everything raised. Whilst recognising the detailed submissions provided by Mr Ek on behalf of his client, I believe the submissions made by Mr Potts are correct and that the claims in ground one of the application cannot be sustained.
In respect of the second ground, Mr Ek submits that the Tribunal’s failure to make findings in respect of the threats made against the applicant and demands that he change allegiances, constituted a jurisdictional error under s.430(1)(c) of the Act, due to the Tribunal’s failure to “set out the findings on any material question of fact”. Mr Ek claims that this was such a question and drew a comparison between objective as opposed to subjective material: Yusuf at [9] per Gleeson CJ. Mr Ek argues that it was on the basis of the threats and demands that the applicant was fearful for his life and escaped Cambodia.
Mr Ek acknowledges that the High Court in Yusuf was divided on the interpretation of s.430 of the Act, see at [37] per Gaudron J:
…depending on the matter in issue and the context in which it arises, that may or may not disclose reviewable error. For example, the failure to make a finding on a particular matter raised by the applicant may, in some cases, reveal an error of law for the purposes of s476(1)(e) of the Act.
However, McHugh, Gummow and Hayne JJ held that such an error amounts to an error of substance and not the application of s.476(1)(a). Their Honours said at [75]:
If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past).
Mr Ek distinguishes the present case from Yusuf in that a finding of political membership is a more general finding. Whereas a claim of persecution resulting from active political campaigning and having demands made to change political allegiance, can be said to be a specific claim. Mr Ek argues that this specific claim was not discussed or raised by the Tribunal. In Yusuf, the majority of the High Court found that the Tribunal’s findings of two attacks made on the applicant, as opposed to three as claimed by the applicant, did not constitute an error under s.430.
Mr Ek submits as the Tribunal in the present case did not refer to one of the applicant’s essential claims in its decision, it is likely that a reasonable person may doubt that the applicant’s active political campaigning forced him to change allegiance, see Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [45]:
If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.
Mr Ek claims that the practice of the CPP in demanding that people change political allegiance is supported by an article of the Institute of South East Asian Studies (CB 70):
There were repeated, and it would appear well-founded, allegations that the CPP engaged in practices designed to intimidate voters to cast their ballots in its favour. These practices included having prospective voters swear oaths of loyalty to the CPP in front of vessels containing water and a bullet – a variation on a long established Cambodian oath-taking ritual, with the none-too-subtle suggestion being that failure to honour the oath could lead to their death.
Mr Ek submits that the report makes reference to gruesome methods by which voters were forced to vote for the CPP. Therefore, it would indicate that the claim of forced allegiance made by the applicant, an active opposition member, contains a degree of truth.
Mr Potts submits that to the extent that the second ground refers to a failure to provide reasons, as was argued in the first ground, a breach of s.430 does not constitute jurisdictional error. He further submits that the second ground seems to complain that the Tribunal failed to deal adequately with the claim that the applicant had been threatened by members of the ruling CPP. The passage from the Tribunal’s reasons reproduced at [21] above, shows the Tribunal was quite aware that this claim was made. The passage reproduced at [22] above shows that the Tribunal dealt with the applicant’s claim on the basis that a person of his background no longer suffered any risk of persecution because of changes which had taken place in Cambodia. Mr Potts submits that this was all the Tribunal needed to do to deal with this aspect of the applicant’s claim.
Mr Potts argues that the passage relied upon by Mr Ek from Yusuf does not provide any statement of the law that a breach of s.430 constitutes jurisdictional error. To the contrary, Yusuf stated that a failure to comply with s.430 may evidence some other form of jurisdictional error, such as a failure to take into account relevant considerations, see Applicant WAEE v Minister for Immigration at [46] – [47] per French, Sackville and Hely JJ:
46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Mr Potts submits that the Tribunal disposed of the case by concluding that even accepting the applicant’s background as claimed, changes in Cambodia meant that he was no longer at risk. Further, to the extent that the applicant cavils with the Tribunal’s findings of fact, he is seeking a merits review.
Mr Ek in his response to the respondents’ submissions on ground two, repeated his argument in ground one. Having determined that the applicant was merely a grassroots member of the FUNCINPEC and not finding that his was an active campaigner in the 1998 elections, the Tribunal only used part of the country report prejudicial to the applicant. Mr Ek drew the Court attention to the following content in the DFAT report of 15 July 1999 entitled “Cambodia: Human Rights/Political Climate – Background” (CB 90):
In such a situation, as was the case in 1998, it would be mid-level activists rather than high-profile leaders or grassroots members who may cause for concern. On past patterns of activity, they may be warned by authorities to desist from their political activities, and if they did not do so, the harassment may intensify, possibly into violence.
Also, that the Tribunal misunderstood the report, that a person of the applicant’s background could return to Cambodia. However, the report only identifies one single high-profile returnee, Commander Nhiek Bun Chhay.(CB 89)
Mr Ek submits that the country information used by the Tribunal was discriminatory because another part of the report explicitly states (CB 89):
a)It is not aware of any retaliation against returnees to Cambodia.
Mr Ek argues that just because the reporting body was not aware of retaliation does not mean that violence and harassment never took place:
b)Our contract warned, however, that the fundamental culture of Cambodian politics has not changed.(CB 90)
c)It is possible that in coming months…activists of the Sam Rainsy Party and Human Rights NGOs may find themselves targets of government persecution…Editors…viewed with hostility by the CPP, and violence against them is a possibility…(CB 90)
d)In addition, it is worth noting that commune-level elections are schedule to take place, probably in the year 2000…it is very possible that the pattern of local-level harassment and violence against opposition candidates and activists which occurred during the 1998 campaign will be repeated, and possibly even intensified.
Further that failure of the Tribunal to make a finding on these particular facts clearly resulted in the Tribunal asking itself the wrong question, therefore relying on wrong portions of the country report, and resulted in a claim being unreviewed.
The applicant acknowledges that the Tribunal is not required to set out or make findings on every fact, only those which are crucial and material to a claim. Mr Ek argues that even if the Tribunal took into account the critical claims made by the applicant, it failed to look at the DFAT report quoted at [39], particularly its bleak report on Cambodian politics. Mr Ek asserts that a breach of s.430 occurred. However, I agree with the submission made by Mr Potts that this does not constitute jurisdictional error. Further, the assertion that the Tribunal failed to deal with part of the applicant’s claim cannot be sustained, as the Tribunal is entitled to make a general finding that a person of the applicant’s background would not be at risk if he returned to Cambodia at the time of the Tribunal decision or in the foreseeable future.
In respect of the third ground, Mr Ek submits that the finding that the Khmer Rouge no longer exists was an error made by the Tribunal and amounted to jurisdictional error. Mr Ek relies on Yusuf at [82] per McHugh, Gummow and Hayne JJ:
It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
Mr Ek submits that the Tribunal exceeded its authority and jurisdiction in its Khmer Rouge finding. It took into account irrelevant information which was not part of the applicant’s claim of but was from a report on which the Tribunal placed significance. The report, CX24935, was referred to at CB 62:
The Khmer Rouge began to fracture in August 1996.
Mr Ek submits it appears from this statement that the Tribunal assumed that the applicant claimed fear of the Khmer Rouge when in fact the applicant only raised the suffering experienced under Pol Pot by way of comparison to the treatment of the CPP.(CB 61) Mr Ek argues that it was a statement in response to the Tribunal’s question with respect to the report. It was not part of the applicant’s claim that the Khmer Rouge would return.
Mr Ek submits that the applicant had every reason to doubt the CPP. The CPP’s current Prime Minister Hun Sen and his cabinet were former members of the Khmer Rouge who defected to Vietnam in 1978 and subsequently returned to Cambodia. In support of his argument, Mr Ek referred to a passage in the Institute of Southeast Asian Studies, which states:
Widely, and accurately, regarded as ruthless in his determination to neutralize his opponents by whatever means deemed most effective, Hun Sen is in the long tradition of Cambodian rulers for whom politics is a zero-sum game. You either win or you lose. Any assessment of future developments needs to take this judgment into account.(CB 68)
That the outlook for the future is so sombre is a direct reflection of the flawed nature of developments following the UN – sponsored elections in 1993 and the later seizure of power by Hun Sen in July 1997. When Hun Sen and the CPP failed to win a majority of seats in the 1993 elections, they made clear their readiness to return to armed conflict if their interests were not accommodated.(CB 70)
Mr Potts submits that ground three is a mischaracterisation of the Tribunal’s reasons. The Tribunal first concluded that following the Cambodian elections, a new government was formed in which FUNCINPEC played an important role. The DFAT then advised that persons of the applicant’s background would be able to return to Cambodia without hindrance or harassment. The Tribunal accepted that advice. Mr Potts submits that the applicant’s claim based on the CPP was therefore disposed of. The Tribunal then went on to note that while it appreciated that the applicant suffered under Pol Pot’s Khmer Rouge regime, as did millions of others, the Khmer Rouge no longer existed as a political force and there was no real chance of further mistreatment of the applicant by it. Also that this last statement was responsive to any suggestion implicit in the applicant’s original claim that he had suffered abuse under Pol Pot and the Khmer Rouge. Mr Potts submits that these conclusions are not in error and do not give rise to jurisdictional error.
Mr Ek submits in response that the nature of the error made by the Tribunal was that it only used parts of the DFAT report, which was to against the applicant and repeats [36] above. In addition, the original claim states:
I am scared that something worse will happen to me and my loved ones which will be a repeat of the abuses during the Pol Pot regime.(CB 19)
Mr Ek submits again that this is not a claim of fear of Pol Pot, but rather a comparison that the ruling party might inflict the same kind of abuse. If this is claim is understood correctly, the applicant would claim fear of the regime. This is certainly consistent with the report used by the Tribunal, which states:
Our contact warned, however, that the fundamental culture of Cambodian politics has not changed.(CB 90)
Mr Ek argues that the Tribunal took into account irrelevant information by making a finding about the return of the Pol Pok regime, which was not part of the claim. The findings and reasons of the Tribunal are (CB 64):
… DFAT advice is that persons of his background would be able to return to Cambodia without hindrance or harassment. While I appreciate that the applicant suffered under Pol Pot’s Khmer Rouge regime, as did millions of others, the Khmer Rouge no longer exists as a political force (CX 24935 above) and there is no real chance of further mistreatment of the applicant by them. I find that the applicant’s fear of persecution for reason of his political opinion is not well-founded.

These findings in relation to Pol Pot and the Khmer Rouge are simply the Tribunal being thorough and it committed no error in so doing.

I am not satisfied that the third ground can be sustained.
In respect of the fourth ground, Mr Ek argues that the country information before the Tribunal indicated that Cambodian policital history for the past 40 years has been volatile. Specifically:
·In 1970, there was a coup.
·In 1975, the Pol Pot regime was installed followed by four years of genocide.
·In 1978, Vietnam invaded Cambodia and installed a government.
·In 1993, there were general elections. However, by 1995 fighting between the parties had resumed, during which period members of FUNCINPEC were harassed and in some cases persecuted.
·In November 1997, the CPP and FUNCINPEC agreed to form a coalition government.
Mr Ek submits the Tribunal relied on the situation in Cambodia at the time of its decision:
in relation to the applicant’s fear of persecution by the CPP party, the applicant “would be able to return to Cambodia without hindrance and harassment.”
However, it failed to consider whether, in light of the volatile history of Cambodia, the political climate might change again thus exposing the applicant to a real chance of persecution. On this basis, the Tribunal either misapplied the “real chance” test or failed to take into account a relevant consideration, giving rise to jurisdictional error.
Mr Potts submits there is nothing to support the assertion that the Tribunal misunderstood the “real chance” test. The Tribunal stated the law in unobjectionable terms at the outset of its reasons. Equally, the Tribunal did not fail to take into account a relevant consideration. It knew it had to consider “the matter in relation to reasonable foreseeable future”. It did so in reaching the conclusion that it did based on country information. The Tribunal was quite aware of Cambodia’s chequered history but it did not need to specify overtly in its reasons whether it considered that the political situation might change again. It was implicit in the Tribunal’s reasons that it was sufficiently satisfied into the reasonably foreseeable future that it would not.
Mr Potts submits that the applicant is really cavilling with the Tribunal’s findings of fact, made utilising the country information to which it had regard. The weight given to country information is entirely a matter for the Tribunal: NAHI v Minister for Immigration at [11] per Gray, Tamberlin and Lander JJ.
Mr Ek’s response in respect of the fourth ground relies on Yusuf per McHugh, Gummow and Hayne JJ at [75], where Their Honours refer to Minister for Immigration v Guo (1997) 191 CLR 559 at 575:
In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
Mr Ek submits that the Tribunal did not consider the warning by the Department officer as quoted in the DFAT report that “the fundamental culture of Cambodian politics… has not changed.”(CB 90)
The Tribunal decision referred to certain country information in relation to Cambodia’s violent political history and thereby identified a number of specific examples. The Tribunal then found (CB 64):
In the present case, the Tribunal found that in light of the situation in Cambodia at the time of the Tribunal’s decision, the applicant would be able to return to Cambodia without hindrance or harassment.
I am not satisfied that the Tribunal misunderstood the law. The usual summary is set out in its decision in unobjectionable terms in accordance with the applicable principles.(CB 59) The Tribunal then stated (CB 60.5):
A person has a “well-founded fear” of persecution under the Convention if they have a genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or if it is mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
The Tribunal then continued (CB 60.9):
Whether an applicant satisfies the Convention definition is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
The Tribunal had correctly set out the test and enquiries it is required to embark upon. It also quoted substantially from the relevant country information. The country report records key factors about Cambodia and its modern history, including some of its difficulties. The Tribunal clearly referred to the difficulties and it can be inferred that it took it into consideration. Similarly, it is implicit from the other extracted country information, that the Tribunal considered all of that information and concluded as it did. On that very fundamental factual level, this ground of review cannot be sustained. The assertion the Tribunal has failed to take into account a relevant consideration is problematic. Ultimately, it is a matter for the Tribunal to weigh and assess country information. This view is consistent with the decision of the Full Federal Court in NAHI v Minister for Immigration. I accept the submission made by Mr Potts that the Tribunal has referred to certain country information in an appropriate way. It has drawn from that a conclusion. The weight to be given to the country information was entirely within the powers of the Tribunal. The fourth ground cannot be sustained.
Mr Potts submits that even if there is jurisdictional error, which he denies, relief should be denied to the applicant in the exercise of the Court’s discretion, on the basis of unwarrantable delay. The applicant was notified of the Tribunal decision under cover of a letter dated

22 December 1999. The applicant then joined the Muin and Lie proceedings on 30 June 2000 and withdrew from these proceedings on 20 June 2003. The current proceedings were not commenced until

1 July 2004, which is a delay of over a year after withdrawal from the Muin and Lie proceedings. There is no explanation for the extensive delay and the applicant must have known his rights in relation to judicial review.
Mr Potts submits that the unwarrantable delay of more than a year in commencing these proceedings is sufficient to justify the Court denying relief in the exercise of its discretion: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400; SZDSJ v Minister for Immigration [2005] FMCA 160 at [14] – [17]; SZDTN v Minister for Immigration [2005] FMCA 1293 at [45] – [60] (upheld on appeal SZDTN v Minister for Immigration [2006] FCA 175 at [16]); SZGPZ v Minister for Immigration [2006] FMCA 194 at [75] – [77]; and SZGTA v Minister for Immigration [2006] FMCA 648 at [61] – [67].
Even though Mr Potts did not point to any specific prejudice suffered by the respondents as a result of the delay, he submits that it is in the wider public interest to omit a party such as the applicant to refrain from seeking judicial review for over a year. Public policy dictates that there should be finality in administrative decision-making, particularly with respect to matters involving a person’s migration status. If an administrative decision is to be challenged, it ought to, in the ordinary course, be challenged properly.
Although Mr Ek did not initially file submissions addressing the delay issue, he indicated that there were a number of factors that caused the applicant’s delay in filing his application. The issues were:
a)The applicant had no English language skills and depended entirely on the assistance from the Cambodian community in Sydney;
b)The applicant was advised not to approach the authorities, and indeed given his traumatic past and experience of different regimes, such as during the Vietnam War and the Vietnamese occupation in 1979, the genocide inflicted by Pol Pot, the UNTAC period in 1993, one could accept that he had legitimate reason to be fearful of authorities;
c)That fear continued to when he applied for refugee status. People in the Cambodian community told him that if he was to reveal his injuries resulted from his political beatings in 1993 and 1996, the authority in this country would not grant him refugee status;
d)He was part of the in Muin and Lie proceedings but never understood how became part of the class action; and
e)The applicant had no prior access to a person of Cambodian background with legal qualifications until February 2003.
Mr Ek said that he met the applicant in the Villawood Immigration Detention Centre where he assisted in preventing the removal of the applicant from Australia. Until that meeting, the applicant had been represented by a migration agent, however, all documents submitted by that agent were poorly drafted, which resulted in Mr Ek’s substantial difficulties in the representing the applicant.

Conclusion

I acknowledge the considerable effort made by Mr Ek in his representation of the applicant and the difficult circumstances that he finds himself in respect of these proceedings. However, I do not believe that any of the grounds claiming jurisdictional error on behalf of the Tribunal can be sustained. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 28 August 2006