SZEXS v Minister for Immigration - [2005] FMCA 1258

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEXS v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1258

MIGRATION – RRT – Nepalese army officer feared persecution by Maoists and authorities – Tribunal found no Convention nexus for fear of Maoists – failure to address claim based on membership of particular social group – matter remitted.

Migration Act 1958 (Cth), s.483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

Applicant:

SZEXS

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2222 of 2004

Judgment of:

Smith FM

Hearing date:

25 August 2005

Delivered at:

Sydney

Delivered on:

25 August 2005

REPRESENTATION

Counsel for the Applicant:

Mr J. R. Young

Solicitors for the Applicant:

Simon Diab & Associates

Counsel for the First Respondent:

Mr T. Reilly

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 15 June 2004 in matter N03/47895.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated

14 November 2003.
The first respondent pay the applicant’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2222 of 2004

SZEXS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) which seeks judicial review of a decision of the Refugee Review Tribunal dated 24 May 2004 and handed down on 15 June 2004. The Tribunal affirmed a decision of the delegate which refused to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa.
In October 2003 the applicant arrived in Australia on a one month temporary business visa from Nepal, his country of nationality. On

29 October 2003 an application for a protection visa was lodged on his behalf by solicitors. In their covering letter the solicitors summarised the applicant's claims:
We have been instructed that the applicant fears persecution on the grounds that he is a member of a particular social group, in that he is an army officer and has been targeted by MAOIST insurgents. Also, he has been suffering discrimination within the Royal Nepalese Army. The applicant says that he will be killed if he were to return to Nepal.
The body of the application contained brief reasons in response to questions as to why the applicant sought protection in Australia:
40.    Why did you leave that country?
In order to save my integrity, life and my family members lives.
41.What do you fear may happen to you if you go back to that country?
I will be persecuted by Royal Nepalese Army as an Army deserter. I will be tortured, detained and imprisoned for life.
On top of that the Nepal Communist Party (MAOIST) insurgents will kidnap me and kill me due to my association with Royal Nepalese Army.
42.    Who do you think will harm/mistreat you if you go back?
Government Authorities
MAOIST insurgents.
43.    Why do you think this will happen to you if you go back?
Firstly, because of my service in Royal Nepalese Army and my performance against Maoist affected areas of Nepal.
Secondly, because of my integrity, in that I pleaded for peace, human rights and fair go within Royal Nepalese Army, whereas, the RNA operates under the lobby system. I never accepted to perform any immoral acts against innocent civilians labelling them to be Maoists just for the medals and promotion, which led me to flee Nepal to save my life even from RNA itself.
I believe I was targeted by the authorities because of my membership with particular social group, in that I always followed the conscience of the people and fought for justice.
The Maoist are very much desperate to kill me because I was assigned as a Commander of the biggest offensive action against them in (describing a district and date).
44.Do you think the authorities of that country can and will protect you if you go back? If not, why not?
Not at all, because there is not proper authority in Nepal which will dispense justice to a person like me.
The army power is so autocratic that no Court or Courts (judicial) can interfere its so called internal affair. On the other hand, the authorities do not have the infrastructure to solve or eradicate Maoist problem.
The application also indicated that the applicant wished to provide further evidence “such as my training testimonials, ID card etc. I will submit the evidence as soon as possible”. However, the delegate did not allow this opportunity, but decided the case two weeks later on 14 November 2003.
In his reasons for refusing the application, the delegate referred to country information concerning the situation of Nepal following the resumption of hostilities between the Maoist insurgents and the government in August 2003. The information included the following:
According to US State Department's country report on Nepal for 2002, the security forces and the Maoist have committed numerous human rights abuses. It is reported that the Maoists targeted civilians as well as members of the security forces and the security forces response has been so ruthless at times that it has led to the deaths of many innocent civilian deaths. The country information makes it very clear that both the security forces and the Maoists have been responsible for the killings of many innocent civilians since the people war was declared in 1996. Some 1000 deaths have been reported since hostilities resumed after the breakdown of the recent peace talks. (C:6, C:9, C:11, C:12)
The delegate then said that he had concerns about the claim due to the absence of evidence to support the claims that the applicant had been a military officer, and the fact that his passport stated his occupation as fireman. The delegate said:
Whilst I accept the applicant's claims that the Maoists may well seek to exact revenge against certain members of the RNA for their activities, the applicant has not demonstrated any linkage between him and the RNA that would have incurred the focus of adverse attention on him from the Maoists. By the same token the applicant has not demonstrated that he is a deserter from the RNA and that he deserted for the reasons he outlined, namely his opposition to the killing of civilians and his democratic views. The fact that there is an ongoing insurgency in Nepal does not of itself establish grounds for the applicant to make a case of Convention persecution for himself. I do not accept that the applicant has demonstrated that he has a real chance of Convention harm from either the Maoists or the RNA for the reasons sets out above.
The applicant appealed to the Refugee Review Tribunal on 8 December 2003 assisted by his solicitors. They forwarded numerous documents to establish that, in fact, the applicant was or had been a military officer in the army of Nepal who had reached the rank of Captain, and had served with United Nations peace keeping forces in Lebanon in 1999.
Prior to the applicant attending a hearing before the Tribunal on

4 May 2004 his solicitors also lodged other documents and a statement by the applicant. The documents included a testimonial from the officer in charge of a district in Nepal where anti-Maoist operations had been conducted by the army. This commended the applicant and his “team of (name) army company”.
Another document was a letter on the letterhead of the Nepal Communist Party (Maoist) and was dated May 2003. It referred to the applicant as having been identified as “actively working against our party's program”, and threatened:
Because of your involvement for a long time to destroy and damage our district level political wings, logistic wings and currently working as a head of the operation and intelligence bureaus against our movement in our base in (district) and other areas, you and your army unity are given this notice and warning that your unit will be destroyed and all be punished accordingly
Extracts from media reports were also given to the Tribunal showing army officers being assassinated by suspected rebels. One of them was shot “at his home in an upmarket residential area of the capital Kathmandu”. Another two were attacked “as they were leaving for work on Wednesday morning”. Another one was blown up by explosives “returning to his base from his home”, and that person's wife and two bodyguards also died.
The applicant's statement forwarded to the Tribunal referred to his education and career in the army, and included the following narrative:
12.As an Army officer I had no options but to obey the orders of the superiors as local army personnel. I was appointed as Intelligence and Operation Officer, and carried several operations to curb the Maoist insurgency.
13.I was stationed in the Maoist area for long time, since July 2001 until my departure from Nepal in September 2003. Although the internal policy of the RNA was to keep one officer maximum for 3 months in Operation and Operation Area, I was compelled to stay in there for more than 26 months because I did not have anyone in power.
14.I took part as commander on numerous operations. My life was at high risk in each and every operation, and each second of the day. Being a solider, I was prepared to die for the nation. My contributions to wipe out Maoist/terrorists activities were recognised by the RNA and I was awarded a Letter of Appreciation by the RNA. Annexed and marked “E” is the original letter and its English Translation.
15.As per the orders of the superiors, I was fully committed to perform my duties to the best of my abilities with a hope that my blood would bring peace and order in Nepal and ultimately the people of Nepal would get benefit. I never complained to my seniors to transfer me to the safe places. However, the situation where I was fighting for was deteriorated due to political intervention.
16.I never disobeyed the orders given by my superiors and followed the orders. Nevertheless, due to the Political intervention, we started receiving orders which would violate the human rights, for example, I was ordered to discharge firearms indiscriminately, which would have victimized a lots of innocents. I did not want to involve in merciless killings of civilians. I witnessed ruthless killings of innocents civilians by the Maoist and Government.
17.Gradually, the Government expanded killings and many innocent civilians, army and police personnel were sacrificed in the name of curbing Maoists insurgency. There was no difference among a Maoist Guerrilla, a child, woman and a fragile old man. All were to be killed in the operation. My integrity and conscience did not allow me to involve in these type of killings, which gave me courage to report the incidents to the Superior, who, instead of supporting me, rather threatened me to station me in (the district) for another 10 years.
18.I was denied my rights to face Staff College. I was supposed to pass the Staff College prior to turning 35 years of age.

I should have been given at least 3 chances to pass the test, however, I was not given even one chance.
19.On the other hand, I was on the top of the MAOIST Hit List. Some of RNA Senior Officers who were also on hit list, namely, Col. Kiran Basnet was shot dead in Kathmandu and Brigadier General Sagar Bahadur Pandy was ambushed and killed in Makwanpur. So many other officers were killed or injured, who were on the hit list. I was sent several warning letters by Maoists. Annexed and Marked “F” are some of them.
A letter received by the Tribunal on 23 April 2004 from the applicant's solicitors included the following submission:
In light of the information and documentation provided to this office, we submit that the applicant is a genuine protection visa applicant, whose fear of persecution is basically derived from the following Convention grounds:
·Political Opinion: The applicant’s fear of persecution is related to his political opinion, in that, he is a supporter of democracy and pleaded against Martial Law type of regime in Nepal.
·Member of particular social group, in that, being an Army officer who support human rights.
Convention grounds and well founded fear of being persecuted:
·The applicant’s claim fall under Convention being political opinion and being a member of particular social group.
Whether effective protection is available or there is a safe third country:
The applicant says that there is no protection available in his country of origin, in that, firstly, the authorities are unwilling to protect him and secondly, the authorities cannot protect him. He further says that he cannot seek protection in any other country.
Persecution
In this case, the applicant was discriminated while he was in employment and was not given opportunity to do the required course, namely, Staff College for further promotions. Although his bravery was acknowledge by some high ranking officials, he was prevented from his rights to get fair treatment by the authorities.
The applicant is in the hit list of the Maoist Insurgents, and even the authorities have will to provide him protection, they will be unable to protect him because many RNA officers were killed in broad day light in Kathmandu. On the other hand, the applicant was singled out by the authorities and was denied his basic human rights because he reported human rights violations by the hands of government authorities.
A transcript of the hearing before the Tribunal is in evidence before me. Both counsel sought to take from some observations by the Tribunal member some support for their respective arguments as to what was or was not considered by the Tribunal. However, I am not prepared to draw any conclusions from the transcript as to how the Tribunal thought about the applicant’s claims when it made its decision.
I do, however, accept the submission from the applicant's counsel that at the start of the hearing, the applicant did maintain a broad claim in relation to fear from Maoists:
Q14.What do you fear if you return to Nepal? …
A.If I go back to Nepal first of all I have got the danger from Maoists and after that I have also got danger from the government, His Majesty’s government of Nepal, if I go back to Nepal.
The Tribunal's statement of reasons contains the boiler plate description of the law in this area, but without any discussion about the law in relation to the Convention definition’s reference to “persecuted for reasons of … membership of a particular social group”.
The statement of reasons then provides several pages recounting the evidence that was before the Tribunal, without containing any analysis of that material in terms of the Convention definition. I do not think it necessary for me to extract further evidence from either the transcript or the Tribunal's summary of it. Essentially, the applicant appears to have kept to the claims he put forward in the documents that I have referred to above.
The Tribunal’s reasons contain one extract from a US State Department report on Nepal released in 2004. This referred to the Maoists having broken the cease fire in August 2003 “and resumed attacks against the government, security, and civilian targets”. There was also information corroborating the applicant's claims that “some members of the security forces committed numerous, serious human rights abuses”. The extract also said:
During the year, including during the cease fire, Maoists continued their campaign of torturing, killing, bombing, forcibly conscripting children, and committing other gross abuses, targeted at government agents but also including civilians.
The Tribunal's reasons for affirming the delegate's decision were short, and I shall set them out in their entirety and number the paragraphs:
Findings and Reasons
1)The applicant claims that he will suffer harm from both the Nepalese authorities and also from the Maoists should he return to Nepal. He also claims that he has suffered persecutory treatment from the Nepalese authorities in that he has been denied promotional opportunities in the army because of his conduct in the army and also because of his relatively low caste.
2)The Tribunal accepts the evidence submitted by the applicant that he has been a Nepalese army officer and has attained the rank of captain.
3)The Tribunal has considered the applicant’s claims with regard to his fear of harm from the Maoists but finds that any harm he might suffer at their hands would be as a result of his activities as a member of the Nepalese army and would not be for a Convention reason. (emphasis added)
4)The Tribunal has considered the applicant’s claims that he has been denied promotional opportunities. He claims that this has been because of his relatively lower caste and because of his views on the conduct of the operations against Maoists. However, the Tribunal notes that in his own evidence he enjoyed a relatively privileged life style as a captain and the Tribunal finds that any harm he has suffered as a result of not attaining the rank of Major is not sufficiently serious to constitute persecution.
5)The Tribunal has considered the applicant’s claim that he might suffer harm for having departed Nepal without gaining permission from the authorities. The Tribunal finds any harm he might incur from the army for such conduct would not be for a Convention reason but rather would be as a result of a law of general applicability to all serving members of the Royal Nepalese Army. Further, the Tribunal finds no evidence that any punishment he might be subjected to in this regard would be discriminately applied for a Convention reason.
6)In the light of the evidence before it, the Tribunal is not satisfied that the applicant was a well-founded fear of persecution for a Convention reason.
Conclusion
7)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. He therefore does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
The application for review in this Court contains a number of grounds attacking several elements in the Tribunal's reasoning. However, counsel for the applicant confined his written and oral submissions to grounds which are formulated in a further amended application:
D.The Tribunal made jurisdictional error by failing to consider whether the applicant feared persecution on the grounds of membership of a particular social group by reason of his position as a former officer of Royal Nepal Army.
E.In the alternative to D, the Tribunal made jurisdictional error by finding that the applicant’s position as a member or officer of Royal Nepal Army could not amount to membership of a particular social group.

These grounds focused upon paragraph 3, which I have emphasised above. This contains the Tribunal’s entire findings of fact and reasoning in relation to the applicant's claims to fear harm from the Maoists. Unfortunately, its brevity leaves obscure the Tribunal’s reasoning on what, in my opinion, were the central issues for its determination.
However, in argument before me, both counsel made their principal submissions based on a shared reading of the Tribunal’s reasoning. The real dispute then emerged: not about how the Tribunal reasoned; but about what Convention grounds for claiming fear from Maoists had been raised by the applicant in the material which was before the Tribunal.
Counsel for the Minister contended that the material before the Tribunal did not raise at all, and certainly not “clearly” (c.f. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [55], [63] and [68]), a claim to fear persecution by the Maoists as a member of a particular social group constituted by persons who would be identifiable in Nepalese society as army officers or former army officers or any sub group of that group.
He submitted that the submission from the solicitors which I have extracted above showed the contrary. He argued that, where the submission identified the applicant as fearing persecution because of being on “the hit list of the Maoist Insurgents”, the claim that was being put forward was that the applicant feared being individually targeted by reason of his personal circumstances only, including his personal activities in the army, and not as relating to any claim based on membership of a particular social group.
Counsel for the Minister argued that the Tribunal was correct in so reading the claims made in the material before it, and that it therefore made no error by addressing only a “personal” claim and then rejecting any Convention nexus. Its identification of the claims to fear Maoists as being based only on personal experiences, was shown in the Tribunal’s reference to “as a result of his activities as a member of the Nepalese army” (emphasis added). Thus counsel accepted that the Tribunal did not address a “particular social group” basis for fearing harm from Maoists, but argued that this showed no jurisdictional error since the material before the Tribunal did not raise nor require the Tribunal to address such a claim.
The opposing submissions from counsel for the applicant also proceeded by reading paragraph 3 as addressing only fears by the applicant of personal targeting by Maoists due to his individual activities when serving in the army. However, he contended that the Tribunal had overlooked the fact that the applicant's claims did clearly raise a claim based on his membership of a particular social group defined by reference to his army background.
On the reading of the Tribunal’s reasoning in paragraph 3 shared by both counsel, the question of jurisdictional error affecting the Tribunal decision becomes clear. There was no disagreement by counsel for the Minister that, if a claim was clearly raised which sought to relate the applicant's fears from the Maoists to his membership of a particular social group, then the omission of the Tribunal to address it would amount to jurisdictional error on well established authority. The principles were summarised by the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (supra):
63. It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (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 s 414 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.’
In that case the appellant, who was an Iranian citizen, put to the Tribunal that the marriage of his son to a Muslim woman in Iran had ramifications for him and his family. The Tribunal made no express reference in its discussion and findings to the claimed fears of persecution which arose out of the marriage by the appellant’s son to a Muslim woman although it made reference to the claim in its overview of the appellant’s case. The Court held that the Tribunal had failed to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. The Court held that the Tribunal had therefore failed to discharge its duty of review and had made a jurisdictional error.
Although the Tribunal’s reasoning in paragraph 3 is cryptic, I accept the reading of it adopted by both counsel. Moreover, as I shall suggest below, other readings would give rise to alternative findings of jurisdictional error.
I accept the submission of counsel for the applicant that there was clearly presented in the evidence which the Tribunal has not rejected, and which it appears to have accepted, a claim that the applicant feared that he would be targeted by the Maoists due to characteristics which he shared with a group of people, and which would be cognisable as a social group due to their particular characteristics as past or present members of the Nepalese army. The material also, in my opinion, raised for consideration by the Tribunal whether the applicant alternatively might be at risk of being targeted as a member of a sub group of people with a particular military background, including a sub group of army officers, or army officers who had been personally involved in anti insurgency operations.
In my opinion, the circumstances sketched in the material before the Tribunal which I have set out above plainly raised these claims and required their consideration by the Tribunal. The solicitor's covering letter to the visa application expressly did so by referring to “on the grounds that he is a member of a particular social group, in that he is an army officer …”. Clearly, membership of a particular social group relating to the applicant’s army background was being put forward as a contended reason for being his being targeted by Maoist insurgency.
The body of the visa application similarly identified the applicant’s fear of being kidnapped or killed by Maoists as being:
due to my associations with Royal Nepalese Army.
The country information to which I have referred above, and the media reports submitted by the applicant, also plainly raised a risk of being targeted while living in the general society of Nepal due to identification as a member of a group of army personnel.
I reject the contention from counsel for the Minister that the applicant's solicitor's submission could have been taken by the Tribunal to have narrowed the applicant's claims so as to exclude this basis for claiming protection. In my opinion, the Tribunal should have taken the contrary from this submission. Although its expression was somewhat diffuse, it expressly invoked a “Convention ground” of being a “member of particular social group, in that, being army officer who supported human rights”. It then identified the feared persecutors of this group as not only the discriminatory Army authorities, but also the Maoists who targeted people on a hit list “because many RNA officers were killed in broad day light in Kathmandu”. In my opinion, the submission did not limit the feared persecutors of people in that group to Nepalese army or government authorities, and did not exclude a fear that the Maoists would also be targeting the applicant as a member of the identified group. I reject the submission of counsel for the Minister that the reference in the submission “the applicant is in the hit list of the Maoist insurgents” did not suggest a fear based on shared characteristics with other people in the hit list. The very nature of a “hit list” suggests that the persons on might share some characteristics and are being targeted because of their sharing of those characteristics.
In my opinion, the overall material before the Tribunal clearly raised a need for the Tribunal to address a particular social group claim by the applicant in relation to his fears of suffering harm from the Maoists. In those circumstances the Tribunal was obliged to ask itself the questions identified, for example, in Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387 at [36]:
(T)he determination of whether a group falls within the definition of "particular social group" in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A., a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". As this Court has repeatedly emphasised, identifying accurately the "particular social group" alleged is vital for the accurate application of the applicable law to the case in hand.
The present Tribunal's reasons show it failing entirely to address the applicant’s express invocation of his membership of a group by asking itself any of those questions: whether about the groups referred to in his application and submission, or about any other group which might appear to emerged from the material. For that reason also, in my opinion, it has constructively failed to exercise its jurisdiction to review the delegate’s decision.
However, as I have indicated, my principal reason for finding jurisdictional error is my conclusion that the Tribunal overlooked or misunderstood the applicant's claims in relation to his fears from Maoists, by treating them as being solely referrable to his personal activities in the Army, and not to any claimed membership of a particular social group relating to his army background.
Counsel for the Minister also contended that activities as a member of an army could never give rise to a Convention reason for harm. His argument appeared to rely upon an inherent implication from the intended scope or objects of the Refugees Convention.
I am prepared to assume that an exposure to harms in the course of a person’s performance of military duties as a member of an Army might not be an exposure to “persecution” which is covered by the Convention, although I have been referred to no authorities which examine this situation. However, I do not accept that a person’s background as a military officer can be put aside as being incapable of providing characteristics which could mark out members of a particular social group so as to qualify for protection under the Convention from other harms directed at them by reason of that membership. In many societies a background of activities in an army will often characterise groups, the membership of which, as the wheel of political fortune turns, may mark someone out for persecution which would be undoubtedly be covered by the Convention. Stalin’s 1930’s liquidation of the Red Army’s officer class may provide examples of this, albeit not directly analogous to the situation of the present applicant. The victimisation of people in their civilian lives due to a history of fighting in a civil war might provide other examples. In my opinion, the applicant's claims before the present Tribunal did raise a Convention claim which the Tribunal has failed to address.
While accepting the common reading of the Tribunal's cryptic paragraph 3 which I have addressed above, I have been conscious that other readings might be open. I have considered them, notwithstanding that they were not espoused by either counsel. However, I consider that they would also reveal jurisdictional error if they were adopted.
For example, the Tribunal’s conclusion might be read as based on a finding that that the applicant’s claimed fear from Maoists arose only when he was actually engaged in his military duties, and that it therefore fell outside the Convention. However, in my opinion, this also would be a misreading of the claims that were in fact before the Tribunal. Inherent in the claims made by the applicant was that he would be at risk from Maoists, indeed: more at risk, when he was not performing his duties as an army officer but was off-duty at home, or on leave in Kathmandu, or had left or been expelled from the army. The Tribunal was required to consider whether he would be at risk from Maoists when he was circulating generally in Nepalese society, and whether this risk would be the result of his being identified by reference to a particular social group with a military background.
The Tribunal's reasoning on other issues which is found subsequent to paragraph 3, has elements which tend to support my opinion that it has not fully considered the claims which were before it. Thus, for example, by segregating in paragraphs 4 and 5 its consideration of the applicant's concerns about his relationship with the army authorities, the Tribunal has not reflected upon the implications of those concerns for his claims to fear the Maoists. If the Tribunal had reflected upon why the Maoists might be regarded as the principal agents of persecution which the applicant feared, then the applicant's concerns that the military authorities would not be interested in affording him normal levels of protection which they might afford to other officers might have taken on a further perspective. His concerns about the military authorities went to issues of whether he would be afforded effective protection against being targeted by Maoists as a result of his military background, as well as giving rise to separate claims in which army authorities were themselves the authors of discriminatory harms.
For the above reasons I consider that the applicant has made out grounds that the Tribunal's decision was affected by jurisdictional error, and he entitled to relief by way of writs of certiorari and mandamus.
The parties have agreed upon a costs order.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 9 September 2005