SZFPU v Minister for Immigration - [2005] FMCA 982

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFPU v MINISTER FOR IMMIGRATION

[2005] FMCA 982

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal asked itself the wrong question, misstated the applicant’s case or applied misapprehended facts in a manner constituting jurisdictional error.

Migration Act 1958

NAGV v MIMIA (2005) 213 ALR 668
Minister for Immigration & Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NABE v MIMIA (No 2) [2004] FCAFC 263
SZDVB v MIMIA [2004] FMCA 571
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Kianfar v MIMIA [2001] FCA 1754

Applicant:

SZFPU

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 251 of 2005

Judgment of:

Barnes FM

Hearing date:

17 June 2005

Delivered at:

Sydney

Delivered on:

22 July 2005

REPRESENTATION

Counsel for the Applicant:

Mr D. Jay

Solicitors for the Applicant:

Ebsworth & Ebsworth

Counsel for the Respondent:

Mr S. Lloyd

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 17 January 2005.
That a writ of mandamus issue requiring the Refugee Review Tribunal to re-determine the applicant’s application according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 251 of 2005

SZFPU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) made on 17 January 2005 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.

Background

The applicant, a citizen of Nepal, arrived in Australia on 5 February 1996. On 12 August 1996 he applied for a protection visa. The application was refused and the applicant sought review by the Tribunal. On 20 August 1998 the Tribunal affirmed the delegate’s decision and the applicant sought review of that decision in this court. On 28 September 2004 Federal Magistrate Smith quashed the decision of the Tribunal and remitted the matter for reconsideration according to law. It is that reconsideration which is the subject of these proceedings. All further references are to the reconsideration by the Tribunal.
In addition to the information provided to the Department and in the course of the first Tribunal review the applicant provided a written submission to the Tribunal on 3 December 2004. The applicant attended the Tribunal hearing on 3 December 2004. He provided further written submissions on 17 December 2004. His adviser provided two very similar written submissions both dated 1 December 2004 and a post-hearing submission. A number of items of country information were provided to the Tribunal by or on behalf of the applicant.
In his protection visa application the applicant had claimed to be a prominent member of the United Peoples Front (UPF) (also referred to as the Communist Party of Nepal (Maoist) (CPN)) and to have left Nepal to escape harassment by the authorities due to his political opinion. He claimed that as a supporter of the UPF, which had launched the “people’s war” in 1996, he feared harassment and interrogation by the authorities in Nepal. He claimed that he had first left Nepal in 1985 to study in India to avoid harassment by reason of his membership of the UPF and that in 1995 he had been severely beaten by police at a political demonstration. In the course of the first Tribunal review he also claimed to fear members of his own party because he did not support the “people’s war”.
In pre-hearing submissions the applicant’s adviser claimed that the applicant was an active member of the CPN (Maoist) as a result of which many people had become aware of his involvement with the party. The submissions claimed that “the applicant feared that he could be targeted by the CPN (Maoist) for leaving and by the Nepalese authorities for being a former member of that party.” It was contended that he still had this fear. Reference was made to the written submission of the applicant which is discussed below. The adviser also claimed that the applicant feared he would have no way to protect himself as he could not go to the authorities because “as a former member of the party he could be arrested and punished by the authorities”. In the first (but not the second) pre-hearing submission the advisor claimed that the applicant’s fear was well-founded given possible risks to his safety “given the human rights abuses in Nepal by government agents of suspected Maoists” as well as by the Maoists of those they considered “traitors for leaving the Party”.
In his hand-written pre-hearing written submission, the applicant set out at length details of his past membership of and involvement with the UPF, including his participation in mass meetings and demonstrations, working for election campaigns, sticking up posters and distributing leaflets and messages in public. He claimed that he had received threatening telephone calls and had been subject to harassment and had feared sudden attacks by government forces as well as by opposition party members while he was in Nepal. He gave details of a severe beating which he claimed was inflicted on him by police in the course of a 1995 political demonstration.
The applicant stated that he did not agree with the idea of insurgency and armed struggle, that he could foresee a full-scale civil war and hence that he had left his country giving up his “political ideologies” as well. He claimed that despite a fear that he was putting his life in serious danger, he had returned briefly to Nepal in late 1996 to attend his father’s funeral, during which time he had kept a low profile. However he claimed that there had been a drastic escalation of violence in Nepal from 1996 to the present day and that the authorities were now well-equipped with intelligence and sophisticated equipment (suggesting that the absence of such equipment may have explained why he had been able to visit in 1996 undetected and unharmed).
The applicant claimed that in November 2001, when the state of emergency was declared in Nepal, government authorities visited his house twice inquiring about his whereabouts. He claimed that his sister also warned him not to return to Nepal for the funeral of his mother (in early 2004). He claimed that he had destroyed all his party membership documents and related written evidence before he left for Australia to protect his family. He referred to events in Nepal since the declaration of the state of emergency and claimed that it would be impossible for him to retain a low profile in Kathmandu among his neighbours because they would be aware of his presence and that as a newcomer he would be watched if he relocated, particularly without an ID card. He also addressed the possibility of relocation to India. The applicant then claimed:
If I’m to leave the UPF in Nepal I would be targeted by its members and if I stayed as a UPF member I would be targeted by the authorities. I will therefore be seen or be labelled as a member of a “particular social group” and the foundation of my fears as a former member of the UPF is that the authorities (govt. agencies, army, police etc) and their supporters would adopt severe persecutory measures against all “perceived supporters” or members of a terrorist or insurgency party such as myself regardless of the extent of my actual involvement in that party about 9 – 10 years ago.
He described unlawful killings and mistreatment by the police and security forces, stating that he had come to know:
…that the vast majority of the victims have been civilians targeted for their real or perceived support for the UPF (CPN - Maoists); others were Maoists deliberately killed after they were taken prisoner or killed instead of being arrested.
In its reasons for decision the Tribunal recorded that in the Tribunal hearing the applicant essentially repeated his claims, described the two approaches to his family by the police seeking to find him in 2001 and told the Tribunal that during the state of emergency “the authorities arrested anyone suspected of supporting the Maoists. He stated he was afraid to return to Nepal because the authorities consider him a Maoist”. He indicated that his family had not given him many details of the police visits to his home in 2001 but essentially had told him not to return to Nepal.
The applicant also told the Tribunal that he had abandoned his political beliefs in January 1996 and had no further contact with his former political associates. According to the Tribunal he claimed that:
As the insurgency continued, and the government became more ruthless in its attempts to quash the Maoist uprising, he became a person of interest to the authorities because of his former association with the UPF. The applicant stated that he may be safe in Nepal for a short time but eventually the authorities will seek to harm or kill him because they consider him a Maoist.
The possibility of relocation to India and relevant country information was discussed by the Tribunal with the applicant. The Tribunal recorded that it commented in the course of the hearing that the applicant:
…ceased to be a Maoist, or politically active in any capacity, in 1996 before the people’s war began, that he did not have the profile of a Maoist or insurgent and had not participated in activities of a political nature which would attract the interest of the authorities in Nepal or India. The applicant replied that he was an active Maoist before 1996 and for that reason the authorities in Nepal and India will assume he continues to be a Maoist. He stated the authorities in Nepal already demonstrated an adverse interest in him when they visited him home in 2001. He argued the authorities in India will also consider him an insurgent.
………
The applicant’s adviser argued the applicant will be targeted by the authorities in Nepal due to his former association with the Maoists. She argued the government of Nepal has committed human rights abuses against Maoists, and those suspected of being Maoists, and it has no mechanism or process by which Maoists can seek or obtain protection.
After the hearing the applicant’s adviser provided a submission addressing the issue of relocation to India. The applicant also provided a further submission. He stated that when he said he had given up his political ideologies he actually meant to say that he was not in support of the Maoist insurgency but was in support of the fundamental demand of the party as to the establishment of a republic rather than a constitutional monarchy. He claimed that as a result of “my party’s” insurgency activities he would be at risk of persecution for reasons of his association with the party during the pre-people’s war period when he was “actively taking part in its formative years”. He referred to his “previous association with the UPF as an active member”. He suggested that the presence of government authorities in his house in 2001 was an indication that the authorities were still interested in him and still on the lookout. He addressed the possibility of relocation in Nepal or to India, claiming that he would have to submit identification to get a new ID card risking exposure himself to the authorities “as a former member.” He claimed that the Indian government had demonstrated that it would intervene and “prevent Maoist activities or its suspects in its territory”.

The Tribunal decision

The Tribunal affirmed the decision under review. It accepted the applicant’s claims that he was a member of the UPF, was beaten by police in 1995 during a demonstration, that he left the country on the eve of the people’s war in early 1996 and also that in 2001, when the state of emergency was declared in Nepal, the authorities visited his family on two occasions and asked questions regarding his location.
The Tribunal set out the applicant’s claim that the security forces in Nepal “consider him a Maoist and will seek to detain and harm him for his political views” as well as his claims to fear harm from his former allies in the UPF and Maoists generally for fleeing the country rather than participating in the people’s war and that he would not have access to state protection in Nepal or effective protection in India.

It described his initial claim to have abandoned his political beliefs in 1996 and his subsequent claims to support the basic demands of his party and that his long absence from Nepal and westernisation would further make him a person of interest to the authorities and the Maoists in Nepal. The Tribunal found as follows about the applicant’s claims relating to Nepal:
The Tribunal has considered material from external sources regarding the people’s war in Nepal as summarised above. The Tribunal accepts the applicant’s claim that both sides in the war have committed human rights violations against each other and citizens of Nepal. The Tribunal also accepts the applicant’s claim that individuals suspected of being Maoists have been targeted by the authorities in Nepal and those individuals do not have access to state protection.
However, the Tribunal has formed the view that the authorities and Maoists in Nepal target individuals implicated in the people’s war. The Tribunal is not satisfied by the evidence provided by the applicant or obtain from its own resources, that former members of the UPF are targeted by the authorities or Maoists in Nepal. The Tribunal is also not satisfied individuals such as the applicant, who have no involvement in the insurgency, are persons of particular interest to the authorities or Maoists in Nepal. The Tribunal is satisfied the applicant will not be a person of interest to the Maoists or the authorities in Nepal, in the reasonably foreseeable future, as he has not participated in any activities of a political nature since January 1996. The Tribunal finds the applicant’s fear, that Maoists and the authorities will seek to harm him for reasons of political opinion, is not well-founded.
The Tribunal accepts the applicant’s claim that in 2001 the police made enquiries regarding his location when a state of emergency was declared. The Tribunal is satisfied that as a former member of the UPF, and a person who had difficulties with the authorities before 1996, the authorities sought to locate him when a state of emergency was declared. However, the Tribunal does not accept the enquiries in 2001 indicate an ongoing or particular interest in the applicant by the authorities. The applicant claims that everyone associated with the Maoists was investigated when the state of emergency was declared. The Tribunal is satisfied the applicant, a person with no involvement in the people’s war or any other political activities throughout the conflict, will not be a person of ongoing or particular interest to the authorities in Nepal.
The Tribunal addressed the claims that the applicant’s sister told him in 2004 not to return for his mother’s funeral and that it was not safe for him to return to Nepal. The Tribunal had regard to the fact that the applicant had no “meaningful information” to support the claim that it was not safe for him to return to Nepal for his mother’s funeral in 2004 or details from his sister to indicate continuing interest in him by the authorities. It was not satisfied that he was a person of interest or concern to the authorities in Nepal in 2004.
The Tribunal also found that it was not satisfied that the applicant’s political opinion alone (having regard to his claim that he supported Maoist ideology/aims) would attract the adverse interest of authorities in Nepal. It found that as he had not participated in any activity of a political nature since 1996, that his political opinion alone would not attract the adverse interest of the authorities.
The Tribunal also rejected the applicant’s claim that the Maoists would seek to harm him because he did not participate in the people’s war.

It found that his fear in this regard was not well-founded, stating that it was not satisfied by the evidence before it that:
former members of the UPF, who did not condone or participate in the people’s war, have been targeted or harmed by the Maoists in Nepal.
The Tribunal found that the applicant was not a person of interest to the authorities in 1996 when he left the country and would not be a person of interest to the authorities or Maoists in Nepal in the reasonably foreseeable future. It was not satisfied that he had a well-founded fear of persecution in Nepal for reasons of political opinion.
The Tribunal made an alternative finding, consistent with Minister for Immigration & Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543, to the effect that the applicant could obtain effective protection in India and, as a result, was not owed protection obligations by Australia. Counsel for the respondent conceded that the Tribunal’s reasoning in this regard was inconsistent with the recent decision of the High Court in NAGV v MIMIA (2005) 213 ALR 668 and that this alternative finding could not support the validity of the decision. The validity of the decision thus turns on whether the Tribunal erred in the way it dealt with the applicant’s claims relating to Nepal.

This application

The applicant sought review of the Tribunal decision by application filed in this court on 24 January 2005. In an amended application filed on 29 April 2005 the applicant raises three grounds of review. The second and third of these relate to the findings about effective protection in India. In light of the respondent’s concessions it is not necessary to consider further these grounds. The critical issue is whether the Tribunal’s decision involved a jurisdictional error on the basis that:
The Tribunal erred by asking itself the wrong question as to the applicant’s basis for claiming he had a well-founded fear of persecution in that it found that former members of the United Peoples Front (UPF) were not “persons of particular interest” to government authorities or the UPF, but failed to ask or consider whether the applicant had a well-founded fear of persecution as an active member or, alternatively, suspected member of the UPF, particularly in circumstances where:
(a)there was no evidence that the government authorities or the UPF were aware that the applicant had or has renounced membership of or association with the UPF; and
(b)the Tribunal accepted the applicant had been the subject of violence by authorities in 1995 and of police inquiries in 2001; and
(c)the Tribunal accepted that individuals suspected of being Maoists have been targeted by the authorities in Nepal and those individuals do not have access to state protection.
Mr Jay, counsel for the applicant contended that the Tribunal “misstated the applicant’s case and applied misapprehended facts” to determine whether he had a well-founded fear of persecution and so committed a jurisdictional error. It was said that in determining whether the applicant had a well-founded fear of persecution, the Tribunal had asked itself whether “former members” of the UPF were targeted by the authorities or the Maoists in Nepal and made a finding that it was not satisfied that former members were so targeted. However it was submitted that the Tribunal asked itself the wrong question and identified the wrong issue regarding the applicant’s claims. In written submissions this was said to involve an error because there was no evidence or no adequate evidence before the Tribunal regarding the manner in which either the government authorities or the Maoists treat “former members of the UPF” and no evidence that the government or the Maoists were aware that the applicant was a “former member of the UPF” and would therefore treat him in accordance with the reasoning of the Tribunal about the treatment of former members. It was submitted that having accepted that individuals suspected of being Maoists have been targeted by authorities, that the applicant was the subject of political violence in 1995 and was the subject of active inquiries in 2001 (five years after he left Nepal) the Tribunal was in error in then finding that the applicant’s political opinion alone would not attract the adverse interest of the authorities and to conclude that the applicant did not have a well-founded fear of persecution.

In oral submissions Mr Jay clarified that the applicant’s contention was that he had made clear in his written submissions to the Tribunal that one foundation for his fear was that he would be perceived to be a supporter of the UPF (which it was contended was analogous to being a suspected member of the UPF). In other words, in addition to his claims that he feared persecution because he had been a former member of the UPF, he had claimed that he feared persecution because he would be perceived as a UPF or Maoist supporter. It was contended that the Tribunal failed to address this aspect of his claims in asking whether “former members of the UPF are targeted by the authorities”.
In support of this contention Mr Jay referred to the applicant’s pre-hearing written submission to the Tribunal (which was tendered by counsel for the applicant), in which he not only detailed his former membership and past active involvement with the UPF and an assault by police during a 1995 political demonstration, but also claimed that he would be seen or be labelled as a member of a particular social group and that:
the foundation of my fears as a former member of the UPF is that the authorities (govt. agencies, army, police etc) and their supporters would adopt severe persecutory measures against all ‘Perceived Supporters’ or members of a terrorist or insurgency party such as myself regardless of the extent of my actual involvement in that party about 9 – 10 years ago.
The applicant also claimed in that submission:
I also came to know that the vast majority of the victims [of security forces] have been civilians targeted for their real or perceived support for the UPF…
It was said that in this submission the applicant was making a claim that it was not necessary that someone be known to be a member of the UPF to be targeted by the authorities, but that it was sufficient that someone be a suspected member. Independent country information submitted to the Tribunal by the applicant’s adviser supported this claim. The information in question, an October 2004 publication by Human Rights Watch entitled “Between a Rock and a Hard Place: Civilians Struggle to Survive in Nepal’s Civil War”, gave details of summary execution of suspected Maoists in Nepal.
In light of these claims and this material the applicant contended that it was of significance that the Tribunal accepted the applicant’s claim:
that individuals suspected of being Maoists have been targeted by the authorities in Nepal and those individuals do not have access to state protection.
It was contended that on the basis of the applicant’s past active membership of and involvement with the UPF and his 1995 beating (matters accepted by the Tribunal), the applicant would at least be considered by the government of Nepal to be a suspected Maoist if he returned and that such a claim had to be addressed by the Tribunal in light of its acceptance that suspected Maoists had been targeted by the authorities and did not have access to state protection. It was contended that whether or not the applicant was merely a former (and not a present) member of the UPF (a matter on which there seemed to be some difference between the submissions of the applicant and those of his adviser) was not dispositive of this ground, as the issue which had to be considered by the Tribunal was whether the applicant had a well-founded fear not only as a former member but also as a suspected member or perceived supporter of the Maoists (and that this was so whether or not he had in fact renounced membership or retained sympathy with the cause and even if he had not in fact engaged in any activity of a political nature since 1996).
Mr Jay submitted that, having accepted the applicant’s claims in respect of the treatment of suspected Maoists, the Tribunal then erred in that it considered and answered the wrong question that is, whether or not former members were targeted. In so doing the Tribunal made its decision by reference only to the applicant’s claims to be a former member of the UPF on the basis that the government knew that he was only a former member when there was no evidence before the Tribunal that the government was aware that the applicant was only a former member. Rather the evidence was that he was a known member of the UPF and that he feared persecution as a perceived or suspected member of the UPF if he returned to Nepal. On this basis the Tribunal should have asked itself whether a known or suspected member of the Maoists, who had been beaten by the police in 1995 and subject to police enquiries as to his location in 2001, had a well-founded fear of persecution in light of the acceptance of the evidence that individuals suspected of being Maoists have been targeted by the authorities in Nepal.
While the Tribunal was not satisfied that individuals who had had no involvement in the insurgency were persons of particular interest to the authorities, it was contended that, particularly in light of the 2001 inquiries of the applicant’s family, there was no evidence that the Nepalese government or authorities knew or would know that the applicant had had no involvement at all in the insurgency or with the UPF (this being a different issue to the question of whether the authorities knew that he had not actively participated in the insurgency).
Mr Lloyd, counsel for the respondent, submitted that the Tribunal did not err in the manner contended and that it had stated the “correct question” both in its outline of the law and its conclusion – the correct question being whether the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. It was contended that the Tribunal also understood and correctly addressed the question of whether the applicant had a well-founded fear of persecution in Nepal for reasons of political opinion.
Mr Lloyd noted that it had been acknowledged by counsel for the applicant that the applicant’s adviser had made a submission to the Tribunal that the applicant feared harm as a former member of the party from the authorities. In pre-hearing written submissions the adviser had claimed that the applicant “feared that he could be targeted by the CPN (Maoist) for leaving and by the Nepalese authorities for being a former member of that Party”. It was contended that in making the finding about its lack of satisfaction that former members of the UPF were targeted by the authorities or Maoists, the Tribunal was not proceeding on the basis that that was the whole of the test, but rather was dealing with a particular aspect of the applicant’s claims, as part of his claim was that he feared being targeted for being a former member of the UPF.
The respondent accepted that the applicant had also made a claim to fear persecution as a perceived current member or supporter of the UPF (but not that he had claimed there would be a perception that he was actually implicated in the people’s war), but contended that the Tribunal rejected the claim that the applicant would be perceived as being a Maoist. It was submitted that while the Tribunal commenced its consideration of the applicant’s claims by accepting that “individuals suspected of being Maoists have been targeted by the authorities in Nepal and those individuals do not have access to state protection”, reading the Tribunal reasons for decision fairly and as a whole (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259), the Tribunal was not, in this part of its reasons for decision, accepting that all those suspected of being Maoists were targeted by the authorities. Rather it was said that in the context of the whole of the Tribunal reasons for decision the subsequent paragraph made it clear that in this part of its reasons the Tribunal was accepting that some, but not all individuals suspected of being Maoists have been targeted. It was said that this was clear from the statement that the Tribunal was of the view that the authorities and Maoists in Nepal target individuals “implicated in the people’s war” and that it was not satisfied that former members of the UPF are targeted by the authorities or that those (such as the applicant) who had no involvement in the insurgency were persons of particular interest to the authorities.
This view was said to be supported by the Tribunal’s consideration of the applicant’s claims about the enquiries made of his family in 2001. The Tribunal described the applicant’s claims that “everyone associated with the Maoists was investigated when the state of emergency was declared” but went on to find that the applicant, a person with no involvement in the people’s war or any other political activities through the conflict “will not be a person of ongoing or particular interest to the authorities”. In other words it was contended that the Tribunal clearly drew a distinction between those Maoists or suspected Maoists with an involvement in political activities and those without such an involvement. It was said that this distinction became all the more clear in the Tribunal’s consideration of the applicant’s claim to fear persecution by reason of his political opinion as a supporter of Maoist ideology/aims. Again the Tribunal drew a distinction between those holding a political opinion (which would not attract the attention of the authorities) and those of that opinion and participating in political activities.
It was also contended that Tribunal findings should be seen against the backdrop of the country information upon which it apparently relied, in particular a report from the Belgian Commissioner General for Refugees and Stateless Persons: “Mission to Nepal” 21 January to

9 February 2002, published in March 2002 (the Belgian Report) which reported on research to verify the extent to which asylum seekers’ claims of persecution corresponded to the objective situation in Nepal. This report defined what groups (which political profile) risked persecution by the Nepalese government. It dealt first with what it described as “Maobadi” members (or Maoists) in relation to whom it concluded that not all ranks of the Maoists were targeted to the same extent, at least not until the state of emergency proclaimed on

26 November 2001, that the Nepalese government would “mainly” be after the Maoists leaders and militants in the field and that several contacts had stated that common members of the party “at least until the state of emergency had been proclaimed” had not been persecuted systematically on a national level. The next category considered in the report was described as “Maoist sympathisers” being Nepalese people who felt sympathy for some or all of the political demands of the Maoists, but who were not members of the party but participated in one or more cultural manifestations of the party. It was reported that, according to contacts, sympathisers should not have well-founded fear of persecution on a national level and although there were cases of persecution by the Nepalese police of people with such a profile this persecution stayed (at least until the state of emergency proclaimed on 26 November 2001) local and that the low profile Maobadi sympathiser or someone who was only suspected of having Maobadi sympathies did not risk persecution on a national basis – although in the most “discordant” districts (of which Kathmandu from where the applicant came, was not one) such persons did risk being persecuted by the local police. It was suggested that at least until 26 November 2001 such people could avoid violence and persecutions in their district by using an internal flight alternative.
Mr Lloyd contended for the respondent that on the basis of the information in the Belgian Report (which it was open to the Tribunal to prefer) the finding that low level members, suspected members and sympathisers did not have a well-founded fear of persecution from the authorities was open to the Tribunal. It was suggested that this evidence seemed to have informed the Tribunal’s distinction between persons, such as the applicant, who had been away from their country and others who had been implicated (because of military or active involvement with the Maoists). It was submitted that this was evidence to support the view that the Tribunal made a distinction between supporters with such a profile and others.
The respondent also contended that it was clear that the applicant did not claim, and the Tribunal did not find, that he had participated in any activities of a political nature since January 1996 or that he had otherwise been active or implicated in the activities of the Maoists.

It was contended that there was nothing to require the Tribunal to address the issue of whether the applicant was in fact an “active Maoist” after 1996, or whether the authorities were aware that he was out of the country. It was suggested that while there was nothing expressly stated to this effect, the applicant’s evidence about the 2001 enquiries by the authorities was an indication that by that time the authorities became aware that the applicant was out of the country and that the court should not find that the Tribunal erred in failing to respond to a claim that was not made expressly. Moreover, the applicant had claimed that the government had sophisticated equipment now to support its intelligence. On his own evidence it would be relatively easy for him to establish that he had been out of the country since 1996. Further, there was nothing positive to implicate him in the war. It was contended that there was nothing to require the Tribunal to deal with any claim that he might be suspected to be an active member (in the sense of implicated in the people’s war) as he had not put his claim on that basis.

Conclusions

The ground in the amended application is framed as a contention that the Tribunal asked itself the wrong question. As recognised in submissions for the applicant, underlying this contention is a claim that the Tribunal misstated the applicant’s case in the findings and reasons part of its decision. It is clear that the Tribunal is required to deal with the case raised expressly by the applicant or which is raised “squarely” on the material before it (NABE v MIMIA (No 2) [2004] FCAFC 263 and see Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389). If a claim is raised by the evidence, even if not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal, the Tribunal may fall into error (NABE at [63]).
In this instance, while the original claims of the applicant (made in August 1996) were that he feared persecution as a strong supporter and prominent member of the UPF, not surprisingly the nature of his later claims reflected the passage of time and subsequent developments in Nepal. A claim based on the terrorist insurgency activities of the UPF after he had left Nepal was made in the course of his first application for review by the Tribunal. (see SZDVB v MIMIA [2004] FMCA 571 at [8] and [14]). In the course of the Tribunal review under consideration the applicant claimed to have given up his political ideologies (which he explained as meaning he did not support the Maoist insurgency although he maintained support for the fundamental demands of the party). Apart from such support he did not, by the time of his submissions to the second Tribunal review (late 2004), claim to in fact be an active member of the UPF. He did not claim to have had any active involvement in the people’s war. Nor was a claim of actual involvement (in any sense) in the people’s war or of active membership during that time or at the time of the decision raised on the material before the Tribunal. On the Tribunal account of what occurred in the hearing, the applicant stated that he had no further contact with his former political associates after he abandoned his political beliefs in January 1996. There is nothing to suggest that the material before the Tribunal raised any claim that he had in fact participated in activities of a political nature during the people’s war. In these circumstances I am not persuaded that the Tribunal erred in failing to ask or consider whether the applicant had a well-founded fear of persecution as an “active member” of the UPF or active participant in the people’s war.
That is not however, determinative. The applicant did claim that he would be suspected of being a Maoist or Maoist supporter by the authorities if he returned to Nepal in addition to his claim to fear persecution based on the fact that he was a former member of the UPF. His claim was not simply that he would be suspected because he was a former member. He claimed that he had been a prominent and active member of the UNP before leaving Nepal, during which time he had experienced mistreatment as such a member. He also claimed that the authorities made enquiries about him in 2001 and that in 2004 he was told it was not safe to return – even for his mother’s funeral. Counsel for the respondent accepted that the applicant had made a claim that he feared persecution as a perceived current member or supporter of the UPF. What is critical is whether, having accepted that individuals suspected of being Maoists had been targeted by the Nepalese authorities and do not have access to state protection, the Tribunal in fact dealt with the applicant’s claims in this respect or merely with his claims based on former membership of the UPF.
In determining this issue I have taken into consideration the whole of the Tribunal decision and the material before the Tribunal and borne in mind that the Tribunal decision should not be read with an eye too keenly attuned to error (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) but should be read fairly and as a whole. In its description of the evidence at the hearing the Tribunal referred to the applicant’s claim that the authorities consider him a Maoist or assume he continues to be one, but it did not refer to the claim in the applicant’s pre-hearing written submission (expressed in terms of “particular social group”) to fear persecution as a perceived supporter or member of a terrorist or insurgency party.
As set out at [15] above, after stating that it had considered material from external sources regarding the people’s war the Tribunal accepted the applicant’s claims about human rights abuses and that individuals suspected of being Maoists have been targeted and do not have access to state protection. On its face, this finding would seem to apply to the applicant’s claims to fear persecution as a perceived current member or supporter of the UPF (the Maoists). It is therefore necessary to consider whether, despite this generally expressed finding, the Tribunal did go on to ask itself the right question and deal with this aspect of the applicant’s claims in finding that he had no well-founded fear of persecution.
It is helpful to set out again the paragraph immediately following the finding about suspected Maoists being targeted. The Tribunal stated:
However, the Tribunal has formed the view that the authorities and Maoists in Nepal target individuals implicated in the people’s war. The Tribunal is not satisfied by the evidence provided by the applicant or obtain from its own resources, that former members of the UPF are targeted by the authorities or Maoists in Nepal. The Tribunal is also not satisfied individuals such as the applicant, who have no involvement in the insurgency, are persons of particular interest to the authorities or Maoists in Nepal. The Tribunal is satisfied the applicant will not be a person of interest to the Maoists or the authorities in Nepal, in the reasonably foreseeable future, as he has not participated in any activities of a political nature since January 1996. The Tribunal finds the applicant’s fear, that Maoists and the authorities will seek to harm him for reasons of political opinion, is not well-founded.

Read in context, the first finding in this paragraph (that individuals implicated in the people’s war are targeted) does not sufficiently address the “suspected supporter or member” aspect of the applicant’s claims. These claims were not based on a fear arising from actual involvement in the people’s war. The next finding addresses the position of “former members” – this was one basis for the applicant’s claim but, as indicated above, was not the only basis for his claim that he would be suspected to be a supporter or Maoist. In this regard, while his adviser did focus on his situation as a former member, the applicant’s written submissions and even the Tribunal account of what he said in the hearing were not so limited. In asking whether “former members” of the UPL are targeted by the authorities or the Maoists the Tribunal dealt only with part of the applicant’s claims. There was no evidence before the Tribunal that the government was aware the applicant was a “former member” and not a present member so that it would treat him in accordance with this reasoning and not suspect him of still being a Maoist or a supporter. The fact that he was out of the country for a lengthy period does not compel such a conclusion.
While the Tribunal went on to find that it was not satisfied that individuals such as the applicant, who have no involvement in the insurgency, are persons of particular interest to the authorities, again this addressed the fact that he had not actually been involved in the insurgency. While the applicant did not expressly claim that he feared persecution because of a perception by the authorities that he was or may have been actively involved in the people’s war, in addition to the express claim in his pre-hearing written submission, implicit in his claims about the security forces taking the law into their own hands, the two visits of government authorities to his home in 2001 and that the authorities will assume he continues to be a Maoist, is a claim that, regardless of the extent of his actual involvement in the party, he will be perceived to be a supporter or member of a terrorist or insurgency party – and to that extent perceived as implicated in the people’s war. The Tribunal dealt with the position of those in fact implicated in the people’s war; it did not deal with the claims of perceived implication.
Moreover, while the Tribunal also considered whether the events of 2001 indicated an “ongoing or particular interest in the applicant by the authorities”, the applicant’s claim was not limited to being officially targeted by the authorities but included a claim to fear security forces and police (as well as Maoists) who had taken the law into their own hands against perceived supporters – in a situation where, as the Tribunal acknowledged, there was no access to state protection. The findings about 2001 dealt only with the question of whether a former active member (not a former active member suspected of still being a Maoist supporter) would be of interest to the authorities.
Further, the Tribunal’s finding that as the applicant had not participated in any activity of a political nature since 1996, his political opinion alone would not attract the adverse interest of the authorities is at odds with its acceptance that suspected Maoists would be targeted by the authorities and does not address the possibility that he may be suspected to have had some form of involvement in the insurgency or with the UPF during the time of the people’s war or deal with his claim in terms of imputed political opinion or to be a member of a particular social group.
Counsel for the respondent submitted that implicit in these findings of the Tribunal was a rejection of the claim that the applicant would be perceived as being a Maoist and a finding that not all suspected Maoists would be targeted. However, I am not persuaded that such an implication should be drawn from the Tribunal consideration of the position of former members and those involved in the insurgency. This is particularly so given the absence of any reference to the applicant’s characterisation of this aspect of the claim as involving membership of a “particular social” group in his pre-hearing written submission. While the Tribunal found that the authorities target individuals “implicated” in the people’s war, it also accepted that individuals “suspected of being Maoists” were targeted. It dealt with the former issue (finding that the applicant had not been involved in the people’s war) but its findings do not necessarily address the separate issue of suspected members or perceived supporters.
That there may be such a distinction is in fact consistent with the country information cited by the Tribunal and referred to by counsel for the respondent – the Belgian Report. That report drew a distinction between categories of persons, in particular Maoists, and Maoist sympathisers (as well as teachers suspected of Maobadi membership and members of satellite organisations). However the Belgian Report was prepared shortly after the state of emergency was proclaimed and it drew a distinction between the position before and after the proclamation of the state of emergency. The report noted that on

26 November 2001 the Nepalese government had declared the Communist Party (Maoist), its sister organisations and any other organisation and individuals that support the Maoist Party and its activities to be terrorists. Importantly the Belgian Report concluded that it was too early and there was not enough objective information available at the time to determine to what extent the Nepalese government would apply this “very generalised profile description of ‘terrorists’”. Part of the report’s conclusion was that since the peace negotiations had broken off and the state of emergency proclaimed in November 2001, the situation in Nepal the situation appeared to be “deteriorating strongly” and that there was some confusion as to the then present (as at March 2002) situation, although until that time persecution of Maoists by the Nepalese government could not be considered as systematic.
Moreover, more recent information provided to the Tribunal by the applicant – such as the October 2004 Human Rights Watch report, detailed human rights violations, targeting of suspected Maoists by the authorities, extra-judicial killings and “disappearances”, intimidation and extortion of suspected Maoist rebels and civilians by Nepalese security forces and of “suspected Maoist sympathisers”.
While the Tribunal dealt with that part of the applicant’s claim relating to his former membership of the UPF as such (and the fact that he was not in fact involved in the people’s war) I am not satisfied that its findings addressed the claim of the applicant to fear persecution by the authorities as a suspected Maoist or perceived supporter. Whether or not it was open to the Tribunal to find that low level members, suspected members and sympathisers did not have a well-founded fear of persecution or that the applicant would not be suspected of being a Maoist or Maoist supporter by the authorities (as the respondent contends) it did not address these issues or make such findings.
In failing to consider whether the applicant had a well-founded fear of persecution as a suspected member or supporter of the UPF the Tribunal fell into error. It asked itself the wrong question (see Craig v South Australia (1995) 184 CLR 163 at 179) in such a way that affected the exercise of its powers (Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [84]) and fell into jurisdictional error (Kianfar v MIMIA [2001] FCA 1754.
The orders sought by the applicant should be made.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 22 July 2005