SZHWI v Minister for Immigration

[2006] FMCA 1924

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHWI v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1924

MIGRATION – Protection visa – whether jurisdictional error – whether breach of s.424A and 441A of Migration Act – whether Tribunal correctly interpreted s.36(3) of the Migration Act – meaning of legally enforceable right – whether required to identify relevant law in ‘other’ country.

Migration Act 1958, ss.36(3), 424A, 441A

SZFKD & Anor v Minister for Immigration & Anor [2006] FMCA 49
WAGH v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 269
Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154
Minister for Immigration & Multicultural Affairs v Sarrazola [2001] FCA 263
NABE (No 2) v Minister for Immigration and Multicultural Affairs (2004) 219 ALR 27

Applicant: SZHWI

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3715 of 2005

Judgment of: McInnis FM

Hearing date: 4 December 2006

Delivered at: Melbourne (by video link to Sydney)

Delivered on: 21 December 2006

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Mr L Clegg

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3715 of 2005

SZHWI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant relies upon an Amended Application filed on 7 August 2006 seeking judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 9 November 2005.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant to the Applicant a protection visa. 

2. The Applicant is a citizen of Nepal who arrived in Australia on 6 June 2005.  On 30 June 2005, an application for a protection visa from the Applicant was received by the First Respondent's Department. 

   
   

   A delegate of the First Respondent refused the application for a protection visa on 1 September 2005.  An application was then made to the Tribunal for review of the delegate's decision.

3. The Tribunal conducted a hearing on 8 November 2005 attended by the Applicant who gave oral evidence. 

The Applicant's Claim

1. In this application for a protection visa, the Applicant sought protection in Australia so that he did not have to return to Nepal.  He feared harm from Maoist rebels.  In his application, when referring to the reason why he had left Nepal, he stated in part the following:

   “I did leave the country to not to be persecuted from maoist rebels.  I have lived few years in Thailand working for Embassy as a social worker and when ever I go back to my home town the maoist used to ask me donation and I used to give them some money.

   Last time when I went to Nepal they asked me 300,000 rupees and I told them I can't help them then they came to my home and kidnap my son for week and send me message that if I don't give them that much money they will kill my son and I was so scare of loosing my son and told them OK I will give you money but give them one month time so after that they send my son back home and told me not to tell anyone about this and give them that money with in time.

   But there was not way I can give them that much money to them so I told that to Police and took my family to Kathmandu and I went to Thailand again. 

   After a week I come to Thailand I made a call to my wife she told me that they had found out about that I have told the police and they are looking for you and they even told that they know where I work in Bangkok and after knowing that from my wife I started to think about escape from Thailand then get visa for Australia and come here ... (sic)”

   (Court Book p.20)

2. In his application for a protection visa, the Applicant then refers to what he would fear would happen to him if he returned to the country in the following terms:

   “I am fear of losing my life if I go back to Nepal.  I have promised them to give them 300,000 rupees.  When they send my son back home  which I did not give them, and I am away from them with my family and when I call my wife from Thailand she told me that they want that much money or my life.

   The money I can't arrange and I don't want to be persecuted by Maoists this is why I am so afraid to go back Nepal (sic)”.

   (Court Book p.21)

3. The claims and evidence referred to by the Tribunal in its decision refer to the fear of harm though suggests the following:

   “The applicant claims he fears harm from Maoist rebels who wish to extort money from him for the reason of his perceived wealth.”

   (Court Book p.81)

4. After referring to the oral evidence of the Applicant which included a reference to working in the Nepalese Embassy in Bangkok from 2001 until 2005 as a social worker and that the Applicant would return annually to Nepal for a few days, the Tribunal then states relevantly the following:

   “The Tribunal asked him what he feared were he to return to Nepal.  He stated that his life is ‘under threat’.  He said the Maoists kidnapped his children (now aged 6 and 4) three years ago and kept them for a week demanding money.  He said that he agreed to pay them in a month's time and they released the children but in fact he did not have the money and has lived in fear ever since that they would again harm him or the children.  He was asked if he feared anything else and he replied only the Maoists demanding money from him.

   The Tribunal discussed with the applicant the need for the reason for the harm feared to be the essential and significant reason and that extortion is not a Convention reason.  The applicant said that when he was a student he had spoken out against the Maoists.  The Tribunal said that it found it hard to believe that the Maoists at present would be aware of this and he agreed.

   The Tribunal then discussed the independent evidence cited below on the right of Nepalese to live in India.  He replied that he would find it hard to live in India because there are many Nepalese Maoists there.  The Tribunal stated that the independent evidence indicates that Nepalese Maoists are forcibly returned to Nepal by the Indian authorities.

   The applicant concluded his evidence by stating that his problem is with the Maoists and ‘not with anything else’”.

   (Court Book pp.81-82)

5. It is significant to note from the extract of the Tribunal's decision that the Applicant joins issue with the sentence set out above where the Tribunal states:

   “The Tribunal said that it found it hard to believe that the Maoists at present would be aware of this and he agreed.”

   (Emphasis added)

6. The Applicant challenges the finding that he agreed with the comment of the Tribunal. 

The Tribunal Decision

1. Apart from considering the Applicant's claims both in the application for a protection visa and in the oral evidence, the Tribunal also relied upon independent country information in reaching its decision that Australia did not have protection obligations to the Applicant.

2. Reference was made to recent political developments in Nepal and the Tribunal in its findings then stated:

   “The Tribunal accepts the independent evidence cited above that the political situation in Nepal is currently marked by violence and instability and that the Maoists and the military have committed human rights abuses and have targetted those whom they consider to be their enemies.”

3. The Tribunal referred to independent country information concerning the ability of citizens in Nepal to live in India and obtain effective protection in India.  Specifically, the Tribunal states the following:

   “Information from the US Library of Congress, Country Studies, states that Nepal and India have agreements which enables citizens of Nepal to live in India (The Library of Congress Country Studies, Nepal: Relations with India, at accessed 27 March 2002; see also full text of the treaty at Peace_and_Friendship1950.htm, accessed 27 March 2002).

   A 2002 fact-finding mission to Nepal by the government of Belgium indicates that these arrangements continue (Kingdom of Belgium, Ministry of Interior Affairs, Office of the Commissioner General for Refugees and Stateless Persons (CEDOCA) documentation and research department, Mission to Nepal, VII.  India:  a safe third country, 21 January - 9 February 2002, published March 2002, publicly available 26 June 2002).

   However, the Indian government has indicated that it will not tolerate Nepalese Maoists and has offered to assist the government of Nepal with the Maoist insurgency.  The authorities in India are now sending Nepalese Maoists back to Nepal (see:  Bertil Lintner, 2002, 'Nepal's Maoists prepare for final offensive', accessed on 30 September 2002 from the web site of Asia Pacific Media Services Limited.  This article first appeared in Jane's Intelligence Review, October 2002; 'India deports 4 Nepalese Nationals', 2002, BBC News, 15 July; 'India deports Nepalese Maoists', 2002, BBC News, 12 July).

   According to the sources consulted by the Tribunal, a Nepalese citizen can fly directly to India from Australia provided they are in possession of a valid Nepalese passport ('Immigration Regulations: Frequently asked questions' Undated, Airports in India website, sourced from the Bureau of Immigration, Government of India - Accessed 10 March 2005); and legally reside in India under Article 7 of the India-Nepal Treaty of Peace and Friendship, 1950, which grants reciprocal rights to the ‘to the nationals of one country in the territories o[f] the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature’ (Government of India and Government of Nepal 1950, 'Treaty of Peace and Friendship Between the Government of India and the Government of Nepal', 31 July, Ministry of External Affairs web site ( - Accessed 4 March 2004).

   On 28 September 2005 the Department of Foreign Affairs & Trade provided the following responses (ref. NPL17528) to the following questions submitted by the Tribunal:

   1.Is there any information to substantiate the claim that in order to enter and reside in India a Nepalese citizen would first have to return to Nepal?  In what circumstances might this be the case?

   Other than in the case of deportation, the post is unaware of circumstances which would make it necessary for a Nepalese citizen to return to Nepal before entering and residing in India.

   2.Information before the Tribunal appears to indicate that a Nepalese citizen can fly directly to India from Australia, and reside there, provided they are in possession of a valid Nepalese passport.  Is this correct?  Are there any other requirements?

   The post is unaware of any other requirements.  Article 7 of the Nepal-India Treaty of 1950 gives Nepalese citizens the same privileges in relation to residence, property ownership, participation in trade and commerce and movement in India as those enjoyed by Indian citizens.

   3.Articles in Nepalese news sources report that Nepalese ‘leaving their villages need letters from the authorities [in Nepal] to prove to Nepali and Indian police that they are not Maoists’.  Can the Post comment on this claim?  If it is true, has the requirement affected the ability of Nepalese citizens to enter and reside in India?

   The post is unaware of such a requirement nor of instances in which Nepalese citizens have been prevented from entering India due to such a requirement.”

4. In its findings, the Tribunal specifically states:

   “For the sake of completeness, the Tribunal further finds that the applicant has a right to enter and reside in India as have large numbers of Nepalese currently living in India.  The Tribunal does not accept the Applicant's submission, and has no evidence to support such a submission, that there are large numbers of Nepalese Maoists in India.  Indeed, the Tribunal notes that the independent evidence indicates that Nepalese Maoists, if discovered by the Indian authorities, are not permitted to remain in India and are forcibly returned to Nepal.  The applicant has a record of employment that indicates he could indeed find employment in India, as have many thousands of Nepalese.  The Tribunal finds that the applicant does not have a well-founded fear of being persecuted for a Convention reason in India, or of being returned from that country to Nepal.  Accordingly, Australia does not owe protection obligations to the Applicant: s.36 of the Act.”

The Amended Application

1. The Applicant, who is self-represented though assisted by an interpreter, relied upon an Amended Application which I am satisfied discloses four discernible grounds of review.  Those grounds were identified correctly in the First Respondent's submissions as follows:

   1.The Tribunal failed to carry out its statutory duty.

   2.The Tribunal failed to consider whether there was effective protection for the Applicant.

   3.The Tribunal failed to consider whether the Applicant's fear was due to his membership of a particular social group namely, ‘Nepalese people of perceived wealth.’

   4.The Tribunal failed to consider all aspects of the Applicant's claim, in particular his political opposition to Maoists.

The Tribunal Failed to Carry Out Its Statutory Duty

1. The First Respondent submits and I accept that the particulars subjoined to this ground merely recite provisions of the Migration Act 1958 (the Migration Act). To the extent, however, that there is a claimed breach of s.424A of the Migration Act, it is submitted by the First Respondent that that claim is without merit. In the present case, it was submitted, the Tribunal had no obligation under s.424A(1) and (2) in circumstances where it relied upon independent country information in order to affirm the decision under review (s.424A(3)(a) is relied upon by the First Respondent). It was argued the information was information not about the Applicant but rather about a class of persons.

2. Any suggested breach of s.441A was likewise, according to the First Respondent's submissions, without merit and not directed to the facts of the case.

Reasoning

1. In my view, the submissions in relation to this matter by the First Respondent are correct. It is clear the use of independent country information was undertaken in a manner which would attract the operation of s.424A(3)(a) of the Migration Act and I am otherwise satisfied there has been no other breach of any relevant provision including s.441A of the Migration Act. In fairness I should add that the Applicant himself did not pursue this ground in any detail, which is perhaps not surprising given that he is self‑represented.

2. Nevertheless, I am satisfied that this ground should fail.

The Tribunal Failed to Consider Whether There Was Effective Protection for the Applicant

1. In his Amended Application, the Applicant has specifically referred to protection "from the fear that he felt from Maoists".

2. The First Respondent submitted that the Tribunal was not required to consider whether there was effective protection for the Applicant from the Maoists once it had concluded that there was no Convention nexus with the Applicant's claims. In any event, it was submitted, the Tribunal did consider whether the Applicant had a "right to enter and reside" in a third country, namely, India, and concluded the Applicant did have that right. This was a finding, it was submitted, under s.36(3) of the Migration Act and accordingly constituted an alternative basis for the Tribunal's conclusion that Australia did not owe protection obligations to the Applicant.

Reasoning

1. In my view, the First Respondent's submissions in relation to this ground are correct. Once the Tribunal had rejected the Applicant's claim and was unable to find any Convention reason for the harm feared by the Applicant, then there was no requirement to further consider the issue of protection. In the alternative I accept that in any event in this instance, the Tribunal has proceeded to make a specific finding which it refers to making "for the sake of completeness", which I accept is a finding pursuant to s.36(3) of the Migration Act and in the circumstances constitutes an alternative basis for the Tribunal's decision that Australia did not owe protection obligations to the Applicant.

2. It is noted that the Applicant, in his submissions entitled "Response to First Respondent's Submission," seeks to argue that s.36(3) does not apply as he did not have a legally enforceable right to enter and reside in India.

3. Both parties then addressed in further detail the findings pursuant to s.36(3) of the Migration Act. It is useful to set out that provision as follows:

   “36(3)  Australia is taken not to have protection obligations to a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.”

4. It is noted that the Applicant sought to rely upon a decision of the Federal Magistrates Court in SZFKD & Anor v Minister for Immigration & Anor [2006] FMCA 49 (SZFKD). It is relevant to set out passages from that decision of the court as follows:

   “42.  Counsel for the Minister sought to find an implication that the Tribunal correctly informed itself as to the law, by pointing to a concluding finding that “the applicant has an option to enter and reside in India”.  However, in the context – which was a discussion of whether the applicant might be targeted by Maoists if he resided in India, I do not consider that the word “option” was used as a synonym for “legally enforceable right”. 

   43.    The second reason for finding error by the Tribunal is the nature of the evidence to which the Tribunal referred under the heading “Refuge in India”, and which apparently provided the evidentiary basis for its finding.  The material to which it referred suggested a de‑facto “ability” of some Nepali nationals to enter India and obtain refuge there.  However, the legal framework under which such entry was achieved was not identified nor discussed.  In my opinion, the evidence cited by the Tribunal clearly fell short of establishing a legally enforceable right to enter universally enjoyed by all Nepali nationals in the situation of the applicant (and compare, similarly, the more extensive country information found by a different Tribunal which I discussed recently in SZEAS v Minister for Immigration [2005] FMCA 1776 at [35]‑[40]). 

   44.    Counsel for the Minister argued that such a right was found in Art.7 of a 1950 Treaty of “Peace and Friendship” between the governments of India and Nepal.  However, this records only an inter‑governmental agreement to accord equal “privileges” to nationals when they are “in the territories of the other” (my emphasis).  I cannot read into it an obligation on each government to allow free entry into India by all nationals of Nepal, and I think it would be exceptional to find such an obligation in a treaty of “peace and friendship”.  Moreover, absent some identified provision in Indian domestic law giving enforceable rights of entry to all Nepali nationals or evidence that the Treaty had legal effect under Indian domestic law, it would not have been open to the Tribunal to find such a right merely from a bilateral treaty obligation between governments. 

   45.    In my opinion, on the material to which the Tribunal referred, it would not have been open to it to find that the applicant had a “right to enter and reside in” India in the sense of an “existing legally enforceable right”.  This reinforces my opinion that the Tribunal failed to investigate and consider the making of such a finding.  Its purported application of s.36(3) was therefore vitiated by jurisdictional error. 

   46.    I also have doubt whether the Tribunal properly identified and addressed the second issue arising under s.36(3): whether the applicant had “not taken all possible steps to avail himself” of a legally enforceable right of entry.  The Tribunal certainly did not address this expressly, and I am unpersuaded that it did so by implication.  However, I do not need to decide this point.”

1. The First Respondent submitted that the outcome in the present case should be different to the outcome in SZFKD and relied upon three reasons as follows:

   “(1)This case is distinguishable on its facts. In the present case, there was significantly more independent country information before the Tribunal to support the s.36(3) finding, whereas in SZFKD there was only reference to the treaty of friendship between India and Nepal;

   (2)The remark made by the Federal Magistrate in SZFKD that the Tribunal would need to identify a provision in Indian domestic law in order to arrive at a finding for the purposes of s.36(3) is obiter and not part of the ratio of SZFKD;

   (3).Further and in the alternative, the Minister has been unable to identify a reference to such an onerous requirement in any Federal Court case concerning s.36(3). To the extent that the Court takes the comments of the Federal Magistrate in SZFKD to be a statement on the state of the law concerning s.36(3), it is plainly wrong. The notion that the Tribunal would need to identify a provision in Indian domestic law to support a positive s.36(3) finding is evidently at odds with Full Federal Court authority concerning the meaning of the words in s.36(3).”

Reasoning

1. In my view, the further consideration of the issue which arose concerning the s.36(3) finding leads me to conclude that the First Respondent's submissions are correct. In the present case I accept that there was further and, indeed, very recent independent country information available to the Tribunal including, relevantly, a Department of Foreign Affairs and Trade response dated 28 September 2005 (ref. NPL17528) which in this instance constituted significantly more independent country information than the information before the court in SZFKD.

2. When considering the application of s.36(3) of the Migration Act it is not necessary as a matter of law for the Tribunal to identify a provision in Indian domestic law to arrive at an appropriate finding for the purpose of s.36(3). Accordingly I am unable to follow the reasoning, albeit perhaps obiter, of the Court in SZFKD in relation to the requirement of the Tribunal to identify a provision in Indian domestic law to arrive at a finding for the purpose of s.36(3).

3. I am strengthened in my findings by reference to the decision of the Full Court in WAGH v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 269 referred to by the First Respondent, and in particular the decision of Hill J at [54] where His Honour stated:

   “It was held by a full court of this court in V872/00A v Minister for Immigration and Multicultural Affairs (2002) 122FCR 57 that ‘right’ as used in the subsection did not mean legally enforceable right of entry and re-entry to a safe third country.  The ratio of that decision in the narrowest sense is that s 36(3) will operate in a case where not only is there a legal right of entry but also where, absent a legally enforceable right of entry the person is likely to be allowed entry to the third country and is likely, as a matter of practical reality to have effective protection there and not be subject to refoulment contrary to Art 33 of the Committee: see per Black CJ at [5] and per Tamberlin J at 983], where his Honour said that the question is whether there was ‘any real risk that the applicant would not be able to secure access to that country so as to attract its protection.”

4. A legally enforceable right, if required, does not in my view require a reference to specific legislation in the relevant country. I have noted the submissions of the First Respondent where it is suggested that there is some divergence of view in the Federal Court concerning the meaning of the word "right" in s.36(3). Reference was made to Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154 (Applicant C) where the court held that the word “right” means a "legally enforceable right".

5. It is noted that Stone J in that case (with whom Gray and Lee JJ relevantly agreed) rejected the proposition that "right" meant the ability (or practical capacity) or capability legally to enter and reside in the relevant country (see [42] and [56]).  The divergence would appear to be between Stone J in Applicant C and the views of Allsop J in that case at first instance.  It is not necessary for me to resolve any perceived difference as for present purposes I am prepared to accept that "right" does mean a "legally enforceable right" but not one dependant upon identifying legislation in the particular country concerned. 

6. It will clearly vary from case to case, and I note that Stone J in Applicant C recognised, as submitted by the First Respondent, that a legally enforceable right may not require a visa and a country's entry requirements may be met by proof of identity and citizenship of a nominated country being provided at the border, for example by a passport.  So much is clear from paragraph 60 of Her Honour's decision as follows:

   “[60] It should also be recognised that a right of entry such as I have postulated may arise other than by grant of a visa. A country's entry requirements may be met by proof of identity and citizenship of a nominated country being provided at the border, for example by production of a valid passport, without the necessity for a visa. This would explain the use in s 36(3) of the phrase, "however that right arose or is expressed".

7. In my view that decision of Her Honour is compelling, particularly as in part it seeks to explain the use of the phrase "however that right arose" in s.36(3). In my view this ground, incorporating as it does by both parties the reference to the s.36(3) finding, fails.

The Tribunal Failed to Consider Whether the Applicant's Fear Was Due to His Membership of a Particular Social Group; Namely, "Nepalese People of Perceived Wealth"

1. I accept, as submitted by the First Respondent, that the identification of an existence of a particular social group depends upon the circumstance in every case (see Minister for Immigration & Multicultural Affairs v Sarrazola [2001] FCA 263).

2. The First Respondent submitted and I accept, however, that in the present case the Tribunal made a finding of fact that this was a simple matter of extortion which would not therefore involve a protection obligation.  I further accept that applying the authority of NABE (No 2) v Minister for Immigration and Multicultural Affairs (2004) 219 ALR 27 that the Tribunal is not obliged to consider unarticulated claims or claims which do not clearly arise from the material before it.

3. I accept the submission of the First Respondent that this is not a case where the Applicant claimed to be part of a social group of Nepalese persons of perceived wealth targeted by Maoists.

4. A proper reading of the claim made by the Applicant referred to earlier in this judgment reveals that essentially the claim was based upon his own personal or perceived wealth and not the membership of a social group.  The Tribunal, I accept, had before it country information revealing that extortion occurred by the Maoists but was indiscriminate and not directed at any particular social group.

5. Hence I conclude that this ground should fail.

The Tribunal Failed to Consider All Aspects of the Applicant's Claim, in Particular His "Political Opposition to Maoists"

1. The Applicant claimed that this was a significant error and in written submissions argued that he put very clearly to the Tribunal that he had been involved in politics as a student.  He argued that rejecting the Maoists' demand occurred due to his different political opinion as well as either inability or unwillingness to pay.

2. It is relevant to note that in his written submissions the Applicant then states the following:

   “2.    Maoists extortion is driven by political objective.  Maoist is a political party.  It is not a gang of a few criminals nor it is limited to a specific location of the country.  Maoists' objective is to achieve their political goal.  To finance their activities they use donation & extortion.  They go to their supports for donation & get donation.  That is not called extortion.  That is called donation.  When they go to people who do not believe on their ideology or cause of their fight, they deny donation.  Maoists forcefully get money from them.  That's why it is extortion.  So Maoists extortion arise because of different political opinion than Maoists or because the people does not think their activities right.  So, it obviously comes under imputed political opinion (sic).”

3. In the written submissions the Applicant further goes on to state:

   “3.    Maoists have targeted people (Those whom Maoists believe financially able person) who does not believe in their political ideology or those who oppose their act of forceful collection of money in general.  So all the people who does not provide financial assistance with personal will & have to provide forceful donation forms a social group.  I am member of the social group (sic).”

4. Essentially the Applicant sought to argue that by refusing the extortion demands of the Maoists, the Applicant in part could be regarded as having a political opinion different from the Maoists and would thereby have an imputed political opinion of a kind which would make him part of a social group; that is, those not sharing the political ideology of the Maoist extortionists. 

5. During the course of the hearing the Applicant sought to rely upon material which purported to be a transcript from the Tribunal hearing.  The material was attached to the Applicant's "Response to First Respondent's Submission" and purported to be a translation by an interpretation and translation service of an extract of the transcript.  It was not an official extract of the transcript but simply referred to the alleged comment by the member, "but I find it very unlikely that after all the years if anyone would even remember that", which was a reference to the Applicant's activities as a student in 1987.  The document simply provides what is described as "Comments" with the words:

   “Applicant did not say anything at this point.  Immediately after the above statement, Member put another question as follows:

   Member:   Do you want to say anything about your right to live in India?”

6. In my view, whether the Applicant agreed or did not agree with the Tribunal's comment does not detract from the force of the Applicant's submission in relation to the question of whether or not the Tribunal has properly considered the claim and indeed properly had regard to what might be described as the Applicant's imputed political opinion arising from a refusal to meet the demands of the Maoist extortionists.  Hence it is my view that the court should not permit the Applicant to rely upon the purported unofficial transcript.

7. I have considered whether the interests of the Applicant would be advanced by arranging for a complete transcript and in my view it is not appropriate for the court to direct the production of a complete transcript when both parties had the opportunity to do so to assist the court in determining the application.  In my view I am able to deal with this part of the claim without obtaining a transcript and am prepared to accept for the purpose of argument that the Applicant did not agree with the conclusion of the Tribunal despite reference to agreement by the Tribunal in its decision.

8. The real issue is whether the Tribunal failed to consider the claim based upon imputed political opinion, as set out above.

9. The First Respondent acknowledged that the Tribunal referred to the activities of the Applicant as a student and appeared to acknowledge that that political opinion claim was "momentarily asserted".  As I understand the submission for the First Respondent, some reliance was placed upon the Tribunal's notation that the Applicant agreed with the Tribunal when it made reference to persons not being aware of the Applicant's earlier outspokenness.

10. The First Respondent submitted that there was no error made by the Tribunal.

11. In my view this ground is far more problematic for the First Respondent in the sense that whilst the Tribunal may have regard to independent country information concerning the indiscriminate extortion of Maoists, it is clear that the Applicant was entitled to raise, as he apparently did raise, either directly or by inference, that his refusal to pay extortion demands may have resulted in an imputed political opinion. 

12. I accept, as submitted by the First Respondent, however, that the 1987 political activities of the Applicant as a student were considered by the Tribunal and in my view it did not matter whether the Applicant agreed or did not agree with the Tribunal's conclusion that those events occurred some time ago and would not be remembered.  The conclusion itself still stands whether or not it is the subject of an agreement, which for the present purposes I am prepared to accept was not in fact agreed to by the Applicant. 

13. However, that still leaves remaining the question of whether the Applicant, having refused the extortion demands, by virtue of refusing those demands may be regarded as having an imputed political opinion or belonging to a group who, for ideological reasons, albeit only in part, does not comply with the extortion demands.

14. Having regard to the manner in which the claim was made, namely, that the Applicant was targeted for his personal wealth, and the other material before the Tribunal including the independent country information, it is my concluded view that the Tribunal, whilst not directly addressing the imputed political opinion based on the matters raised above, has reached a decision on the facts reasonably open to it, free from any error. 

15. Once it had decided that this was an extortion attempt by a political group which was part of an indiscriminate extortion campaign based on the personal wealth of the Applicant, it did not in my view need to consider in further detail any social group or indeed the imputed political opinion of the Applicant in refusing extortion demands which may of itself place him in a particular social group.  Accordingly I do not detect any error which would permit me to allow this ground, and therefore this ground also should fail.

Conclusion

1. For the reasons given, it follows that the application should be dismissed with costs.

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

Associate: 

Date:  21 December 2006