SZJRI v Minister for Immigration - [2007] FMCA 2083

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJRI v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2083

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to ask itself the correct questions – whether Tribunal took an irrelevant consideration into account – whether Tribunal failed to consider effectiveness of state protection – whether independent basis for decision not affected by error.

Migration Act 1958, ss.36, 91R, 424A

Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1
Attorney-General (NSW) v Quin (1989) 170 CLR 1
Australian Iron and Steel Proprietary Limited v Banovic and Others (1989) 168 CLR 165
Buultjens v Minister for Immigration & Multicultural Affairs [2001] FCA 1058
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293
Chokov v Minister for Immigration & Multicultural Affairs [1999] FCA 823
Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 61 ALR 471
Gersten v Minister for Immigration & Multicultural Affairs [2000] FCA 855
Kanagasabai v Minister for Immigration & Multicultural Affairs [1999] FCA 205
Malinovv Minister for Immigration & Multicultural Affairs [2002] FCA 596
March v E & MH Stramare Pty Limited and Another (1991) 171 CLR 506
Marshall v Watson (1972) 124 CLR 640
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairsv Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 95 FCR 517
Minister for Immigration and Multicultural Affairsv Singh (2002) 209 CLR 533
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52
Okere v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 112
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28
Peiris v Minister for Immigration & Multicultural Affairs (1999) 58 ALD 413
Perampalam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 274
R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629
Ram v Minister for Immigration and Ethnic Affairs and Another (1995) 57 FCR 565
S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112
Sarrazolav Minister for Immigration& Multicultural Affairs [1999] FCA 101
Senthilnathan Tharmalingam v Minister for Immigration & Multicultural Affairs [1998] FCA 537
SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs and Another (2006) 231 ALR 592
SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609
The Amalgamated Society of Engineers v The Adelaide Steamship Company Limited (1920) 28 CLR 129
Thompson v Goold & Co [1910] AC 409

Applicant:

SZJRI

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3319 of 2006

Judgment of:

Barnes FM

Hearing date:

16 October 2007

Delivered at:

Sydney

Delivered on:

14 December 2007

REPRESENTATION

Counsel for the Applicant:

Mr L. Karp

Solicitors for the Applicant:

Christopher Levingston & Associates

Counsel for the Respondents:

Mr J. Mitchell

Solicitors for the Respondents:

Blake Dawson

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3319 of 2006

SZJRI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a review of a decision of the Refugee Review Tribunal handed down on 12 October 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Nepal, arrived in Australia in January 2006 and applied for a protection visa. In a statutory declaration sworn on 20 January 2006 made in connection with his protection visa application he claimed that he had joined the Nepalese Police Force in 1991 and had advanced to the rank of sub-inspector. In 1998 he had been posted to a named place [“S”] in Nepal for three months to help the local police unit during the time of an election. He claimed that during that posting he had led a team of 17 personnel against Maoist guerrillas who were trying to undermine the election. There were a number of armed confrontations with the Maoists. He stated that in the most serious of those incidents Maoists had initiated firing that was returned by the police and that four police personnel and several Maoists had been injured. Some Maoists were believed to have died, but as the Maoists carried their injured and dead away, no bodies were found. Four Maoists were caught by the police. The applicant claimed that the Maoists made several threats to him seeking the release of the captives. However before leaving S for Kathmandu he had handed the captives over to the District Police Office for further action. Some of the captives were still in gaol.
The applicant claimed that after he returned to his usual place of assignment, he had received several death threats over the phone between 1998 and 2000. These threats were from the Maoists of S “due to the incidents and the injury/deaths to their comrades”. The applicant claimed that after the calls started to affect him mentally, he was transferred from the Armed Police Office to the Traffic Police Office but that he nonetheless continued to receive threats. In 2000 he was sent to East Timor with the international police force for a year. On his return he was posted to another part of Nepal (a long way from S). He did not receive any threats there. On completion of that posting he claimed he was transferred to Kathmandu and then to another Maoist-affected area until September 2005. He did not receive threats during this time, although he claimed that police personnel were killed by Maoists in various incidents in that area.
The applicant claimed that in September 2005 he was ordered once again to S, where he feared the Maoists wanted to kill him “because of the incident of 1998 when I was leading the group of 17 Police Personnel and when Maoists were injured or possibly dead”. He requested a different posting because of that incident and the threats he had received before he went to East Timor “but due to the Nepalese Police my requests were not considered”.
He claimed that he sought another posting because the Maoists in S “will take revenge and they will harm me”. He claimed that while Maoist forces in the S area had not been very strong in 1998, since then they had become a very powerful guerrilla force with very sophisticated weaponry so that there was danger for him individually and “for the entire police force as well”, as the Maoists had the capacity to “blow up the whole district police office”. He claimed he would be targeted by the Maoists easily in S and that they could kill anyone outside the Kathmandu valley. He elaborated on claims about past attacks on army and police personnel by Maoists in Nepal, army and police deaths in such incidents, and in relation to the power of the Maoists in S.
He claimed that he would have been arrested by the police for disobeying orders to take up his posting in S if he had remained in Nepal. He feared that if he obeyed these orders they may well result in his death. He claimed police personnel had come to his home looking for him several times since he left Nepal and had told his wife he would be arrested.
The application was refused. The applicant sought review of the delegate’s decision by application lodged with the Tribunal on 3 May 2006. He was invited to a Tribunal hearing. His adviser provided supporting documentation the day before the hearing, including information in relation to a warrant letter said to have been fixed on the applicant’s house by the district police office, a memorandum and letter in relation to the applicant’s leave requests and employment status and dealing with the transfer of police sub-inspectors. The adviser also provided the Tribunal with a “reference” for the applicant dated 11 July 2006 from the pastor of Jesus Family Centre, a multi-cultural Christian fellowship in Sydney, which thanked the applicant for his visit to the centre and his presence in a church service.
On 18 July 2006 the applicant attended and gave evidence at a Tribunal hearing. On 21 July 2006 the Tribunal wrote to the applicant under s.424A of the Migration Act 1958 (Cth) inviting him to comment on information that would be the reason or part of the reason for deciding he was not entitled to a protection visa. The information related to aspects of the applicant’s evidence about his leave after September 2005, the issue of whether or not he could have resigned from the police force if he did not wish to take up his position at S and a conflict between his evidence that he would not be allowed to resign and a document he had provided which indicated that seven sub-inspectors were due to take up positions of police officers who had resigned. This information was said to be relevant because it raised the issue of the applicant’s credibility.
The applicant’s migration agent responded by letter dated 18 August 2006. A number of documents were also provided, including country information and what was said to be a corrected translation of the list of sub-inspectors in the police department. The adviser’s submission annexed a statutory declaration from the applicant addressing the issues raised in the s.424A letter. He claimed that Maoists arrested in S had been freed from prison and that he feared harm at their hands. He elaborated on a claim to have become a Christian. His adviser stated that the applicant claimed to have become a Christian in Australia and that he hoped to establish a church in Nepal and educate people in the Christian faith. Further information from the Church was to be provided. The submission also addressed issues in relation to relocation.
On receipt of this letter the Tribunal cancelled the scheduled handing down of its decision. The submission was referred to the member for consideration. On 11 September 2006 the applicant’s adviser provided further documents to the Tribunal as foreshadowed in the earlier submission, consisting of letters and references from persons associated with the Jesus Family Centre the applicant claimed to have been attending in Sydney.

Tribunal decision

In its decision, handed down on 12 October 2006, the Tribunal accepted that the applicant was a Nepalese citizen who was employed as a police officer in Nepal from 1991 until late 2005, that he was unwilling to take up his posting at S, that politics in Nepal had for some years been marked by violence and that the Maoists had continued to commit human rights abuses. The Tribunal also accepted that the applicant “as a police officer had dealings with Maoists which led to the imprisonment of some”.
The Tribunal summarised the applicant’s basic claims as a claim that he was “in fear of returning to Nepal because he would be targeted by the Maoists if he abides by his superiors’ order to work in [S], where he was stationed in 1998 and was instrumental in the arrest and imprisonment of four Maoists. The Applicant had previously served in [S] for approximately three months as the officer-in-charge. It is the Applicant’s claim that the Maoists have threatened him since 1998 and if he returns to [S] they will be in a position to seek revenge against him”.
However the Tribunal found that the evidence before it indicated that the applicant had not suffered any harm since 1998. It observed that he had stated that during his years as a police officer he had also continued to work on his farm in Nepal to which he had intended to return permanently once he retired in 2008 (if he had remained in Nepal). It noted that the applicant’s claim was that he received threats from the Maoists between 1998 and 2000, but that while he was stationed in Kathmandu “he was not in fear of harm from the Maoists because Kathmandu was not badly influenced by the Maoists and they could not harm him”. The Tribunal continued:
I do not accept that the Applicant’s fear of harm is Convention related. The Applicant in his evidence agreed that his fear was one of revenge from the Maoists because of his involvement with them as a police officer in 1998. Had the applicant taken up his posting at [S] he may have found himself in a dangerous situation. However the Applicant was a police officer, employed to protect the people of Nepal. In addition to not fearing harm for any Convention reason, the Applicant, had he taken up the position, would be the recipient of his own state’s protection should he become a target of any Maoist attacks.
Under the heading “membership of a particular social group” the Tribunal summarised the applicant’s claim as a claim to fear persecution “arising from his actions as a Nepalese police force officer who had arrested and detained some Maoist cadres”. It was acknowledged that this may give rise to a fear for reasons of, inter alia, membership of a particular social group such as “Nepalese police” or something approximate to that. The Tribunal also acknowledged that in appropriate circumstances such persons may invoke refugee protection obligations. However, it continued:
That said, none of the country information in the sources considered, nor the evidence and submissions provided by the applicant, has satisfied the Tribunal that a significant and essential reason he may be targeted for harm is for reason of his membership of a particular social group.
This does not mean that police officers in Nepal could not be considered to be a member of a class of persons whose members possess a ‘uniting’ feature or attribute, and the persons in that class are cognisable objectively as a particular social group … My finding is that I am not satisfied the [sic] there is a real chance that an essential and significant reason the present applicant may be targeted would be for membership of a group even approximating that posed above.
Under the heading “actual or imputed political opinion” the Tribunal referred to Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533 in which Gleeson CJ stated at [18] in relation to the issue of whether murder might, in some circumstances, be a political crime: “Even if a killing occurs in the course of a political struggle, it will not be regarded as an incident of the struggle if the sole or dominant motive is the satisfaction of a personal grudge against the victim……Revenge is not the antithesis of political struggle, it is one of the most common features” (also see Gaudron J at [44]).
While observing that Singh was not directly in point, the Tribunal accepted that in a case where “a significant and essential reason” for feared harm was based on at least one of the grounds in the Refugees Convention protection obligations may arise notwithstanding that another significant and essential reason for the harm may have been non-Convention related. However the Tribunal found in the case before it that, even if it accepted that the applicant may be targeted for harm in S by Maoists “for reasons of his having been responsible for the arrest (and possible mistreatment), of a number of their colleagues after the above-mentioned 1998 incident; based on the evidence provided, the Tribunal is satisfied the sole or dominant motive for harming the applicant in [S] would be for the satisfaction of a personal grudge against him. Accordingly, the Tribunal is not satisfied that a significant and essential reason for harming the applicant would be for one of the reasons provided in the Refugees Convention”.
The Tribunal then addressed the applicant’s claim that he feared arrest for failing to attend his posting in S. It found that none of the evidence or country evidence considered by it satisfied it that an essential and significant reason for the arrest (or any of the other harm), that the applicant claimed to fear, would be for one of the reasons in the Refugees Convention.
The Tribunal stated that it had significant concerns relating to the applicant’s credibility in relation to the claim based on conversion to Christianity. It observed that at the Tribunal hearing the applicant had not mentioned any fear related to his conversion to Christianity or that he had converted to Christianity and that before giving his evidence he did not take an oath on the Bible, but made an affirmation to tell the truth. The Tribunal stated that on 21 August 2006 it had received a letter from the applicant’s adviser stating that the applicant was a “fully committed Christian”. It referred to the letter dated 11 July 2006 from the Jesus Family Centre in Sydney addressed to the applicant in which the writer thanked him “for his visit to the Centre” and the fact that a senior pastor of the Centre stated in a letter of 22 August 2006 that the applicant had been attending the centre since July 2006 and that “soon thereafter” had decided to convert from Hinduism to Christianity. Reference was also made to letters from supporting witnesses who claimed that they had known the applicant respectively since June (year not mentioned) and since January 2006 through the Jesus Family Centre.
The Tribunal found that notwithstanding the “purportedly corroborating evidence” it was not satisfied on the evidence before it that the applicant was a sincere and genuine Christian, nor that he would be imputed with such belief should he return to Nepal. The Tribunal observed that it had put concerns to the applicant (including at the hearing) that may have led him to conclude that the Tribunal may not be satisfied that his actions as a police officer may invoke refugee protection obligations. It was satisfied that the applicant’s recent evidence about being a Christian was submitted for the sole purpose of enhancing his claim and to invoke refugee protection obligations in Australia. Hence it rejected his claim to be a Christian as false.
The Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason should he return to Nepal in the reasonably foreseeable future.

Correct questions issue

The applicant sought review by application filed in this Court on 14 November 2006. He now relies on an amended application filed on 19 September 2007. There are three grounds in the amended application. The first ground is as follows:
1. The second respondent (the Tribunal) committed jurisdictional error by failing to ask itself the correct questions, those being,
(a) Whether the underlying cause of any revenge sought by Maoists against the applicant was an opinion, held by the applicant or imputed to him by his Maoist foes, that he had an ideological opposition to them.
(b) Whether, in the light of all the facts and evidence that the Tribunal did accept or did not reject, the applicant had a well-founded fear of persecution for a Convention reason.
(c) Whether, applying common sense to the facts of the particular case, the applicant had a well-founded of persecution for a Convention reason.
As Mr Karp contended for the applicant, the Tribunal decision rested, in essence, on its finding that any persecution that the applicant feared was not “for reasons of” a Convention ground. The issue in this case was said to be one of causation. The applicant acknowledged that a finding as to causation was one of fact, but submitted that the way in which the Tribunal went about arriving at such a finding involved questions of law and that if the Tribunal erred in interpreting the concept “for reasons of” in the Refugees Convention that would amount to a failure by the Tribunal to exercise its jurisdiction according to law (see the Refugees Convention and sections 36 and 91R of the Migration Act).

It was submitted that in undertaking its task under the Act the Tribunal must engage in a real as opposed to a purported examination of the issue of causation, consistent with the remarks of Kirby J in his concurring judgment in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 315 [69] to the effect that:
In the end it is necessary for the decision-maker to return to the broad expression of the Convention, avoiding the siren song of those who would offer suggested verbal equivalents. The decision-maker must evaluate the postulated connection between the asserted fear of persecution and the ground suggested to give rise to that fear. The decision-maker must keep in mind the broad policy of the Convention … and the inescapable fact that he or she is obliged to perform a task of classification.
On this basis it was contended that the Tribunal must examine not just the immediate cause of harm which an applicant claimed to fear but also the underlying cause, given that, as Kirby J stated in Chen at [69], “Human conduct is rarely if ever, uni-dimensional”. (See R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629 at 653-654 in which Lord Hoffman was said to have made this point by reference to the motivations for various kinds of persecution of Jews in Nazi Germany.) Such an approach was also said to be consistent with the reasoning of the Full Court of the Federal Court in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 per Wilcox J at 39 and Lindgren J at 43.
It was submitted that in the Tribunal reasons for decision there was no analysis and no reason given for the Tribunal conclusions in relation to the reason the applicant was targeted and that the evaluation required by Kirby J (see Chen at [69]) was entirely absent. Rather it was said that, as far as could be discerned, the Tribunal reasoning in relation to the reason for which the applicant feared harm was simply that:
·the applicant led a contingent of police officers in an armed confrontation with Maoists;
·his force wounded (and may have killed) Maoists and captured others who were subsequently imprisoned; and
·the Maoists have a personal grudge against him.
Counsel for the applicant contended that the Tribunal should have analysed its findings on the basis that the reason for the applicant’s fear of persecution involved a number of “inextricably linked” notions to be considered in combination (the approach taken by Hely J in Sarrazola v Minister for Immigration (1999) FCA 101 at [44] – [45]).
In connection with this contention it was argued that the Tribunal had accepted or did not reject a number of factual claims made for or on behalf of the applicant, in particular that:
·the Maoists were involved in a political struggle against the Nepalese state (a matter which, it was said, seemed to have been assumed by the Tribunal);
·the police were agents of the state;
·the applicant as a police sub-inspector had led a contingent of police officers in an armed confrontation with Maoists;
·his force wounded (and may have killed) some Maoists and captured others;
·despite threats the applicant had handed the captured Maoists to the district police office; and
·the captured Maoists were subsequently imprisoned.
In particular, it was submitted that the evidence before the Tribunal included not only the description of the incident with the Maoists in 1998 but also his claim that after the four Maoists were caught by the police there were several threats to him from the Maoists to release the captives but that he did not respond to these threats but handed the captured Maoists over to the district police office for further action. The Tribunal was said to have accepted that there was a connection between the Maoists and what the applicant did as a police officer (which took the form of their seeking revenge against him). Hence it was said to be incumbent on the Tribunal to consider why or on what basis the Maoists wanted revenge and that it erred in failing to do so.
It was submitted that the Tribunal considered only the immediate cause for the harm feared by the applicant (a personal grudge) which it then concluded was the sole or dominant cause of harm feared by the applicant at the hands of the Maoists. It was said that the Tribunal failed to consider what may be the underlying cause, that is, whether the applicant’s participation in an arguably political act – fighting the Maoists – was the underlying cause of the “grudge”.
The applicant contended that had the Tribunal asked itself the correct questions in addressing causation it would have considered whether the applicant’s actions in opposing the Maoists and carrying out his duty as a policeman (an officer of the state) may have constituted a politically significant act either in his eyes and/or in the eyes of the Maoists. While it was acknowledged that such actions may be politically neutral and a mere following of orders, it was submitted that the Tribunal erred in failing to decide whether the applicant’s actions were or were not politically significant in this way.
Mr Karp suggested that Hely J’s analysis of the approach taken by the Tribunal in Sarrazolav Minister for Immigration (1999) FCA 101 at [44] – [45] was applicable in the present instance. In Sarrazola the Tribunal had reasoned that certain persons sought the applicant because of self-interest to recover money that was owing to them by her brother whom they had killed and not for reason of the applicant’s familial tie with her brother “even in part”. However, Hely J found that it was necessary to have regard to the combination of notions inherent in the motivation of the persecutors (and see Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 95 FCR 517 at [13] – [17]). His Honour was said in effect to have imposed on the Tribunal a duty to define both the most immediate cause of persecution and the underlying cause to find the real reason for the applicant being persecuted.
On this basis it was contended that the Tribunal had to look not simply at the immediate cause (in the sense of the Maoists having a personal grudge against the applicant) but had to also ask whether there was an underlying cause (such as a cause motivated by the applicant’s political opinion or perceived political opinion). A failure to proceed in this way was said to be a failure to ask a question essential to the lawful determination of the issues before the Tribunal or a failure to carry out the evaluation referred to by Kirby J in Chen.
In the alternative it was submitted for the applicant that the Tribunal’s reasoning could be seen as a failure to determine whether, in the light of all the facts and evidence it accepted or did not reject, the applicant had a well-founded fear of persecution for a Convention reason as was considered by Lindgren J in SenthilnathanTharmalingam v Minister for Immigration & Multicultural Affairs [1998] FCA 537. In that case it had been submitted for the applicant that it was incumbent upon the Tribunal to review his case in light of those claims which the Tribunal accepted. Lindgren J pointed out that the Tribunal had not accepted that the applicant in that case had “already been persecuted by virtue of his role as a bagman, or at all”. However his Honour continued:
But was it required to consider, in the light of the claims it did accept as well as of the “Relevant Country Information”, whether Mr Tharmalingam fears persecution in the future by reason of imputed political opinion, if he were to return to Sri Lanka and, if so, whether that fear is well founded? I think that it was.
Lindgren J set out other facts the Tribunal had accepted which it had not addressed and found that it was “incumbent on the RRT to review those claims which it did accept in the manner which I have indicated”. His Honour observed that if the Tribunal had addressed such matters it might have concluded that the applicant’s claimed fear of persecution in the future for reason of imputed political opinion arising out of this role as a bagman was well founded.
While the reasoning in Tharmalingam related to the Tribunal’s consideration of the prospective chance of persecution, it was submitted that this analysis (and that of Hely J in Sarrazola) applied equally to ascertainment of a Convention reason and was reflected in the observation of Kirby J in Chen that the decision-maker “must evaluate the postulated connection between the asserted fear of persecution and the ground suggested to give rise to that fear” (at 315 [69]). The applicant contended that the Tribunal had failed to evaluate the causal nexus between the harmed fear and the Convention reasons in the context of the facts it accepted, (or did not reject) in that it did not address the issue of actual or imputed political opinion in light of the factual claims made for the applicant about the situation in Nepal and the 1998 incident.
It was also contended for the applicant that the issue was susceptible to the analysis adopted by Branson J in Okere v Minister for Immigrationand Multicultural Affairs (1998) 87 FCR 112. In that case her Honour addressed the approach to be taken to the construction of Article 1A(2) of the Refugees Convention referring (at 117), to the suggestion of McHugh J in Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225 at 254 that, consistent with Article 31 of the Vienna Convention on the Law of Treaties 1969, a holistic approach was called for in interpreting a treaty in which “[p]rimacy is to be given to the written text of the Convention but the context, object and purpose of the treaty must also be considered.” Branson J expressed the view that giving primacy to the ordinary meaning of the text of Article 1A(2):
I do not consider that the protection of the Convention is intended to be denied to all persons who have a well-founded fear of persecution for reason of what they have done as individuals.
Her Honour continued at 117 – 118 that she could:
……find nothing in the ordinary meaning of Art 1A(2), considered in the light of the context, object and purpose of the Refugees Convention, which suggests against the question of whether an individual has a well-founded fear of persecution for reason of his or her race or religion being answered by “applying common sense to the facts of each case”: cf March v E & MH Stramare Pty Ltd and Another (1991) 171 CLR 506 per Mason CJ at 515. I appreciate that the March v Stramare test is a common law test of causation, but having regard to the principles of interpretation of treaties referred to above, it reflects, in my view, an appropriate approach to the construction of this aspect of Art 1A(2) of the Refugees Convention. It is, in my view, only to put the same test in different words to invite the identification of the true reason for the persecution which is feared: cf Australian Iron and Steel Proprietary Limited v Banovic and Others (1989) 168 CLR 165 per Deane and Gaudron JJ at 176 – 177 and Dawson J at 184.
Branson J went on to find (at 118) that the Tribunal had failed to “seek to apply common sense to the facts of the case” when it concluded that the applicant faced harm by reason of what he had done as an individual and not for reason of his religion. Such a conclusion was said to have been based on a “false dichotomy” between an applicant facing harm for reason of religion or facing harm for reason of what he had done as an individual contrary to what was required under Article 1A(2) of the Refugees Convention. Her Honour suggested that the Tribunal was required “to ask itself whether, applying common sense to the facts which it accepted, the applicant has a well-founded fear of persecution the true reason for which is religion”. On that basis Branson J also rejected (at 118) the contention that the Refugees Convention excluded from its protection persons who had a well-founded fear of persecution that was not motivated directly for a Convention reason but only “indirectly”.
It was submitted for the applicant that the test of causation adopted by Branson J in Okere was the same as that adopted by Hely J in Sarrazola at [44] – [45] and Lindgren J in Tharmalingam as discussed above, albeit couched in less specific terms and that it was axiomatic that the application of common sense to the facts of any particular case required a consideration of all the facts that the Tribunal accepted or did not reject. In particular it was said to be common sense that a person could act through multiple motivations and argued that in simply addressing the immediate motivation of the alleged persecutors (the Maoists), the Tribunal had not acted according to the common sense principles referred to in Okere, as it had failed to examine what the ultimate guiding motivation was in its reasons for decision.
It was pointed out that it was well established (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323) that if a Tribunal did not make a particular finding or mention a particular matter it may be inferred that it did not consider such finding to be relevant or important. On that basis it was said that if the Tribunal did not give reasons for a particular finding it could be inferred that it had no reason for that finding or that it had not thought of a reason to prefer one finding rather than another.
Counsel for the first respondent contended generally that the tests postulated for the applicant based on notions such as “underlying cause”, “common sense” and “failure to ask questions” were tests for which there was no authority. The question of causation was said to be a matter of fact for the Tribunal (see Peiris v Minister for Immigration & Multicultural Affairs (1999) 58 ALD 413 at [18] – [23] and Buultjens v Minister for Immigration & Multicultural Affairs [2001] FCA 1058 at [12] and [13]) so that it was for the Tribunal to determine whether some theoretical questions should have been asked.
In Peiris, while Hill J accepted (at [19]) that the Tribunal had not applied directly any common law test of causation such as had been referred to by Branson J in Okere, his Honour continued (at [20]): “For my part I have some concern in suggesting that a common law test of causation would be applied in every case in determining whether a well-founded fear of persecution is motivated by some Convention reason. It seems to me to introduce into the Article in the Convention a test which is not explicitly there”. His Honour described a submission for the applicant in that case that a common law test of causation (the so-called “but for” test) was to be applied, as coming “dangerously close to asking the court to reject a factual conclusion which was open to the Tribunal to the effect that those who were persecuting the applicant were wholly lacking in interest in the applicant’s political views. Given the finding of fact which the Tribunal had made, it is difficult to challenge the Tribunal’s decision in the way the applicant seeks to” (at [22]). Hill J was of the view that the finding in respect of causation was a finding of fact for the Tribunal and not for the court.
In Buultjens at [12] Spender J adopted the views of Hill J in Peiris at [22] – [23] in finding that whether persecution complained of was based on the actual or imputed political opinion of the applicant “was a factual issue for the Tribunal, not for the Court”. (Also see Malinovv Minister for Immigration & Multicultural Affairs [2002] FCA 596 per Heerey J at [10]).
On this basis it was submitted for the first respondent that the common law test of causation that Branson J postulated in Okere had been doubted by Hill J, that his conclusion that the question of causation was a question of fact had subsequently been applied by the Federal Court and thus that it should be accepted by this Court as the correct approach to the issue of causation.
More generally it was submitted for the first respondent that the question for the Court was whether the Tribunal had erred in law by making findings that were not open on the evidence or by misconstruing the Refugees Convention, although it was not open to the Court to review the fairness of the inferences drawn by the Tribunal in respect to causation, or to prefer its own view as to whether the applicant’s fears had a Convention basis (Attorney-General (NSW) v Quin (1989) 170 CLR 1 at 35 – 36 and SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs and Another (2006) 231 ALR 592 at [26]).
It was contended that the Tribunal had not erred by making findings that were not open on the evidence. The manner in which the applicant’s claims were put was said to be indicative of threats addressed to him personally and there was an absence of any evidence indicating political motivations, other than the fact that the putative persecutor was a Maoist and the applicant was a policeman.
Counsel for the first respondent submitted that it was not for the Court to now construct the applicant’s claims in a more articulate manner or to speculate upon the basis of a political opinion claim, as such constructive activity was beyond the scope of judicial review (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]. Also see S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 at [1] per Gleeson CJ).
In this instance it was said that the Tribunal had not misconstrued the Refugees Convention, that it had clearly considered whether the feared persecution was for reason of the applicant’s political opinion or membership of a particular social group, and that it had recognised that persecution may be motivated by Convention and non-Convention related reasons and that it had to consider whether the Convention reason was an essential and significant reason.
It was submitted that the Court should not too readily find error in such a finding of non-satisfaction (see NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354 at [27] and NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 at [27]). It was also argued that it could not be said that, based on the applicant’s claims as put by him, no reasonable Tribunal could fail to be satisfied that the harm feared by the applicant was for reason of his political opinion or membership of a particular social group (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [55] [138] and [147] and Singh per Gleeson CJ at [18] and Kirby J at [114]) as the applicant’s claims were not so compelling as to necessitate only one conclusion, that being that there was a well-founded fear of persecution for a Convention reason.
It was suggested for the first respondent that it was necessary to be cautious in adopting approaches taken to matters of fact in other cases and that in Sarrazola and Okere the motivation of the imputed persecutors was in evidence before the Tribunal in a way that was not the case in this instance.
It was submitted that, given the absence of any evidence in relation to such a matter, the Tribunal did not have to speculate as to whether (in addition to a personal desire for revenge) the Maoists’ actions were motivated by the applicant’s political opinion or his membership of a particular social group. In any event it was said that the Tribunal did in fact consider that issue in its reasons for decision but found that it was not satisfied that a significant and essential reason for harming the applicant would be for reason of his political opinion or his membership of a particular social group.
Counsel for the first respondent did submit that several principles in respect of causation in the context of the Refugees Convention were supported by authority:
·The motivations of a putative persecutor are a permissible basis for the Tribunal’s consideration of whether the feared persecution is Convention based (see Ram v Minister for Immigration and Ethnic Affairs and Another (1995) 57 FCR 565 at 568 and Okere at 117).
·If harmful acts are done purely on an individual basis, because of what the individual has done or possesses, the application of the Convention is not attracted (Ram at 567-569 and Singh (2002) at [18] and [118]).
·The motivations of a putative persecutor may in many cases be mixed. Axiomatically, people often act with a complex array of motivations (Singh at [122]).
·It does not necessarily follow that, because a persecutor is engaged in political struggle, the harm inflicted by that persecutor is for reason of the victim’s political opinion (Singh at [18], [114] and [120]).
·In order for the Convention to apply, a Convention basis must be the “essential or significant reason” for the fear (s.91R(1)(a) Migration Act 1958 and Singh at [44]).

In reply counsel for the applicant reiterated that his submission was not that a finding of causal nexus had to be inevitable, but rather that if an issue was raised it must be addressed and that the Tribunal must ask the right questions. It was also submitted that the line of authority which counsel for the respondent said stemmed from Peiris was inconsistent with authority of the Full Court of the Federal Court, in particular the decision in Minister for Immigration v Sarrozola (1999) 95 FCR 517 in which the Full Court referred with approval to what Branson J stated in Kangasabai v Minister for Immigration & Multicultural Affairs [1999] FCA 205 at [20] referring to the reasons given in Okere.

Reasoning

Before addressing the Tribunal decision in issue, it is relevant to note in relation to the first respondent’s general submission about principles in respect of causation in the context of the Refugees Convention that care must be taken in reliance on Singh in relation to the scope of Article 1A(2). That case was not concerned with whether a person met the definition of refugee in Article 1A(2), but rather with whether the Administrative Appeals Tribunal had erred in finding that a person was excluded from protection by virtue of Article 1F(b) of the Convention on the basis that there were serious reasons for considering that he had committed “a serious non-political crime”. The High Court was not addressing the notion “for reasons of” in the context of Art 1A(2).
Moreover, when Burchett J (with whom O’Loughlin and R D Nicholson JJ agreed) addressed the Convention definition in Ram, what was being considered was a claim based on membership of a particular social group. Burchett J stressed (at 568) the need to keep in mind the fact that there was a “unity of concept about the whole definition of refugee” in the Convention so far as it related to membership of a particular social group. It was in that context that his Honour stated:
Persecution involves the infliction of harm but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm.
Further, rather than stating a general proposition that harmful acts done purely on an individual basis were outside the Convention, what Burchett J stated (at 568) in this respect was as follows:
People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution. Consistently with the use of the word “persecuted”, the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is “membership of a particular social group”. If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possesses, the application of the Convention is not attracted, so far as it depends upon “membership of a particular social group”. The link between the key word “persecuted” and the phrase descriptive of the position of the refugee, “membership of a particular social group”, is provided by the words “for reasons of” – the membership of the social group must provide the reason. There is thus a common thread which links the expressions “persecuted, “for reasons of”, and “membership of a particular social group”. That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase “for reasons of”, and fastens upon the victim’s membership of a particular social group. He is persecuted because he belongs to that group.
As Branson J pointed out in Okere (after discussing the distinction between persecution for reasons of membership of a particular social group as discussed in Ram and Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225 and persecution for the other four Convention reasons in which the notion of membership of a group has “no part to play”), it does not “logically follow” that individuals are not persecuted for other Convention reasons (her Honour referred to race or religion) “if they are persecuted for reason of what they as individuals have done” (at 117). It was in that context that her Honour referred to the need to “give primacy to the ordinary meaning” of the text of Article 1A(2) and expressed the view that protection was not intended to be denied to all persons who had a well-founded fear of persecution “for reason of what they had done as individuals” and suggested the application of “common sense to the facts of each case” (at 117 – 118).
In any event, it is clear that the starting point in relation to the interpretation of Article 1A(2) of the Refugees Convention should be the text of the Convention interpreted in a holistic manner. As McHugh J, stated in Applicant A at 254:
[p]rimacy is to be given to the written text of the Convention but the context, object and purpose of the treaty must also be considered.
It is also clear that, as Dawson J pointed out in Applicant A (at 240), the words “for reasons of” require a “causal nexus” between the Convention reason in issue and the well founded fear of persecution. Gummow J (at 277) agreed with McHugh J that it was “important to appreciate the primacy to be given to the text” of the Convention, and, at 284, expressed the view that the phrase “for reasons of” served to identify “the motivation for the infliction of the persecution and the objectives sought to be obtained by it” (and see Kirby J at 292 – 296).
However, as McHugh J clarified in Applicant A at 256 the meaning of any element of the definition of refugee must be construed in the light of the definition taken “as a whole”, not by isolating elements of the definition, interpreting them and then asking whether the facts of the case are covered by the “sum of the individual interpretations”. Thus the interaction between concepts in the definition must be borne in mind.
Further, in considering the text of causation to be applied it is relevant to note that subsequent to the decisions in Okere, Peiris and Sarrazola the Full Court of the Federal Court (Hill, Matthews and Lindgren JJ) addressed this question in Gersten v Minister for Immigration & Multicultural Affairs [2000] FCA 855. In Gersten it was argued that the causation test in Article 1A(2) of the Refugees Convention had been incorrectly applied by the Tribunal because it applied a ‘but for’ test of causation or failed to recognise that “persecution may be activated by multiple reasons”.
The Full Court found that (at [38]) that the reasons of the Tribunal in that case did not suggest that it applied a ‘but for’ test or erred in the manner contended.
First, consistent with the approach of McHugh J in Applicant A, the Full Court stated at [23]:
There is, as the joint judgment in Chen and the judgment of Burchett J in this Court in Ram v Minister for Immigration and Ethnic Affairs and Another (1995) 57 FCR 565 at 568 make clear, some danger in considering each of the elements to be found in the definition of “refugee” in the Convention as separate and distinct from the other elements. The definition contains a “common thread” which links the elements together, those elements being persecution “for reasons of” at least one of the several grounds specified in the definition among which is to be found, as relevant to the present case, political opinion. Further, no doubt, the words “for reasons of” introduce an idea of causation. But care must, in considering the question of causation, be taken not to be distracted from what is actually expressed in the Convention definition, namely, as relevant to the present case, whether the person claiming to be a refugee has a well-founded fear of persecution for reason of political opinion.
In the course of its judgment the Full Court stated at [25] that a number of “important propositions” emerged from the joint judgment in Chen, in particular:
·The question whether persecution is undertaken for a Convention reason can not be entirely isolated from the question whether the conduct is persecution.
·If persons of a particular race, religion or, as in the present case, political opinion are treated differently, that may justify the conclusion that they are treated differently by reasons of their race, religion (or political opinion).
·Whether differential treatment constitutes persecution will at least usually depend on whether the treatment received is “appropriate and adapted to achieving some legitimate object of the country [concerned]” (see McHugh J in Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225 at 258)…
·Where enmity or malignity motivates the discriminatory conduct, that fact facilitates the conclusion that the discrimination is for a Convention reason. However absence of enmity or malignity does not mean that the conduct can not amount to persecution for a Convention reason. “It is enough that the reason for the persecution is found in one or more of the five attributes listed in the Convention” (one of which is political opinion): Chen at 33…
In Gersten the Full Court noted the absence of other direct comment on causation in the joint judgment in Chen and then outlined the approach of Kirby J as set out above.
As their Honours went on to state at [27] – [28], Kirby J in Chen also pointed to the need to consider the definition of a refugee as a whole. The Court observed that Kirby J had noted that causation was an issue which “bedevils the law in many of its aspects” (at [67]) and “depends upon the precise context in which the issue is presented” (at [68]) and that in the law of torts the “but for test” had to be “tempered by the infusion of policy considerations”, (at [68) citing March v E and MH Stramare Pty Limited and Another (1991) 171 CLR 506 at 515 – 7 as authority for this proposition).
The Full Court expressed agreement with the statement by Kirby J at [68] in Chen that “in the context of the expression ‘for reasons of’ in the Convention, it is neither practicable nor desirable to attempt to formulate ‘rules’ or ‘principles’ which can be substituted for the Convention language” and reiterated that, as his Honour said, it was necessary for the decision-maker to “evaluate the postulated connection between the asserted fear of persecution and the ground suggested to give rise to that fear”, bearing in mind the “broad policy of the Convention” (at [29] in Gersten).
The Full Court of the Federal Court also accepted in Gersten that, consistent with what Lord Hoffman had stated in Shah and as Kirby J pointed out in Chen, there may be different reasons for particular acts which constitute persecution and that the persecution that is feared may be inflicted for multiple reasons (which include a Convention reason) (at [30] – [32]). As the Court stated, it is necessary for the Tribunal to refer to the facts found by the Tribunal, identify the claimed past persecution said to provide the foundation for a well-founded fear of persecution and then determine “having regard to the objects which the Convention serves to promote, whether the identified persecution was for reason of the claimant’s political opinions” (at [33]).
Thus, if there is material before the Tribunal that is accepted by the Tribunal that is capable of supporting a finding that an applicant was selected as a target for threats or other harm by reason of his or her membership of a particular social group, actual or imputed political opinion, or other Convention reason, a finding that the motivation of those who threatened the applicant was satisfaction of a personal grudge against him would not necessarily be inconsistent with a finding that the applicant was threatened (or that the persecutors were motivated by a purpose or desire to harm the applicant) for reasons of his membership of a particular social group or political opinion. The motivation to satisfy a personal grudge does not necessarily mean that conduct directed at an applicant might not also be related to an applicant’s political opinion. It is clear that there may be multiple motivations for past or feared persecution and that persecution that relates to what a person has done as an in individual may nonetheless be for a Convention reason.
However in this case the Tribunal did not adopt the approach that a finding that the Maoists were motivated by satisfaction of a personal grudge against the applicant was necessarily inconsistent with a finding that the Maoists were motivated by a desire to harm the applicant by reason of his actual or imputed political opinion or his membership of a particular social group (such as police officers in Nepal).
Moreover the Tribunal did not fail to recognise and consider the possibility of multiple motivations or that where a person was targeted as an individual there might nonetheless be persecution “for reasons of” one of the Convention reasons (whether one distinguishes the “aim” and the “true reason” as discussed by Branson J in Kanagasabai at [20], or the “immediate” and “underlying” cause).
Reading the Tribunal reasons for decision fairly and as a whole, it is apparent that it engaged in the necessary evaluation in relation to the reasons the applicant was targeted and claimed to have a well-founded fear of persecution (see Kirby J in Chen at [69]) on the evidence and material before it.
The applicant’s claims were, relevantly, based on assertions in his application for a protection visa that he led the police in armed confrontations with the Maoists in 1998 where several Maoists were injured and others captured and subsequently imprisoned; that he was threatened while in S but that he ignored the threats and handed over the captives to the district police office; that he was threatened again after he left S between 1998 and 2000; and that he feared revenge by the Maoists in S. In relation to the situation in Nepal the Tribunal accepted that politics in Nepal had for some years been marked by violence and that the Maoists had continued to commit human rights abuses. The applicant had acted in the capacity of a police officer in the 1998 incidents, and there were claims about harm to other police. There were no claims to the Tribunal that the Maoists targeted the applicant because he was an “agent of the state” as such. The Tribunal specifically sought elaboration from the applicant in the Tribunal hearing on the issue of why he was threatened. However it recorded that the applicant agreed that the Maoists’ motivation was “revenge” because of his involvement with them as a police officer in 1998 and that they (the Maoists) held him responsible for the deaths of some Maoists in the fighting.
In light of this evidence, in its findings and reasons the Tribunal addressed the applicant’s claim to fear persecution “arising from his actions as a Nepalese police officer who had arrested and detained some Maoist cadres.” It recognised that this may give rise to a fear for reasons of, inter alia, membership of a particular social group (being “Nepalese police” or “something approximate to that”). The Tribunal acknowledged that in appropriate circumstances such persons may invoke refugee protection obligations as members of a particular social group, but found that neither the country information nor the evidence and submissions of the applicant “has satisfied the Tribunal that a significant and essential reason he may be targeted for harm is for reason of his membership of a particular social group”. No failure to ask the right question constituting jurisdictional error is apparent in this reasoning of the Tribunal.
The finding with which the applicant takes issue is the Tribunal finding in relation to the issue of political opinion or imputed political opinion. It found that even if it accepted that the applicant may be targeted for harm in S by Maoists for reasons of his having been responsible for the arrest and possible mistreatment of a number of colleagues of the Maoists after the 1998 incident “based on the evidence provided, the Tribunal is satisfied that the sole or dominant motive for harming the applicant in [S] would be for satisfaction of a personal grudge against him”. Reading the Tribunal reasons for decision as a whole it is clear that the Tribunal considered the possibility of multiple motivations for harming the applicant. This is clear from the reference to Singh. While recognising that Singh was not directly in point, the Tribunal referred to the observations of Gleeson CJ at [18] that “even if a killing occurs in the course of a political struggle, it will not be regarded as an incident of the struggle if the sole or dominant motive is the satisfaction of a personal grudge against the victim ……Revenge is not the antithesis of political struggle, it is one of its most common features,” in accepting that a in case where a “significant and essential reason” (the applicable concept under s.91R(1)(a) of the Act) for feared harm was based on one of the grounds in the Convention “protection obligations may arise notwithstanding that another significant and essential reason for the harm may have been non-Convention related.”
However while recognising in some cases multiple motivations may exist, in this case, on the evidence before it, the Tribunal was satisfied that the sole or dominant motivation for harming the applicant in S would be for satisfaction of a personal grudge against him. As discussed, there was no claim by the applicant that he was or could be perceived as having engaged in politically significant acts. There was no direct evidence as to the motivations of the Maoists vis-à-vis the applicant for the Tribunal to consider, other than the applicant’s testimony that the Maoists were motivated by “revenge” for the events of 1998. In particular, there was an absence of evidence that compelled an inquiry as to whether the Maoists in question wanted to harm the applicant because he was a policeman, an agent of the state, to whom a political opinion of ideological opposition to the Maoists may be imputed. The Tribunal addressed the possibility that the applicant was targeted as a Nepalese police officer.
The evidence the Tribunal accepted about the actions of the applicant and about the situation in Nepal was not such as to support an inference that there was only one reasonable finding open to the Tribunal (being Convention-related persecution for reasons of political opinion or membership of a particular social group). The fact that the applicant was a police officer, that he had harmed Maoists by leading a contingent of police, shooting at them and arresting some, and that the Maoists now wanted revenge is not such as to necessitate a conclusion that there was a causal nexus between the applicant’s fears and his membership of a particular social group or his political opinion or to demonstrate that the Tribunal failed to take the correct approach to the definition of refugee or to ask the right questions.
The Tribunal accepted the applicant’s claims that he was a police officer. It found that politics in Nepal had been marked by violence, that Maoists continued to commit human rights abuses. It made no other findings about the present or future political situation. It accepted that the applicant “as a police officer” had dealings with Maoists which led to the imprisonment of some. Notably it also found that the applicant was “employed to protect the people of Nepal”, in that way addressing how he may, on the evidence before it, be perceived. In light of the applicant’s own evidence that his fear was one of revenge from the Maoists because of his involvement with them as a police officer in 1998, the Tribunal did not fail to ask the correct question in not specifically addressing the possibility now raised that the underlying cause of any revenge sought was an actual or imputed political opinion of ideological opposition to the Maoist.

The Tribunal understood that the phrase “for reasons of” in Article 1A(2) of the Convention served “to identify the motivation for the infliction of the persecution and the objective cause to be attained by it”. It properly addressed the requirements of s.91R(1)(a) (and there is no suggestion that it made an error of law in relation to the requirements of that section) in situations where the persecution feared was from multiple motivations.
There is nothing in the material before the Court to suggest that the applicant claimed (or that the evidence before the Tribunal raised a claim) that he was targeted because he would be imputed with a political opinion by having engaged in what might have been seen as a political act, such as leading a confrontation against Maoists and delivering captured Maoists to police headquarters. The evidence before the Tribunal did not raise a claim of an actual or imputed political opinion of ideological opposition to the Maoists in the face of threats to the applicant’s life such as to require the Tribunal to ask the first question posed in the amended application.
In contrast, in Sarrazola the motivation of the imputed persecutors was in evidence before the Tribunal (see the Full Court summary evidence before the Tribunal at [3]). It was in the context of evidence about a number of aspects to that motivation that Hely J had suggested that the combination of motivations were “inextricably linked” (at [45]) and found that it was not open to the Tribunal to conclude that it was not satisfied that the harm feared arose “even in part” for a Convention reason. Similarly in Okere the motivations of the imputed persecutors were in evidence before the Tribunal (see Okere at [114] – [115]). In that context Branson J indicated that the Tribunal was required to ask itself whether “applying common sense to the facts which it accepted”, the applicant had a well-founded fear of persecution “the true reason for which is his religion”, and recognised that persecution could take an indirect form (at [118]).
In this case, while the Tribunal recognised the possibility of multiple motivations it cannot be said that there was an irresistible conclusion on the evidence before the Tribunal that because the Maoists wished to take revenge against the applicant an essential or significant reason they wished to do so was because he had or would be imputed with a particular political opinion (see Kirby J in Singh at [120] – [122]) or that the evidence was such that this possibility had to be addressed expressly in the manner contended for by the applicant. In particular it can be said that there was evidence of a combination of inextricably linked aspects to the motivation of the Maoists such that the Tribunal had to address expressly the possibility of an “underlying cause” for the revenge sought by the Maoists as contended. The Tribunal did not simply draw a distinction between Convention-based harm and harm based on what the applicant did as an individual.
The Tribunal did ask whether, on the evidence before it, the applicant had a well-founded fear of persecution for a Convention reason. It did not expressly refer to applying “common sense” to the facts. However, it has not been established that its approach was lacking in common sense in such a way as to demonstrate a failure to apply the law correctly in light of the principles in Chen as discussed in Gersten and consistent with the approach of the Full Court of the Federal Court in Sarrazola. It did not apply a ‘but for’ test. It understood and addressed the possibility that persecution may have more than one motivation. On the material before it the Tribunal has not been shown to have failed to ask the correct question, or to have misunderstood or failed to apply the law in any of the ways contended for by the applicant.
Moreover, insofar as it is suggested that the facts accepted (or not rejected) by the Tribunal raised a possibility of an imputed political opinion, the Tribunal dealt with the issue of political opinion in light of the facts it accepted about what had in fact occurred to the applicant since 1998. It found:
The evidence before the Tribunal indicates that the Applicant has not suffered any harm since 1998. He stated that during his years as a police officer he also confirmed to work on his farm in B [an area where the applicant claimed the strength of Maoists had increased]. He stated that it was his intention to return permanently to his farm once he returned in 2008. The applicant stated in his evidence that he received threats from the Maoists between 1998 and 2000. He stated that whilst he was stationed in Kathmandu he was not in fear of harm from the Maoists because Kathmandu was not badly influenced by the Maoists and they could not harm him.
In light of this evidence and the applicant’s agreement that his fear was one of revenge from the Maoists because of his involvement with them as a police officer in 1998 it was open to the Tribunal not to accept that the essential or significant reason for his fear of harm was Convention related.
In conclusion, it has not been established that the Tribunal failed to ask the correct question or questions. The Tribunal expressly addressed the issue of actual or imputed political opinion as set out above. It clearly understood that there may be more than one significant and essential reason for feared harm. It asked whether that was the position in the case before it. Its reasoning and findings that based on the evidence provided it was satisfied that the sole or dominant motive for harassing the applicant in S would be for the satisfaction of a personal grudge against him and that accordingly it was not satisfied that a significant and essential reason for harming the applicant would be for a Convention reason does not reveal error of the sort contended for in ground 1.

Irrelevant consideration

Ground 2 in the amended application is that the Tribunal committed jurisdictional error in taking an irrelevant consideration into account “that being that officers of the state, charged with protecting the state and its people are outside the protection of the Refugees Convention”.
The applicant submitted that the Tribunal fell into error in stating “However the applicant was a police officer, employed to protect the people of Nepal” in that by this statement it appeared to say that because the applicant was an officer of the state who was charged with protecting the state and its people he was somehow precluded from the protection of the Refugees Convention. There was said to be nothing in the Convention which prevented its application to officers of the state in such circumstances and submitted that by creating such an exemption the Tribunal had taken an irrelevant consideration into account. This ground was not elaborated on in oral submissions.
The first respondent contended that this ground was manifestly insubstantial being based on inference and supposition and contended that it should not be entertained in light of the High Court’s recent re-endorsement of the authority of Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 in relation to the role of the court on judicial review in SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at [25].
No jurisdictional error is established on this basis. Reading the Tribunal’s decision fairly and as a whole (and bearing in mind what was said in Wu Shan Liang) I am not satisfied that the Tribunal was making a finding that because the applicant was an officer of the state he was necessarily precluded from the protection of the Refugees Convention. Rather it was addressing the issue of state protection as discussed further below. In addition, this finding was consistent with the Tribunal’s subsequent conclusion that the applicant’s fear of harm was not for reasons of his actual or imputed political opinion. In any event, the Tribunal’s reference to this matter cannot be said to amount to taking into account an irrelevant consideration in such a way that affected its exercise of power (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ). However, insofar as this finding may be seen as the sole basis for the Tribunal’s conclusion in relation to effective state protection it is discussed in relation to ground 3.

State protection

The third ground in the amended application is that the Tribunal committed jurisdictional error in its consideration of the issue of state protection “in that it failed to consider how effective such protection may be”.
It was contended that the state protection issue had been addressed by the Tribunal in almost a “throwaway line”, as follows:
However the applicant was a police officer, employed to protect the people of Nepal. In addition to not fearing harm for any Convention reason, the applicant, had he taken up the position [his posting at S] would be the recipient of his own state’s protection should he become a target of any Maoist attacks.
The applicant submitted that this analysis of state protection was defective, in that the Tribunal did not ask how effective such protection may be (see Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1 at 89, [19] – [22]) and that without asking this question the Tribunal could not hope to consider lawfully whether the applicant had a well-founded fear of persecution. It was acknowledged that the circumstances of NAFF were very different to the facts of this case, but contended that the question of state protection must necessarily be related to the definition of refugee as the degree of efficacy of state protection went to the well-foundedness of fear. It was said by the applicant that in this case there was in fact a great deal of evidence before the Tribunal to suggest that any protection the state would provide to police was not particularly effective. Hence there was a real question as to how effective any state protection would be, but the Tribunal had not attempted to answer or address this issue.
It was initially submitted by counsel for the first respondent that the effectiveness of state protection was not put in issue by the applicant’s claims. However it was subsequently acknowledged that the applicant’s adviser had addressed the issue of state protection in a written submission to the Tribunal in which it was claimed that Nepal was in a state of “chaotic war” and that its security and judicial apparatus was “dysfunctional” such that on no reasonable assessment of the situation could the state be regarded as being in a position to provide effective protection in accordance with accepted international standards. It was also claimed by the applicant’s adviser that the state security apparatus was corrupt, ineffective and inadequate in response to the risk posed by the Maoists such that throughout Nepal the Maoists were law unto themselves. The applicant’s adviser referred the Tribunal to various aspects of country information relevant to the effectiveness of state protection.
It was nevertheless contended by counsel for the first respondent that while this material raised the issue of state protection, it did so in the context of the country being at civil war and not in the context of a claim that the applicant was not able to have effective state protection as a member of the police force. It was submitted that independent country information provided by the applicant in relation to killings of members of the police during October and November 2003 at a time when the country was in civil war did not show that a police officer could not obtain real and effective state protection when putting him or herself at risk by engaging in armed conflict with the Maoists. It was said that it was clear that the state was not obliged to guarantee safety and contended that there was no evidence before the Tribunal that the Nepalese police force or army could not give real and effective protection to members of the police force and army notwithstanding that some of them had been killed in the civil war. On this basis it was submitted that the finding that the applicant would be a recipient of his own state’s protection was clearly open to the Tribunal. It was also said that there was no evidence of what the accepted international standard was for protection of armed forces involved in a civil war or some other armed conflict, that the summary of the situation of Nepal during the civil war did not constitute a claim and that the Court should not engage in constructive or creative activity to discern a claim (NABE at [58]). It was also contended that the applicant had not claimed that he would not be able to avail himself of real and effective state protection as a policeman in Nepal.
However, I am satisfied that this ground is made out. As contended for the applicant the issue was not whether a combatant in a conflict could obtain effective protection before the Tribunal. The applicant was not an ordinary combatant, but was targeted specifically and personally. The issue of state protection was raised by and for the applicant and in relevant independent country information put before the Tribunal by the applicant. While it is not necessary for a state to guarantee protection, there was evidence before the Tribunal in this case such that it was necessary for it to ask whether state protection was effective.
The Tribunal did not address the issue of the effectiveness of state protection beyond stating that the applicant, who was a police officer employed to protect the people of Nepal, would be the recipient of his own state’s protection. Whether or not the Tribunal would have been satisfied on the evidence before it of the ability of the state to protect the applicant in light of the claims made in that respect, it was necessary for the Tribunal to consider how effective the protection available to the applicant may be given the evidence put before it and its acceptance of the fact of violence in Nepalese politics and that the Maoists continued to commit human rights abuses. The applicant clearly put in issue the effectiveness of state protection in his initial claim that if he went to S he would be targeted by the Maoists “easily”, that they had become a very powerful force in S since 1998 with the capacity to blow up the whole district police office and that the situation was now such that “if they tried to kill anyone they can kill anyone outside the Kathmandu Valley”. His adviser’s written submission elaborated on this claim.
However as Counsel for the applicant conceded, if no other jurisdictional error was made out, there would be an independent basis for the Tribunal decision (the absence of a Convention nexus) not affected by error in relation to the issue of state protection. Hence, despite the fact that jurisdictional error is established on the basis contended for in ground 3, relief should be withheld as a matter of discretion as the Tribunal decision has not been shown to be affected by jurisdictional error on either of the other bases contended for by that applicant. In such circumstances the Tribunal’s findings as to the absence of a Convention nexus provide an alternative basis for the decision, not affected by jurisdictional error. (See SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at [25] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
Accordingly the application should be dismissed.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 14 December 2007