SZLDN v Minister for Immigration - [2008] FMCA 505

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLDN v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 505

MIGRATION – Review of decision of Refugee Review Tribunal – whether error of fact is a jurisdictional fact – whether error of fact is a jurisdictional error – assessment and weight of country information.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 474

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1
NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC)
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 (2003) 198 ALR 59
Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61

Applicant:

SZLDN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2405 of 2007

Judgment of:

Orchiston FM

Hearing date:

27 February 2008

Date of last submission:

27 February 2008

Delivered at:

Sydney

Delivered on:

24 April 2008

REPRESENTATION

Counsel for the Applicant:	Mr J.R. Young
Solicitors for the Applicant:	Simon Diab & Associates

Counsel for the Respondent:	Ms K.C. Morgan
Solicitors for the Respondent:	DLA Phillips Fox

ORDERS

The application filed on 6 August 2007 and the amended application filed on 20 February 2008 are dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,500 payable within five (5) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2405 of 2007

SZLDN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) signed on 28 June 2007 and notified to the applicant by letter dated 12 July 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a protection visa to the applicant.

Background

The applicant was born on 30 June 1960 and was aged 46 years at the time of his application for a protection visa.
The applicant claims to be a national of Nepal, of Brahamin ethnicity, and of Hindu faith.
The applicant arrived in Australia on 30 November 2006 on a Nepali passport issued in his own name, holding a Visitor visa, which was valid until 7 October 2007.
The applicant lodged an application for a protection visa on 12 January 2007 on the basis that his support for the Constitutional Monarchy in Nepal has made him a target for persecution by members of the Maoist Communist Party, and other political parties, in Nepal (CB 21–24).
On 9 March 2007 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 30 March 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 160–163).

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceedings

On 10 April 2007, the Tribunal sent a letter to the applicant inviting him to appear before it to give oral evidence and present arguments (CB 170–171).
The Tribunal conducted a hearing on 15 May 2007. The applicant gave oral evidence, assisted by an interpreter in the Nepali language. The applicant provided further material at the hearing.
On 28 June 2007, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.

The applicant’s claims

The Tribunal summarised the information given by the applicant in the protection visa application and referred to various other letters provided by the applicant (CB 205-208), including a letter from the applicant to the Department addressing his claims to be a refugee.
The Tribunal summarised the evidence given by the applicant at the hearing (CB 208-211). It also summarised the claims of the applicant for a protection visa (CB 219):
The applicant claims that if he returns to Nepal he will be targeted by the Maoists because of his refusal to pay the extortion demand [made in 2004], his perceived links with the Monarchy as a result of his former position of Ward Chairman [for six months in 2003-04], and because of his position with Amnesty International. The applicant has also claimed that he will be targeted by the Seven Political Parties, including the Nepali Congress Party.

The Tribunal’s findings and reasons (CB 217–222)

The Tribunal accepted that:
·the applicant was a national of Nepal
·he previously occupied a position in the Nepali Congress and occupied a position as Ward Chairman in his local area for some six months between 2003 and 2004.
·during that six month period he received threats from both the Nepalese Congress Party and the Maoists; and
·in 2004 he received a request to pay a ‘donation’ from the Maoists.
The Tribunal also accepted that, during the six month period in 2003 -2004 during which the applicant was a Ward Chairman, he had a well founded fear of persecution from the Maoists because of his position as Ward Chairman and his perceived links with the Monarchy and that he resigned from that position because of fear (CB 219).
The Tribunal also accepted (CB 220) that:
·the applicant was, and continues to be, a Monarchist
·the applicant was not, and is not, a member of a royalist political party.
However, for the following reasons summarised below, the Tribunal did not accept that there was a real chance that the applicant will be harmed in the reasonably foreseeable future if he returned to Nepal:
The Tribunal has not accepted that the applicant fears harm in the future from Maoists, the Nepali Congress Party or the Seven Political Parties which form the current government. The Tribunal therefore finds that the applicant does not have a well founded fear of persecution in Nepal because he is perceived by the Maoists, Nepali Congress or the current government to hold, or is perceived to hold, a political opinion opposed to those groups or because of his membership of a particular social group or for any other Convention reason. The applicant does not, therefore, have a well founded fear of persecution for a Convention reason. (CB 222).
The first set of reasons provided by the Tribunal concerned the ‘donation’ request from the Maoists in 2004 (CB 218). The Tribunal did not accept as credible the claim by the applicant that he was targeted after he refused to pay the request for a donation because it:
·did not accept that the Maoists, having orchestrated a widespread campaign of extreme violence and violation of human rights, would not have allowed the applicant to evade the payment of the money during a period of some 2 years
·did not accept that the Maoists would not have been able to retaliate against the applicant
·did not accept that the applicant would have been able to avoid being harmed for non-payment in circumstances in which he remained at the same place of employment
·did not accept the applicant's claim that he avoided being threatened while at work only because staff prevented the Maoists entering the offices, as this did not explain why the applicant was not harmed at other times
·did not accept that the applicant was in hiding in different places and for that reason was able to avoid payment, and
·did not accept that the applicant was able to avoid harm from the Maoists for two years whilst he continued to occupy the same position in this company.
The second set of reasons provided by the Tribunal (CB 219) also dealt with the demand from the Maoists for money in 2004. The Tribunal accepted that a demand for money was made on the applicant at that time (“like many thousands [of] Nepalese citizens who were the subject of widespread extortion demands by Maoists during the ten year civil war”). However, the Tribunal found that:
·the initial request by the Maoists for money did not involve serious harm to the applicant as it did not involve serious harm, nor systematic and discriminatory conduct, within the meaning of s.91R;
·the demands were not motivated by a Convention reason as the demands were widespread.
The third set of reasons provided by the Tribunal (CB 219-222) dealt with whether the applicant would be targeted by Maoists, or others, if he were now to return to Nepal. The Tribunal considered that although the applicant had a well founded fear of persecution from the Maoists in 2004, and resigned from his position as Ward Chairman because of that fear:
·it did not accept that the applicant faced any further harm or was targeted after that resignation and after the demand by Maoists for money, in 2004
·it did not accept that the applicant would be subject to threats in the future from Maoists for his non-payment of extortion demands made to himself, as well as many other thousands of persons, some three years ago
·it considered that the position of Ward Chairman, on the applicant’s own evidence, was a local position and the functions were primarily of a social welfare and administrative nature and were not significantly political
·it did not accept that the applicant has been threatened or harmed by Maoists in the period after his resignation from Ward Chairman in 2004
·it did not accept that the applicant was in hiding from time to time because of the extortion demands, given his own evidence at the Tribunal hearing that he continued to be employed by the same company from the time the threat was made in 2004, until his departure from Nepal in November 2006
·it did not accept that the applicant would be targeted by Maoists because of his previous links with the Monarchy because particular independent evidence indicated that it is persons who are members of royalist political parties who may be targeted by the youth wing of the Maoists. [I note that this finding is of key relevance for the purposes of ground 4].
·it considered that other independent evidence also indicates that following the ceasefire and the formation of the Seven Party Alliance, the Monarchy no longer has any political role in the government of Nepal and, as such, there is no continuing need for ongoing retaliation of monarchists by Maoist elements
·it did not accept the applicant’s claim that he would be targeted because of his involvement in Amnesty International
·as the applicant has not been targeted in Nepal since 2003–2004 by the Maoists or the Nepali Congress, it did not accept that the applicant has had any profile which would attract the adverse attention of the Maoists since he resigned from the position of Ward Chairman in 2004
·the ceasefire situation in Nepal will, if anything, lessen any remote chance that the applicant's profile is such that he will attract the adverse attention of the Maoists upon his return to Nepal.
·it did not accept the applicant’s claim that he would be subjected to harm by the Seven Political Parties, including the Nepali Congress Party, because the evidence did not establish that he would have the profile that would continue to attract the adverse attention of that Party.
The fourth set of reasons provided by the Tribunal (CB 221) concerned the applicant’s claim that his family resided in an area of Nepal occupied by a Maoist factional group. The Tribunal found that any extortion demands being made in Nepal were by rogue Maoists elements and it was not satisfied that any demands would be motivated by the applicant’s views on the Monarchy, his membership of Amnesty International, his past involvement with the former government, or any other Convention reason.

The proceedings before this Court

The applicant filed the application in this Court on 6 August 2007, setting out 3 grounds for review of the Tribunal’s decision. An amended application was filed on 20 February 2008 setting out 4 grounds for review.
Mr Young of counsel appeared on behalf of the applicant at the hearing before this Court on 27 February 2008. Ms Morgan of counsel appeared for the first respondent.

Grounds 1, 2 and 3 of the application

Grounds 1, 2, and 3 of the application were not pressed.

Grounds 1, 2 and 3 of the amended application

Grounds 1, 2, and 3 of the amended application were not pressed.

Ground 4 of the amended application

Ground 4 of the amended application states that:
The Second Respondent at CB 220.5 to 220.7 made jurisdictional error by rejecting the claims of the applicant to fear persecution from the Maoists by reason of the fact that the applicant was a supporter of the Monarchy, where that rejection:
a)was based upon alleged country information of which there was no evidentiary basis; and
b)was based upon a distinction which was neither made by the applicant nor was it relevant, that members of the "youth wing of the Maoists" were targeting members of royalist political parties (and by implication members of the "youth wing of the Maoists" were not targeting supporters of the Monarchy who were not members of political parties)
and where the Second Respondent had accepted at CB 219.7 that the applicant had (had) a well founded fear of persecution from the Maoists because of his perceived links with the Monarchy.

Consideration of amended ground 4

The applicant’s claim relevant to this ground of amended application, is that he fears persecution from the Maoists if he returns to Nepal by reason of his being a supporter of the Monarchy.
In considering this amended ground, I first refer to the applicant’s reference therein to CB 219.7. In that paragraph, the Tribunal, (after referring to evidence ) concerning events in the six month period in 2003 – 2004, during which the applicant held the position of Ward Chairman), concluded that:
The Tribunal therefore accepts that the applicant had a well founded fear of persecution from the Maoists because of his position as Ward Chairman and his perceived links with the Monarchy and that he resigned from that position because of fear… (CB 219.7).
It is clear that this conclusion by the Tribunal concerns only the period 2003 – 2004 during which the applicant was the Ward Chairman. It could not be construed as any form of finding, or concession, by the Tribunal that the applicant had a well founded fear of persecution by Maoists if he were now to return to Nepal.
In considering whether the applicant now has a well founded fear of persecution from Maoists if he returns to Nepal, the principal paragraph of the Tribunal’s Findings and Reasons on which this ground of application is based, is as follows (CB 220):
The Tribunal accepts that the applicant supported the monarchy and continues to do so. However, the Tribunal has not accepted that the applicant was harmed following his resignation from the position of Ward Chairman, which he claimed resulted in him being perceived as a "servant of the King". The Tribunal further considers that the independent evidence indicates that it is not persons with the applicant's perceived profile as a Monarchist supporter who are being targeted by Maoists. The independent evidence indicates that it is persons who are members of royalist political parties who may be targeted by the youth wing of the Maoists (see International Crisis Group, 2007, Nepal's Maoists: purists or pragmatists? ICG website, 27 April [the ICG report]).The applicant has not claimed, nor does his evidence establish, that he was a member of such a party or that he would be a member of such a party in the future. The Tribunal does not, therefore, accept that the applicant would be targeted by the Maoists because of his non-payment of a "donation" or his previous links with the Monarchy and his former position as Ward Chairman. The independent evidence also indicates that following the ceasefire and the formation of the Seven Party Alliance, the Monarchy no longer has any political role in the government of Nepal and, as such, there is no continuing need for ongoing retaliation of monarchists by Maoist elements. [emphasis added]
The applicant submits that the reference by the Tribunal in the above quotation to the “independent evidence indicat[ing] that it is persons who are members of royalist political parties who may be targeted by the youth wing of the Maoists” was a finding of fact by the Tribunal on which there was no evidence in the relevant country information referred to by the Tribunal (being the ICG report) and that while the weight and accuracy of country information are matters for the Tribunal, the Tribunal is not entitled to base its decision upon “non-existent country information”.
By way of clarification, I take it that the applicant's above use of the term "non-existent" country information means, in the context of this case, that the cited country information does not contain the fact that the Tribunal claims it contains. In other words, the applicant asserts that the ICG report did not indicate that it is persons who are members of royalist political parties who may be targeted by the youth wing of the Maoists, and by implication did not indicate that members of the youth wing of the Maoists were not targeting supporters of the Monarchy who were not members of political parties.
Before considering the specific situation in this case, I accept the submission from the applicant that there is a distinction between a Tribunal relying on incorrect country information and a Tribunal asserting a fact by reference to country information that does not contain that fact.

In regard to the former situation, it is clear that the Tribunal’s choice and assessment of relevant country information is a purely factual matter for it: (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[14]; NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 at [8] per Gleeson J; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81] and [84]). Even if there is evidence to establish that the Tribunal has made an error of fact by relying upon incorrect country information, this would not amount to an error of law, let alone jurisdictional error: NAHI v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137]). Also, the weight the Tribunal gives to any country information is ultimately a factual matter for it: (NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 (FC) at [81]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]; Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]).
In regard to the latter situation, I accept that an error of fact has occurred if a Tribunal relies on county information to assert a fact which is not contained in that country information. Depending upon the circumstances (see below) that error of fact could amount to a jurisdictional error by the Tribunal.
Turning now to the specific situation in this case, the applicant submits that:
Two points need to be observed about this [ICG report] and its applicability to the claims of the Applicant. Firstly nowhere had the Applicant limited or indeed even mentioned that he feared being targeted by the "Youth Wing" of the Maoists.
Secondly, nowhere in the report of the ICG is there anything which could justify the conclusion or finding of the RRT that it is only persons who are members of royalist political parties as distinct from supporters of the Monarchy who may be targeted for harm.
In regard to the first point raised by the applicant, the applicant has not provided the Court with the transcript of the Tribunal hearing. Nonetheless, I accept the submission by the applicant that nowhere has the applicant limited or even mentioned that he feared being targeted by the "Youth Wing" of the Maoists.
In regard to the second point raised by the applicant, the Tribunal states that it accepts that the applicant is a supporter of the Monarchy and that he has not been, nor will be, a member of a royalist political party.
The first respondent acknowledges that this is a factual error in the Tribunal's decision, but submits that it is not a jurisdictional error but an error within jurisdiction. It submits in this regard that:
The preliminary [Tribunal] finding that the independent evidence [the ICG report] indicates that it is persons who are members of royalist political parties who may be targeted by the youth wing of the Maoists is not supported on the material, in my submission, is an error of fact made within jurisdiction (Transcript p 17).
... the error of fact made by the Tribunal by restricting the [Maoist] youth league's violence to members of royalist parties and that the applicant wasn’t a member of that royalist party was an error within jurisdiction (Transcript p 19-20).
The first respondent thus concedes that the Tribunal made an error of fact regarding what can be drawn from the ICG report, that error being that any violence by members of the youth wing of the Maoists is confined to members of loyalist political parties (of which, it is not in dispute, the applicant was not a member).
Not all errors of fact, however, made by a Tribunal necessarily constitute jurisdictional error. The question of when an error of fact amounts to a jurisdictional error was considered by the Full Federal Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [52]-[54]:
The question that arises in the present case is whether and to what extent a factual error on the part of the Tribunal may evidence or constitute a failure to carry out its review function or otherwise amount to a failure of jurisdiction amenable to the writ of certiorari and/or mandamus and prohibition.
It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
‘Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.’ [emphasis added] Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473 at 481 [35] per McHugh J.
The question was further discussed in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 (2003) 198 ALR 59. McHugh and Gummow JJ, with whom Callinan J agreed, rejected a submission by the Minister that the presence of an error of law was essential for a finding of jurisdictional error to support the grant of relief under s.75(v) of the Constitution. They said (at 71 [54]):
‘The introduction into this realm of discourse of a distinction between errors of fact and law, to supplant or exhaust the field of reference of jurisdictional error, is not to be supported.’
In applying these principles to the present case, in particular the test of McHugh J in Ex parte Cohen at [35], the question that the Tribunal had to decide was whether the applicant had a well founded fear of persecution by Maoists if he returned to Nepal.
In determining whether the Tribunal fell into jurisdictional error in this regard, it is relevant to consider, (in addition to the factual error made by the Tribunal) the further following matters:
·the nature of the Tribunal proceedings
·three further references to relevant country information (referred to by the Tribunal as independent evidence)
·the Tribunal's findings in regard to the applicant’s evidence.
Firstly, in regard to the nature of the Tribunal proceedings, it is well settled that although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of the individual case must be supplied by the applicant in as much detail as is necessary to enable the Tribunal to establish the relevant facts. As observed by the Full Federal Court in WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]:
It was for the appellant to make his case before the Tribunal.
Also, as stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As further observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Applying these principles to the present case, it is for the applicant to satisfy the Tribunal concerning his claim that he would be targeted by Maoists if he were to return to Nepal. The Tribunal is not obliged to accept this claim, unless there is contrary country information or other evidence.
Secondly, in regard to country information concerning Maoists, the applicant argues that “the critical question … is whether there was evidence that persons who supported the Monarchy but were not members of political parties as such would not be targeted by the Maoists. There was no such evidence and the Tribunal itself confined consideration to targeting by the Youth Wing of the Maoists, a distinction which nowhere did the Applicant seek to make.”
However, applying the legal principles set out above concerning the nature of Tribunal proceedings, I do not accept the applicant’s submission on this point. I accept that the first respondent accurately states the position in the following:
The critical question is whether the Tribunal had evidence from which it could be satisfied that the applicant would [emphasis added] be targeted by the Maoists on return to Nepal.
The applicant further submits that “the Tribunal based its finding that the applicant would not face any fear of harm in the future on a finding that there was a specific profile of the kind of person who would face harm in the future. And that profile is that it was a person who was a member of a royalist political party and that the only person, or the only group, and that such a person need fear is the [Maoist] youth wing.” (Transcript p 10). This submission appears to rely on the following passage in the Tribunal decision (CB 220):
The Tribunal further considers that the independent evidence indicates that it is not persons with the applicant's perceived profile as a Monarchist supporter who are being targeted by Maoists. The independent evidence indicates that it is persons who are members of royalist political parties who may be targeted by the youth wing of the Maoists (see the [ICG report]).
It is not in dispute that the second sentence in the above passage constitutes the factual error. That error also undermines the validity of the conclusion drawn by the Tribunal in first sentence.
However, independently of this statement, the Tribunal considered other country information which was relevant to the question whether the applicant would be targeted by Maoists if he returned to Nepal. In this regard, the Tribunal stated that:
No information was found in the sources consulted regarding the recent use of violence by Maoists against monarchists generally. (CB 216)
The applicant submits that this statement by the Tribunal “flatly contradicts any construction of the independent evidence to base a position finding that persons who are Monarchist supporters but not members of political parties are not being targeted by the Maoist. It simply points to a lack of information”, and is “certainly not evidence that it is persons who are members of royalist political parties only who may be targeted and it is also not evidence that the only targeting is going to be by the Maoist student wing” (Transcript p 9).
The first respondent concedes the factual error on this point, as explained above. However, it submits that this statement by the Tribunal constitutes a relevant finding. It submits in this regard that:
…if one has, as this Tribunal did, significant and incredibly up-to-date material about the state of the political and constitutional position in Nepal that included references to the youth league of the Maoists’ attacks generally and concluded that there is no information that there is violence by Maoists against Maoists generally, that finding is open. Proving a negative [lack of violence] is difficult but it doesn’t mean one needs positive assertion to found a negative conclusion. (Transcript p 17)
I accept the submission by the first respondent on this matter. I consider that the Tribunal has reached a relevant finding, namely, that there is no evidence from the country information it consulted of the use of violence by Maoists (whether or not by the Maoist student wing), against Monarchists generally.
In the second reference to other country information considered by the Tribunal, the Tribunal stated that:
The independent evidence also indicates that following the ceasefire and the formation of the Seven Party Alliance, the Monarchy no longer has any political role in the government of Nepal and, as such, there is no continuing need for ongoing retaliation of monarchists by Maoist elements (CB 220).
The applicant submits that the Tribunal’s conclusion in this regard that there is no continuing need for ongoing retaliation by Maoist elements against Monarchists:
…is simply an observation. It is certainly not a finding … The issue is, is there persecution in fact, not is there a need for persecution. (Transcript p 9)
The first respondent submits that the conclusion reached by the Tribunal on this matter was open to it, as the country information that the Tribunal had consulted on the current political situation in Nepal (summarised at CB 212-216):
shows a political state that doesn’t support the general proposition that the Maoists would be attacking royalists (Transcript p 17).
I accept the submission by the first respondent. A Tribunal is entitled to draw conclusions reasonably open to it from country information it has consulted. I consider that it was open to the Tribunal, having considered that country information, to reach the view that it did based on that information.
The third reference to other country information considered by the Tribunal (after indicating that it had examined closely independent evidence on recent cease-fire and other developments in Nepal, including information provided by the applicant (that indicated that some unrest was still occurring (CB 183-186)), is that:
The Tribunal does not, therefore, accept that the applicant has had any profile which would attract the adverse attention of the Maoists since he resigned from the position of Ward chairman in 2004. The Tribunal considers that the ceasefire situation in Nepal will, if anything, lessen any remote chance that the applicant’s profile is such that he will attract the adverse attention of the Maoists upon his return to Nepal (CB 221).
I consider that this finding was open to the Tribunal on the country information it had consulted.
Turning to the applicant’s evidence, I consider that certain findings by the Tribunal are relevant to the question of whether the applicant would be targeted by Maoists if he were to return to Nepal, namely (CB 219-220):
·the Tribunal did not accept that the applicant would be subject to threats in the future from Maoists for his non-payment of extortion demands made to himself, as well as many other thousands of persons, some three years ago
·the Tribunal did not accept that the applicant has been threatened or harmed by Maoists in the period after his resignation from Ward Chairman 2004:
Whilst the applicant claimed that he continues to fear harm because of his involvement [as Ward Chairman], the Tribunal does not accept that the applicant’s own evidence establishes that he received any continuing threats or that he was harmed by Maoists following his resignation from the position of Ward Chairman in 2004. The Tribunal also considers that if the applicant was wanted by the Maoists as a result of occupying a position of Ward Chairman that they had ample opportunity to do so in the two years prior to his resignation from the position [in 2004] and his departure from Nepal [in 2006] (CB 220)
·the Tribunal did not accept that the applicant was in hiding from time to time because of the extortion demands by Maoists, given his own evidence at the Tribunal hearing that he continued to be employed by the same company from the time the threat was made in 2004 until his departure from Nepal in November 2006.
Putting aside the factual error made by the Tribunal for the present purposes, and taking into account the totality of the evidence considered, and the relevant findings made by the Tribunal as to whether the applicant would be targeted by Maoists if he were to return to Nepal, I am satisfied that it does not compel the conclusion that a reasonable Tribunal would have to be satisfied that the applicant would be so targeted. Rather, I consider that it was open to the Tribunal to find, for the reasons that it did, that the applicant did not have a well founded fear of persecution by Maoists if he returned to Nepal. In these circumstances, I am satisfied that the error of fact in this case is not a jurisdictional fact.
Adopting the test posed by McHugh J in Ex parte Cohen at [35], I therefore conclude that the erroneous finding of fact made by the Tribunal in the course of making its decision does not demonstrate that the Tribunal so misunderstood the question it had to decide that its error of fact constituted a jurisdictional error.
Accordingly, Ground 4 of the amended application is rejected.

Conclusion

The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application and amended application before this Court are dismissed.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate: Duncan Maconachie

Date: 24 April 2008