(b) The Tribunal's consideration of the availability of state protection
34 The second hurdle the applicant must overcome to succeed is to establish jurisdictional error in the way the Tribunal considered the adequacy of state protection available to the applicant in Nepal.
35 The significance of this issue is that the willingness and ability of the state to protect its citizens is relevant to whether an individual has a well founded fear of persecution: S152/2003 at 493, [21].
36 In that case the majority (Gleeson CJ, Hayne and Heydon JJ) at 494 - 495, [26] stated:
'No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. … The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force.'
37 It is apparent from their Honours' reasons that, in cases where the state or its agents is the perpetrator of the harm, and where the state or its agents encourages or tolerates or condones the harm or the feared harm, conclusions that the fear is well-founded, that the harm feared amounts to persecution, and that there is an unwillingness to return to the country of nationality for reasons of such fear can readily be drawn. Of course, the harm must be of sufficient seriousness, and must be for a Convention reason. The applicant in S152/2003 unsuccessfully sought to make out such a case. In this matter, the applicant makes no such allegations.
38 The claim here is that the applicant's fear of harm is well-founded, and that he is unwilling to return to Nepal, or to seek its protection, because Nepal is unable to protect him. The majority judgment in S152/2003 in the passage quoted above indicates that in such a case there are (at least) two steps to take. The first is to determine whether there is a real chance (as explained in Chan and other cases in the High Court) that the applicant will suffer serious harm at the hands of the non-state entity or group. For the purposes of this matter, I assume (as the Tribunal appears to have accepted) that the applicant has a subjective fear of such harm, and that any such harm would be inflicted for a Convention reason. The Tribunal appears to have accepted those two matters. If there is then a well-founded fear of serious harm from a non-state entity or group, the second step is to determine whether the country of nationality has taken reasonable measures to protect the lives and safety of its citizens, relevantly here by the provision of a reasonably effective police force and a reasonably impartial system of justice. An alternative formulation of the second question may be whether the state police and authorities meet international standards: see S152/2003 at 495, [28]. The appropriate level of state protection need not lead to the finding that the fear of harm is not well-founded, or that there is no real chance of the feared harm occurring. The existence of the appropriate level of state protection leads to the conclusion, as the majority judgment in S152/2003 shows, that there is not a justifiable unwillingness to seek the protection of the country of nationality. If the unwillingness is not justifiable, it is not owing to the fear of persecution: S152/2003 at 492, [19]; Khawar at 10, [21] per Gleeson CJ and at 21, [61] - [62] per McHugh and Gummow JJ. Moreover, if the country of nationality provides its citizens with the level of protection that they are entitled to expect according to international standards, fear of harm will not amount to a fear of persecution: S152/2003 at 496, [29].
39 In S152/2003, McHugh J reached the same conclusion as the majority but by a somewhat different route. His Honour did not consider that a necessary element of persecution is that the state has breached a duty that it owes to the applicant for refugee status. His Honour said at 505, [65]:
'If conduct constitutes persecution for a Convention reason when carried out by the state or its agents, it is persecution for a Convention reason when carried out by non-state agents.'
However, his Honour pointed out at 508, [76] that where the feared persecution is from non-state entities or agents, the preparedness of the state to act against them so as to eliminate or reduce the threat may result in the fear not being well-founded because there is no real threat that the persecutory conduct will occur. Where, despite the efforts of the state, the fear of persecution from non-state entities or agents remains well-founded, his Honour concluded that refugee status cannot be denied merely because the state and its agencies have taken all reasonable steps to eliminate the risk (at 510, [83]). McHugh J agreed with the outcome of that case because the Tribunal had concluded that there was no well-founded fear of persecution on the part of those applicants.
40 In that case, Kirby J also agreed with the outcome. His Honour thought the case involved no new principle and no important proposition of law, but involved simply a decision by the Tribunal on the facts which was open to it (at 519, [119]).
41 The majority in S152/2003, observed at 495, [28] that, because the case there presented alleged state participation or state complicity in the persecutory conduct, there was no evidence on the topic of whether that state provided 'its citizens with the level of state protection' required by 'international standards'. It was not necessary to consider what those standards might require or how they could be ascertained. It is clear that there will need to be evidence in such a case as the present to support a conclusion that the state concerned did not provide the level of state protection required by such standards.
42 Their Honours at 495, [28] further made clear that, in such circumstances, the state concerned is not required to guarantee the safety of the putative refugee from harm caused by persecutory conduct by non-state persons. They said:
'If the Full Court contemplated that the tribunal, in assessing the justification for unwillingness to seek protection, should have considered, not merely whether the Ukrainian government provided a reasonably effective police force and a reasonably impartial system of justice, but also whether it could guarantee the first respondent's safety to the extent that he need have no fear of further harm, then it was in error. A person living inside or outside his or her country of nationality may have a well-founded fear of harm. The fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify unwillingness to seek their protection.'
43 An issue similar to the present was recently considered in this Court by Selway J in SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545. In concluding his Honour stated at [36]:
'In the absence of any evidence before the Tribunal that the protection available from the South African police and authorities was below international standards or even that it was so inadequate that a person could not be blamed for not relying on them for protection then the Tribunal was correct to conclude that it was not satisfied that South Africa lacks the capacity and willingness to provide reasonably effective protection to its citizens including the applicant.'
44 The Tribunal in this matter found that the Nepalese police were willing to provide the applicant with protection from the Maoists. That was made clear in the 2001 letter. The applicant claimed to be unwilling to avail himself of that protection. As the majority judgment in S152/2003 indicates, Nepal was not required to guarantee the applicant's safety, but to meet the international standards of protection to which their Honours referred.
45 The Tribunal's consideration of the availability of state protection in Nepal is set out in the passage in [6] above. It is contended on behalf of the applicant that the Tribunal failed to address the question required by s 36(2) of the Act as explained in S152/2003.
46 In my view, the Tribunal's approach indicates that it was addressing an alternative or additional reason for concluding that the applicant's fear of harm from the Maoists was not as a fact well-founded. I do not consider its reasons involved looking at the significance of the available state protection in Nepal in the way the majority in S152/2003 directed. The introductory word to that part of its reasons 'moreover' suggests that. So too does the succeeding paragraph (not quoted in [6] above) referring to the 'well-founded fear' test, and distinguishing it from requiring the state to absolutely protect its citizens from serious harm at the hands of non-state agents motivated by a Convention reason. So too does the second paragraph of the quoted passage, and the Tribunal's concluding observations or summary to that part of its reasons where it repeats the finding that the applicant does not have a well-founded fear of persecution for a Convention reason.
47 I have earlier in these reasons reached the view that the Tribunal must have misunderstood or misapplied the law in addressing whether the applicant has a well-founded fear of harm from Maoists for reason of his political opinion. The Tribunal would have applied that (erroneous) approach to its consideration of the issue, at the time it was taking into account the evidence about the availability of state protection in Nepal as well as in its consideration of the claim before that point. I therefore conclude that this stage of the Tribunal's reasons also involves jurisdictional error concerning what amounts to a well-founded fear of harm.
48 I am mindful of the possibility that the Tribunal, whilst making the jurisdictional error I earlier found, did not do so at this point in its reasoning. If it had at this point in its reasons correctly applied the law as to what amounts to a 'well-founded fear', that would involve the Tribunal having adopted different measures of what constitutes a well-founded fear of persecution at different points in its reasoning. There is no reason to think it did that. Indeed, the contrary is the case.
49 The Tribunal referred to the independent evidence and the applicant's evidence about the level of state protection from the threat posed by Maoists. The Tribunal's recitation of independent evidence recorded the Maoist insurgency, its proscription, and following the failure of 'peace talks and ceasefire arrangements', the declaration of a state of emergency on 26 November 2001. It recorded the establishment of a paramilitary Armed Police Force in August 2001 to combat the insurgents, and that the Royal Nepal Army then was also beginning to assume a 'domestic-security role' in response to the insurgency, and that it had been mobilised to fight the Maoist rebels. Anti-terrorism laws had been reinforced. There were reports of excessive exercise of arrest and detention powers against those seen as sympathetic to the Maoists. The sources of the Tribunal's information are contained in the application book. They supported the Tribunal's observations.
50 The material also confirms the Maoist insurrection has been waged 'through torture, killings, bombings, extortion and intimidation against civilians and public officials'. Much of the independent material referred to by the Tribunal focuses on alleged human rights abuses by the Nepalese authorities against Maoists or perceived Maoist sympathisers involved in demonstrations or whilst in custody, and against others suspected of criminal offences. There is also an extensive catalogue of Maoist abuses. Many police have been killed in Maoist attacks. In addition, many Maoist attacks on civilians are recorded, some aimed at political figures and some apparently random. There are a significant number of Maoist abductions of civilians, including apparently political opponents of the 'People's War', including 23 in the latter half of 2001. Maoist violence is described as often targeted at political leaders, local elites, and suspected informers including members of the applicant's political party. In the three month period July to September 2001 (during the ceasefire), there were 22 reported cases of Maoists beating and injuring civilians. Since the insurgency (to the end of 2001), according to the United States Department of State, Country Reports on Human Rights Practices - 2001: Nepal, some 508 police and 340 civilians had been killed, and on the other side some 1414 insurgents had been killed.
51 That picture was generally confirmed by the other sources to which the Tribunal referred. Jane's Intelligence Review, Asia, 2001 October 1, described the insurgents as having:
'now established influence in most of the country's 75 districts, eliminated government functionaries and supporters, disrupted government and foreign-funded development projects and seized control over vast stretches of territory'.
The BBC News, 26 November 2001, referred to Nepal being in serious risk of descending into outright civil war following the end of the ceasefire.
52 The Tribunal referred also to the applicant's evidence and the material he provided. His oral evidence provided no basis for the Tribunal being satisfied that the state protection available to him removed any real chance of him being harmed by the Maoists. The applicant also provided extensive material to the Tribunal with a submission from his migration agent dated 10 October 2002. It was the source of the 2001 letter and the letter of 16 July 2000. The submission referred at some length to the United States Department of State, Country Report referred to above, and to information taken from two web sites about the Maoists in Nepal.
53 That material demonstrates, as the Tribunal found, that Nepal has a range of mechanisms in place to protect its citizens from the threat posed by the Maoist insurgency. It shows those mechanisms are exercised by the Nepalese authorities against Maoists or Maoist sympathisers, sometimes inappropriately. The anti-insurgency measures have been vigorous and extensive. It shows the existence of an independent judicial system, but one to some degree vulnerable to political pressures. The judicial system was not part of the applicant's concerns. He did not fear that he might himself be arrested and be subject to its processes.
54 The Tribunal made the point that the fact that some members of his political party have been murdered or kidnapped by Maoists does not demonstrate that he faces a real chance of persecution by Maoists. But, the Tribunal had before it the 2001 letter as well as the letter of 16 July 2000 which each expressly identified the applicant as a target of the Maoists. For the reasons already given, the Tribunal's factual conclusion must in my judgment expose an unstated but clear error of law, when addressing the applicant's claims, on its part as to what amounts to a well-founded fear of harm.
55 I am mindful also that an erroneous finding of fact on the part of the Tribunal does not amount to jurisdictional error. Nor does it necessarily demonstrate jurisdictional error. In this instance, I have come to the view that in some unstated way the Tribunal's findings reflect an erroneous understanding or application of the law.
56 Section 36(2) of the Act, in the way described above, requires the Tribunal to be satisfied that the applicant has a well-founded fear of persecution for a Convention reason. A fear is well-founded if there is a real chance that the putative refugee will be persecuted if returned to the country of nationality, and a real chance is one which is substantial and not remote or far fetched: Chan per Mason CJ at 389 and per McHugh J at 429. In my judgment, the Tribunal did not apply that test.
57 I have therefore come to the conclusion, as I did in respect of the first of the two steps in the Tribunal's reasoning which the applicant has attacked, that somehow the Tribunal has not asked itself the correct question (assuming, on this issue the proper question to ask was whether, in the light of available state protection, the fear of persecution is well-founded) or has misapplied the law. It is not for the Court on this application to determine whether the information which the Tribunal relied upon showed that, despite the extensive Nepalese response to the Maoist insurgency, there is a real chance that the applicant will be harmed by Maoists as he fears (and as has been threatened).
58 On the basis of the majority judgment in S152/2003, if the Tribunal was satisfied that the applicant faces a real chance of being serious harmed by Maoists in Nepal, so that his fear of such harm is well-founded, its task then was to determine whether Nepal has taken reasonable measures to protect persons in the position of the applicant from that risk of harm. In the present circumstances, the focus would be upon whether the police and other security forces are reasonably effective and meet international standards. The Tribunal did not address that question. Its failure to do so in those terms is no doubt because the High Court decision in S152/2003 had not been delivered at the time of its decision. I consider the failure to address that question constitutes jurisdictional error, as the Tribunal was required by law to do so. As with other issues of fact, it is not now for the Court to itself embark upon any fact finding process.
59 As I think the Tribunal has misapplied the law in the way I have described, I am unable to infer that the Tribunal might have applied a more stringent test as to the adequacy of state protection than that indicated by the majority judgment in S152/2003, and so it must necessarily have been satisfied that Nepal has taken reasonable measures to protect the lives and safety of its citizens, including an appropriate criminal law and the provision of reasonably effective and impartial police forces (and, in this instance, other security forces). The Tribunal did not in fact address that question. It is not for the Court to determine itself on the evidence before the Tribunal what answer the Tribunal might have come to if it had correctly addressed that question.
60 For those reasons, I make an order removing to this Court the decision of the Tribunal of 31 December 2002 for the purpose of quashing it. I order the Tribunal to hear and determine the application of the applicant to the Tribunal made on 12 March 2002 to review the decision of the delegate of the first respondent made on 20 February 2002 according to law. The first respondent should pay the costs of the application to the applicant. There is no order as to the costs of the second and third respondents.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.