Applicant S454/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

Federal Court of Australia|1951-07-28|Before: Gyles J

REASONS FOR JUDGMENT 1 The applicant in this proceeding is a citizen of Indonesia who arrived in Australia as a visitor in February 2000. On 20 March 2000 he applied for a protection visa (Class XA). The basis of his application was a claim to be a 'refugee' within the meaning of Art 1A(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 ('the Refugees Convention') as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ('the Refugees Protocol'). That article applies the term 'refugee' relevantly for present purposes to 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 political 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 …'. 2 The applicant's claim is based upon a fear of being persecuted for reasons of political opinion, he being a citizen of Indonesia from the province of Aceh and being a supporter of Gerakan Aceh Merdeka ('GAM'), the Free Aceh Movement. 3 On 2 May 2000 the applicant gave oral evidence, with the aid of an interpreter, to a delegate of the Minister for Immigration and Multicultural Affairs ('the delegate') who refused his application on 10 May 2000. The applicant applied for review of the delegate's decision by the Refugee Review Tribunal ('the Tribunal') on 19 May 2000. On 11 May 2001 he gave oral evidence before the Tribunal, again with the assistance of an interpreter. On 25 June 2001 the Tribunal affirmed the delegate's decision that the applicant was not a refugee entitled to a protection visa. 4 The Tribunal's decision was handed down on 17 July 2001. The applicant's evidence was that he then instructed his migration agent to pursue a request to the respondent Minister, which was rejected on 21 December 2001. The applicant then took no further action until after his detention by immigration officers on 1 August 2003. On 13 August 2003 he lodged an application for relief in the High Court. That application was subsequently remitted to this Court. On 9 February 2004 Emmett J ordered that the application be dismissed, but stayed that order for 21 days. The present application for review was filed on 3 March 2004. It is two years and eight months out of time and the respondent has filed a notice of objection to competency. 5 The ground of the application is that the Tribunal misinterpreted the meaning of the term 'refugee' in Art 1A(2) of the Refugee Convention, and thereby fell into an error or errors of law constituting jurisdictional error. 6 In its final amended form, the application for review particularised six errors alleged to have been made by the Tribunal. They may be summarised as follows: (a) Having found: (i) that the applicant was a member of GAM who would continue his low level involvement in GAM if he were to return home to Aceh; and (ii) that there was a real chance that at some time in the reasonably foreseeable future he would be detained on suspicion of involvement in GAM, the Tribunal erred by acting on the basis that any harm or other mistreatment that might be caused to the applicant by the Indonesian authorities could not amount to persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion because GAM was an organisation undertaking an armed insurrection against the Indonesian government. (b) (i) The Tribunal wrongly assumed that it did not need to enquire, when assessing the availability of 'real protection from persecution' in parts of Indonesia other than Aceh, as to whether or not the Indonesian government as putative persecuting agent would in fact provide real and meaningful protection from the relevant persecutory conduct. (ii) The Tribunal wrongly assumed that 'real protection from persecution' of the applicant existed if the Tribunal determined: A. that there was no systematic harassment of Acehnese living outside Aceh or that the majority of Acehnese could live outside Aceh; and B. that the applicant had been able to live in Jakarta for five months without coming to the attention of the Indonesian authorities; and C. that any singling out of the applicant or others in Jakarta would be by reason of their being suspected of being involved in an armed insurrection against the Indonesian government or of being involved in criminal acts. (c) The Tribunal erred in not considering whether the Applicant's conduct in Jakarta whereby he chose to meet other GAM members secretly and avoided meeting with other Acehnese on a regular basis was caused by his fear of harm if he acted openly as a member of GAM or as a person holding the political belief that Aceh should be an area free of Indonesian government control; this led the Tribunal into the error of failing properly to consider whether or not there was a real chance of persecution if the applicant were to be returned to Indonesia. (d) The Tribunal erred in failing to make a determination as to whether or not, on the evidence before it, there was conduct by the Indonesian government or its military or police constituting persecution for the purposes of Art 1A(2) of the Convention. (e) The Tribunal made a finding of jurisdictional fact that was illogical, irrational or unreasonable. (f) The Tribunal failed to make a relevant finding as to whether or not there would be a real chance that the applicant, if detained by the Indonesian authorities, would be subjected to mistreatment amounting to persecution for a Convention reason.

Political unrest in Aceh - Background Information relied upon by the Tribunal 7 In its published decision, the Tribunal preceded its specific findings and reasons with a brief summary of what it designated 'Background'. This historical summary was drawn from published sources of independent country information. It drew from a July 1993 Amnesty International publication, Indonesia: 'Shock Therapy' - Restoring Order in Aceh, 1989-1993, that resistance from the province of Aceh to incorporation within what is today the Republic of Indonesia has a long history, dating at least from Dutch colonial times, and has given rise to a series of organised resistance movements, the detailed objectives of which have not been identical over time. From this same source, the Tribunal noted that GAM emerged in the mid-1970s, calling for the establishment of an independent state comprising Aceh and parts of the neighbouring province of North Sumatra, and proclaiming the independence of Aceh in 1976. Its leadership had been crushed by the early 1980s. The movement re-emerged in early 1989, but by 1991 had again been crushed by what were described as 'heavy-handed military operations' though it continued to mount isolated assaults on military and police targets in 1992 and 1993. 8 The Tribunal cited Human Rights Watch, World Report 2000 as evidence that '[c]onflict flared up again in late 1998, sparking the same kind of heavy-handed counter-insurgency operations that had led to human rights abuses eight years earlier'. It cited the same organisation's World Report 2001, together with the US State Department's Country Reports on Human Rights Practices for 2000 as sources from which it noted that the military and police were rarely held accountable for committing extrajudicial killings or using excessive force. It noted that, on 17 May 2000, 24 soldiers and one civilian received substantial sentences for the 1999 massacre of a Muslim teacher and 56 of his followers. The commander who gave the orders, however, went into hiding and was not apprehended. A 'humanitarian pause' agreed between GAM and the Indonesian government in May 2000, and commenced in June of the same year, broke down by September. There continued to be credible reports of the disappearance of dozens of civilians, including in one instance a prominent human rights activist, and in another instance, an Acehnese member of Parliament, both of whom were subsequently found dead with indications of torture. Although the fact was not specifically mentioned by the Tribunal, the original source document from which these disappearances by pro-Aceh activists were noted indicated that these, and a further disappearance in the same year, took place in the city of Medan, which is located, not in Aceh, but in the neighbouring province of North Sumatra. The same source document also stated that, at this time, the Indonesian security forces made little distinction between the armed rebel group GAM and what the report described as a 'strong civil society-based movement for a referendum on Aceh's political status' arising from disaffection with the central government: see Human Rights Watch, World Report 2001 p 202. 9 From the Amnesty International Briefing on the current human rights situation in Indonesia dated 31 January 2001 (ASA21/006/2001) the Tribunal noted that a subsequent moratorium on violence had failed to curb violence and that Amnesty continued to receive 'reports of human rights violations including "sweeping operations" by the security forces to disarm GAM and as reprisals for GAM attacks on members of the security forces'. It noted a report provided by the Xinhua News Agency dated 22 March 2001 that the Indonesian government had officially declared GAM to be a separatist organisation, and that limited military operations would begin in Aceh while negotiations continued.

The applicant's evidence and the Tribunal's findings 10 The following evidence provided by the applicant was accepted, either expressly or tacitly, in the Tribunal's published decision and reasons. The applicant was born in 1966 in a village in the Indonesian province of Aceh, near the northern tip of the island of Sumatra. His father was a farmer who, from the early 1960s, was associated at some level with the Darul Islam (DI) movement, which at that time was mounting armed opposition to the Indonesian central government. In 1977 the applicant's father was imprisoned for approximately two years on the basis of an association with Dr Teungku Hasan di Tiro, who by that time had emerged as the leader of GAM. 11 In either 1985 or 1986 the applicant achieved some level of tertiary education in the provincial capital, Banda Aceh, before returning to the family village. In 1987 he established a grocery shop at a location some 15 km from that village, which he continued to operate until 1999. His own association with GAM commenced in 1990. His involvement was at a relatively low level, and included attending meetings and soliciting donations of financial support. He claims, and the Tribunal accepts, that in 1995 he was detained for five days by the local authorities on suspicion of membership of GAM, and was for a year afterwards required to report weekly to the local police station. As to his more particular claims that he was one of eight suspected GAM members detained on that occasion, and that during his five days of detention he was subjected to severe mistreatment amounting to torture, the Tribunal made no specific finding. 12 The applicant claims, and the Tribunal accepted, that in 1998 he travelled to Singapore and Malaysia on a passport that had been granted to him in that year by the Indonesian Government. 13 The applicant's evidence as to events that befell him during 1999 is important to his claim for protection, and much of it was rejected by the Tribunal. In his oral evidence to the primary-decision maker and before the Tribunal the applicant claimed that in 1999 the activities of GAM had become more open. He also claimed that, in February of that year, some members of the Indonesian army were shot by GAM, and that the army retaliated by burning down a number of shops in the area, including his shop. He further claimed that, as a consequence of the increasing openness of GAM's operations, ten people in each village had been selected by the local district leader of GAM to undertake military training, and that he was one of ten people chosen from his village. In a written statement attached to his original written application for a protection visa, this training was described as 'compulsory' for unmarried men. In the same application, which he subsequently claimed had been filled out by a representative, 'military training' in Aceh between July and September was listed among the details of his past employment. 14 In his appearance before the Tribunal the applicant gave a more qualified account of the degree of compulsion that accompanied his selection for military training. He ultimately spoke in terms that suggested strong moral pressure rather than positive coercion. Before both the primary decision-maker and the Tribunal he also sought to resile from the evidence in his written application that he had in fact undertaken three months of military training. At both interviews he claimed that he had not done the training because in August 1999 the military had come to his village in search of the trainees, had searched his home while he was absent at prayers in the local mosque, and had confiscated all of his papers apart from his 1998 passport which, he said, he had left with a family member in Jakarta for safe-keeping. Warned of the presence of the military by an uncle, he immediately fled the village, and never completed the military training. 15 When the inconsistency between this account of events in August 1999, and the written statement in his original written application, that he had undertaken military training from July until September of that year, was drawn to his attention, the applicant ultimately claimed that the training undertaken had in fact been a form of leadership training, or training in the objectives of the organisation. The Tribunal found this claim implausible in view of the length of the applicant's prior GAM membership. The inconsistency of his evidence on this key factual claim was one of several inconsistencies that led the Tribunal to form an adverse assessment of the applicant's credibility. The Tribunal ultimately did not accept that the applicant or any other unmarried males had been chosen by GAM for military training in July 1999, and did not accept that the applicant had ever undertaken such military training in fact. It did not accept that the military had searched his house, and accordingly did not accept that the applicant had left his village on account of any such search. 16 The applicant's detailed account of his journey to Jakarta was the subject of no specific finding by the Tribunal. He claimed to have arrived in Jakarta at 5 am on 29 September 1999, and to have gone immediately to the house of a close relative whom he described variously as a brother or brother-in-law. Before both the primary decision-maker and the Tribunal he claimed to have been told on arrival that, two days earlier, two plain-clothes security officers had come searching for him at the house in question, and that, on the basis of this information, he went to stay with another relative in the nearby town of Bekasi. There he met other Acehnese, including at least one GAM sympathiser who was able to put him touch with GAM members in Jakarta, with whom he continued to meet in secret prior to his departure for Australia in February 2000. 17 At some time following his arrival in Jakarta the applicant procured, apparently by means of some combination of bribery and forged identity papers, a second Indonesian passport, which the Tribunal noted has been found by an expert examiner in the respondent Minister's department to be an authentic Indonesian passport, and on which his place of birth was falsely stated to be Jakarta. It was this second passport that the applicant used for travel to Australia in February 2000. His explanation for obtaining the second passport, rather than using his 1998 passport, was that he believed he would be refused a visa for travel to Australia if it was known that he was from Aceh. 18 Before the Tribunal the applicant laid much emphasis upon that the fear excited by the news that security officers were searching for him. He claimed during his five months in Jakarta to have feared detection by the authorities, and to have moved repeatedly between Bekasi and other parts of Jakarta to avoid such detection. He claimed that this fear was uppermost in his mind when he decided to seek protection in Australia. His original written application, however, made no mention of any visit by security officers to the home of his brother-in-law, and the Tribunal found the applicant's explanation for the omission unconvincing. It did not accept that the Indonesian authorities were actively searching for the applicant in Jakarta, or that the applicant was, at this time, a person of any interest to the authorities at all. It found that there was no basis for any fears such as the applicant described. 19 In considering an application, such as the present one, for review of the manner in which the Tribunal has applied the statutory test for refugee status to the facts of the applicant's case, the Court is, speaking generally, bound to assume that those facts are as the Tribunal has found them to be. The Tribunal did not find the applicant to be an impressive witness. Indeed, on the basis of what it identified as inconsistencies and implausibilities in his evidence, the Tribunal positively concluded that the applicant was not a witness of truth. Nonetheless, a number of the Tribunal's findings on key factual questions, particularly as they relate to events prior to 1999, are consistent with the applicant's evidence. The Tribunal accepts that the applicant has maintained low-level involvement with GAM, attending meetings and soliciting donations, since 1990. The Tribunal also accepts that the applicant was detained on suspicion of that involvement for five days in 1995 and that he was subjected to subsequent reporting requirements. 20 The Tribunal's reasoning on certain aspects of the merits of the applicant's case implicitly accepts that he did, as he claims, operate a small business from 1987 until 1999. The Tribunal makes no explicit finding as to the truth or otherwise of the applicant's claim that his business premises were burnt down by the army as part of a programme of retaliation for attacks by GAM in February 1999. It does, however, by way of background to its reasons, refer, as I have noted above, to independent country information evidencing increased GAM militancy from late 1998 that evoked a heavy-handed military response. 21 Those of the applicant's factual claims that are positively dismissed by the Tribunal as fabrications all concern events between July 1999 and February 2000. The Tribunal finds that the applicant was not chosen by GAM in July 1999 to undertake military training, and that he did not undertake military training in fact. It finds that neither the army nor anyone else came searching for him in August 1999, and that his reasons for relocating to Jakarta had nothing to do with any such search. It finds that he was not told that security officers were searching for him in Jakarta in September 1999, and that he was at that time a person of no interest to the authorities. 22 Consistently, however, with its findings that the applicant has been involved with GAM since 1990, the Tribunal finds that, if returned to Aceh, he is likely to continue that low-level involvement, and that there is consequently a real chance of his detention by the Indonesian authorities on suspicion of such involvement in the reasonably foreseeable future. In its written decision, the Tribunal gives two reasons for concluding that, in spite of these latter findings, the applicant is not a person to whom Australia owes protection obligations. 23 First, the Tribunal draws a distinction between holding a political opinion in favour of the independence of Aceh, and being involved in an armed insurrection against the Indonesian government. It refers to judicial authority for the making of this distinction, and in particular to the judgment of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 ('Applicant A') where his Honour observed (at 259) that 'governments cannot be expected to tolerate political opinion or conduct that calls for their violent overthrow'. 24 The distinction between persecuting people on the basis of their known or suspected political opinions, and detaining or punishing people who are known or suspected to be aiding and abetting acts of criminal violence in support of that opinion, was one that the Tribunal put squarely to the applicant in the course of interview. The applicant responded by claiming that the Indonesian government is not impartial in its enforcement of the laws that prohibit acts of violence; that it brings to trial GAM members, but not members of the armed forces who carry out acts of violence against the people of Aceh. He also claimed that the Indonesian government sometimes imprisons people suspected of involvement in GAM without due process. 25 The Tribunal put to the applicant that, on his own evidence, those Acehnese persons who are arrested by the Indonesian authorities are singled out for arrest, not because they are suspected of supporting Acehnese independence, but because they are suspected of involvement in an organisation that is mounting armed insurrection against the Indonesian government or of involvement in other criminal acts. That this point was not answered to the Tribunal's satisfaction is demonstrated by its conclusion as follows: 'I do not accept on the evidence before me that, if the Applicant were to be arrested on suspicion of involvement in GAM's armed insurrection, he would be being singled out by reason of his political opinion (real or imputed) nor that he would be treated differently, for a Convention reason, from other persons suspected of involvement in an armed insurrection against the Government.' 26 A second reason given by the Tribunal for deciding that the applicant was not a person to whom Australia owes protection obligations, was the Tribunal's view that it would be reasonable in all of the circumstances for the applicant to relocate to Jakarta if he did not feel safe in Aceh. In this aspect of its reasoning, the Tribunal relied upon the decision in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 ('Randhawa'). In that case, the Full Court of this Court held that the reference in the Refugees Convention to the protection of an applicant's country of nationality requires the relevant decision-maker to ask, not whether protection is available in any particular region of the country of nationality, but rather whether real protection can be provided by that country in any location to which it would be reasonable, in all of the circumstances, to expect an applicant to relocate. The Tribunal referred to country information provided by the Department of Foreign Affairs and Trade, indicating that there is no evidence of any systematic harassment of Acehnese living in Indonesia outside the province of Aceh. Given that the evidence, as found by the Tribunal, was that the applicant had lived in Jakarta for some five months, that he had friends and relatives there, and that he had tertiary education and twelve years' experience running a small business, the Tribunal concluded that it would be reasonable in all the circumstances for him to locate to Jakarta if he did not feel safe in Aceh. 27 In respect of the applicant's suggestion that some Acehnese were being detained by the authorities in Jakarta on suspicion of involvement in GAM, the Tribunal concluded as follows: '… I do not consider that [such persons] are being singled out for one of the Convention reasons but by reason of their being suspected of being involved in an armed insurrection against the Indonesian Government or of being involved in criminal acts. I do not accept, therefore, that the Applicant would have a well-founded fear of being persecuted for a Convention reason if he were to relocate to Jakarta.'

The Applicant's submissions 28 Counsel for the applicant summarised the case for review as being 'in essence', the following: 'a. The Tribunal failed to understand that, when assessing whether or not a fear of persecution is well-founded, the fact that it is the State or an agent of the State that is the putative persecutor means that the notion of "internal protection" is likely to illusory and principles applying to circumstances where a non-State agent is the putative persecutor cannot be applied or cannot be applied without careful consideration of whether or not real and meaningful protection by the State or its agents is available to the applicant. b. The Tribunal failed to understand that being involved in an armed insurrection may involve a political opinion and to consider whether there was a real chance that mistreatment of the applicant amounting to persecution while in detention would be for that or some other Convention reason; c. The Tribunal failed to consider whether the applicant might suffer serious harm if the State or its agents discovered he was a member of GAM; d. The Tribunal failed to consider whether the need for the applicant to be secretive about his political activities in Jakarta was to avoid the threat of serious harm and constituted persecution; e. The Tribunal failed to understand it was required, in the circumstances, to isolate each claim made by the applicant as the basis for a Convention ground, to assess whether or not there was conduct by the State or its agents sufficient to constitute persecution and then to assess any connexion between persecutory conduct and the applicant's claims. f. Each of the above amounts to an error in law and jurisdictional error.' 29 Having stated her client's case in this summary form, counsel for the applicant developed her submissions from a starting proposition that in order to prove refugee status under Art 1A(2) the applicant was required to satisfy the Tribunal: first that he was outside the country his country of nationality owing to a well founded fear of persecution; and secondly that he was unable to avail himself 'of the protection of' his country of nationality, or unwilling to do so for reason of the well-founded fear of persecution for a Convention reason. 30 For the purpose of this test, counsel submitted that Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 ('Khawar') at [21] and [62] supports the view that the express reference to 'protection' in the Convention definition of a refugee is a reference to external protection such as the diplomatic or consular protection that is available to a person who is outside the relevant country of nationality. On that basis, and citing the authority of Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 205 ALR 487; (2004) 78 ALJR 678 ('S152') at [21] she submitted that the availability of 'protection' in any broader sense e.g. protection afforded by the laws of the country of nationality within that country's borders, is properly assessed in the course of the inquiry whether what is feared amounts to persecution, and whether the fear is well-founded. She submitted, again citing the authority of Khawar (at [23]) and S152 (at [22]) that where the perpetrator of any relevant persecution is the State itself, fear of such persecution will be objectively well-founded. 31 Counsel submitted that insofar as the Full Court in Randhawa proceeded on the assumption that the reference to 'protection' in Art 1A(2) includes internal protection, it must, in the light of Khawar and S152, be regarded as having been in error. On counsel's submission, Randhawa should be regarded as authority for the relevance of re-location within the country of nationality as a means of securing protection from persecution at the hands of non-State agents, or authorities of a localised nature. The 'real protection' referred to in Randhawa should not, on this submission, be understood as encompassing a likelihood that an applicant may in some particular location within the country of nationality be better able to avoid detection by a persecuting State or its agents by engaging in persecuted conduct in a clandestine or 'discreet' manner. Such 'protection' is at best unpredictable and at worst illusory; and its availability does not go to what, on this submission, is the real point, namely, that the relevant fear of persecution, being a fear of the State itself, is objectively well-founded. On this view, the cases to which the Randhawa principle may properly be applied do not include this case, and the Tribunal accordingly had a duty to make positive findings as to the seriousness of the harm that would befall the applicant if he were to be discovered and detained in any part of his country of nationality, including Jakarta. 32 The Tribunal's duty to make that finding cannot, on counsel's submission, be obviated by a finding that if the applicant were detained, his detention would necessarily be on suspicion of involvement in an armed insurrection. Counsel submits that it simply does not follow from the fact that a person has been detained and persecuted on suspicion of involvement in armed insurrection, that that person has not been persecuted on account of the social group to which he belongs, or the political opinion to which he subscribes. An opinion that a national government will not relinquish control of a region that desires independence unless violently overthrown is a political opinion. A person who holds or acts upon that opinion may fear reprisals 'for reasons of' doing so. And those reprisals may amount, on the evidence, to persecution. To determine whether they do or not, it is, counsel submits, necessary to ask whether such reprisals, if any, as are reasonably anticipated can be characterised as 'appropriate and adapted to achieving some legitimate object of the country of the refugee': Applicant A per McHugh J at 258; Kumaralingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1624; Applicant A101/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 556. On this submission the Tribunal had a duty to answer that question by reference to all of the evidence before it and, to the extent, if any, that it arrived at a negative answer, to isolate each Convention reason in turn and determine whether the offending reprisals were 'for reasons of' any one or more of those reasons. 33 It follows, counsel says, from all of this, that, insofar as the Tribunal failed to make a positive finding whether or not the conduct of the Indonesian military or police as set out in the whole body of evidence before the Tribunal amounted to persecution - and, in the event of an affirmative finding, to make further findings concerning the reasons for the conduct in question - it made an error of law. To the extent that the Tribunal assumed that a finding that the applicant, if detained, would be detained only on suspicion of involvement in an armed insurrection relieved it of any duty to make that positive finding, it has, on counsel's submission, misunderstood the comments, to which it makes express reference in its reasons, of McHugh J in Applicant A. Those comments, she submits, affirm the uncontroversial proposition that measures taken by a government that are appropriate and adapted to the prevention of its own violent overthrow by persons who hold an opinion in favour of that outcome do not necessarily constitute persecution. They are not authority for the proposition that the opinion or conduct against which such measures are directed are necessarily not Convention grounds. 34 Counsel submits that it is not impossible that the Tribunal would, if it had asked itself the right questions, have found that all persons detained by the Indonesian government on suspicion of involvement in armed insurrection are also detained for a Convention reason. The point was expressly taken by counsel for the applicant in the course of her oral submissions: '… there is a real issue, a live issue as to whether treatment in detention is for the reason of being involved in an armed insurrection against the Indonesian Government or simply because you hold a political opinion that is for a separatist area.' 35 Nor, counsel submits, is it impossible that the Tribunal would have found that all persons detained are, or are likely to be, subjected in the course of detention, and for a Convention reason, to mistreatment that is not appropriate and adapted to that government's legitimate objective of preserving itself from violent overthrow. In support of her written submission that such a finding by the Tribunal was possible, counsel pointed to evidence that was before the Tribunal, and to which I have referred in paragraph [8] above, that the Indonesian security forces made little distinction between pro-independence activists and GAM members. The point was further pursued with reference to the independent country information in oral submissions. 36 On the question of delay, counsel for the applicant submits that if the applicant's case establishes a jurisdictional error, as it must if it is to succeed, there is a presumption that the discretion to grant relief should be exercised in his favour: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400. She submits that this presumption is reinforced by considerations such as the potential seriousness of the consequences for the applicant if he is returned to Indonesia, and the public interest in Australia honouring its obligations under the Refugees Convention. Counsel says these factors outweigh any competing public interest in the finality of administrative decision making. She also seeks to explain the applicant's delay in bringing proceedings by reference to his lack of adequate legal advice and his ignorance of the sources of assistance available to him.

The Respondent's submissions 37 The solicitor for the respondent submits that the Tribunal's reasons, fairly and properly examined, disclose no error in the application of the Convention definition of 'refugee', and that the applicant's submissions are, in truth, an attempt to impeach the Tribunal's factual findings in a manner that is impermissible in proceedings for judicial review. 38 For the respondent it is submitted that the Tribunal addressed itself to the correct question, which was whether the applicant would be subjected to differential treatment for a Convention reason, or alternatively, would be the subject of the imposition of a law of general application. Counsel cited as authority for this submission the comments of McHugh J in Applicant A and characterised the relevant general law in this case as 'the law against armed insurrection'. This submission was made in terms that were qualified by a recognition that this question was the correct one for the Tribunal to ask on the basis of certain factual evidence that the submission described as having been noted by the Tribunal, namely that 'people were not singled out by the authorities because of their association with GAM or that there was differential treatment administered by the authorities on people who were GAM members'. 39 As to the Tribunal's finding that it was reasonable in all the circumstances to require the applicant to relocate to Jakarta, the submission for the respondent is that the Tribunal's conclusions in this regard were a direct application of the decision in Randhawa to factual findings that are supported by the relevant country information and by those parts of the applicant's evidence that the Tribunal was prepared to accept. 40 It is further submitted for the respondent that the Tribunal was under no necessity to make any factual findings concerning the applicant's claims that he conducted himself in a clandestine manner while in Jakarta. The Tribunal having made a factual finding that GAM members were not singled out for special treatment by the authorities, except insofar as they might be suspected of breaches of the criminal law as a consequence of their support for an armed insurrection, the question of the applicant's motives became, it is submitted, irrelevant. 41 In oral submissions, the solicitor for the respondent identified as a common element in the Tribunal's findings in relation both to Aceh and Jakarta, a conclusion that the applicant may avoid persecution if he gives up his involvement in GAM. 42 The solicitor for the respondent submits that the length of the delay in bringing this proceeding, which has not been satisfactorily explained, should lead to refusal of relief, the grant of which is discretionary.

Decision 43 This case involves the vexed question as to the circumstances under which the members or followers of an organisation involved in armed insurrection in support of part of a State being given independence is persecution for a Convention reason, in particular for the reason of political opinion. 44 The explanation of persecution by McHugh J in Applicant A at 258-259 is generally accepted as illuminating in cases such as the present: 'Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution (Yang v Carroll (1994) 852 F Supp 460 at 467). Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race (cf Korematsu v United States (1944) 323 US 214. But the sanction must be appropriately designed to achieve some legitimate end of government policy. Thus, while detention might be justified as long as the safety of the country was in danger, lesser forms of treatment directed to members of that race during the period of hostilities might nevertheless constitute persecution. Denial of access to food, clothing and medical supplies, for example, would constitute persecution in most cases. It need hardly be said that a law or its purported enforcement will be persecutory if its real object is not the protection of the State but the oppression of the members of a race, religion, nationality or particular social group or the holders of particular political opinions.). … In cases concerned with political opinion and the membership of particular social groups, the issue of persecution may often be difficult to resolve when the sanctions arise from the proper application of enacted laws. Punishment for expressing ordinary political opinions or being a member of a political association or trade union is prima facie persecution for a Convention reason. Nevertheless, governments cannot be expected to tolerate political opinion or conduct that calls for their violent overthrow. Punishment for expressing such opinions is unlikely to amount to persecution. Nevertheless, even in these cases, punishment of the holders of the opinions may amount to persecution. It will certainly do so when the government in question is so repressive that, by the standards of the civilised world, it has so little legitimacy that its overthrow even by violent means is justified. One who fled from the regime of Hitler or Pol Pot could not be denied the status of refugee even if his or her only claim to that status relied on a fear of persecution for advocating the violent overthrow of that regime.' 45 Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 per Gleeson CJ, Gaudron, Gummow and Hayne JJ discussed persecution (in another context) at [24]-[29]. Their Honours said (at [29]): 'Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilised world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.' 46 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 concerned the ad hoc, random and forcible recruitment of young able-bodied Afghan males to serve in military operations by the Taliban when it was in control of Afghanistan. The principal question was whether young, able-bodied Afghan men comprised a particular social group. If so, the question of persecution arose. The High Court considered the issue of enforcement of a law of general application in that context. Gleeson CJ, Gummow and Kirby JJ dealt with the issue at [41]-[49], including: 'In the present appeal, the minister submitted that the facts here also reveal "a law of general application" and therefore the conclusion in Israelian must follow. This is not the case. There was no evidence before the tribunal that the actions of the Taliban amounted to a law of general application. The policy of conscription was ad hoc and random. Further, what was said in Israelian does not establish a rule that the implementation of laws of general application can never amount to persecution. It could scarcely be so given the history of the Nuremberg Laws against the Jews enacted by Nazi Germany which preceded, and help to explain, the purposes of the Refugees Convention. Rather, the court majority determined that, on the facts of that case, it had been open to the tribunal to conclude that the implementation by Armenia of its laws of general application was not capable of resulting in discriminatory treatment. A law of general application is capable of being implemented or enforced in a discriminatory manner. The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A. His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is "appropriate and adapted to achieving some legitimate object of the country [concerned]" ((1997) 190 CLR 225 at 258; 142 ALR 331 at 354). These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen ((2000) 201 CLR 293 at 303 [28]; 170 ALR 553 at 560; 58 ALD 321 at 328). As a matter of law to be applied in Australia, they are to be taken as settled. This is what underlay the court's decision in Israelian. Namely, that enforcement of the law of general application in that particular case was appropriate and adapted to achieving a legitimate national objective.' 47 After further reference to Applicant A and Chen and some other considerations, their Honours said (at [47]-[49]): 'Although there was no material before the tribunal indicating for exactly what purpose young men were being recruited, oral argument before this court appeared to proceed on the basis that the new recruits were being sent to serve on the front-line of the Taliban's military operations. In other words, it could be said that the objective of the conscription policy was to protect the nation. Generally speaking, this is an entirely legitimate national objective (See, for example, Pt IV of the Defence Act 1903 (Cth), which is headed "Liability to serve in the defence force in time of war".). However, in this case the position of the Taliban as an authority which was, according to the tribunal, considered by international standards a ruthless and despotic political body founded on extremist religious tenets must affect the legitimacy of that object. Furthermore, assuming for a moment that the object was a legitimate national objective, it appears that the conduct of the Taliban could not have been considered appropriate and adapted, in the sense of proportionate in the means used to achieve that objective. The policy of conscription described by the evidence was implemented in a manner that was random and arbitrary. According to the tribunal, this would not be condoned internationally (The Taliban's policy did not allow for conscientious objectors. The tribunal appeared to accept the appellant's claims that he was a pacifist and that he was not committed to the aims and objectives of the Taliban.). These conclusions by the tribunal indicate that, had it by application of the correct principles respecting "perception" reached the stage of considering whether no more was involved than a law of general application, the tribunal correctly would have concluded that the Taliban was not pursuing a "legitimate national objective" spoken of in Chen.' 48 McHugh J said (at [83]): 'This case is different from Israelian. Given the facts found by the tribunal in the present case, the finding was open that the conscription methods of the Taliban constituted persecution. On the tribunal's findings, the Taliban had an ad hoc practice of recruitment, which practice included press-ganging new recruits in a manner that would not be "condoned internationally" (RRT Reference: N00/35095 (unreported, Refugee Review Tribunal, 4 January 2001, Fordham TM) at [49].). Accordingly, if the tribunal had decided the particular social group issue in favour of the appellant, it was also open to the tribunal to find that the appellant had a well-founded fear of persecution for a Convention reason. Given the tribunal's findings about the nature of the Taliban's recruitment practices, it was open to the tribunal to find that the Taliban was not applying a law of general application, but instead was forcibly apprehending members of the particular social group in an ad hoc manner that constituted persecution by the standards of civilised society.' 49 Callinan J said (at [101]-[103]): 'Conscription into a military force or a militia inevitably carries the risk of harm, indeed of death itself. The existence of that risk does not however conclude the issue of persecution. Between 1960 and 1970 able-bodied young men in Australia qualified by age to be balloted into national military service and of undertaking it in war in Vietnam, were a particular social group and were so regarded by many in this country. But it is another question whether they were, in consequence, a particular social group having a well-founded fear of persecution. The relevant question is whether a liability to give military service to or for the government, de facto or de jure, of a country with all the consequential risks that such service carries, is persecution for reason of membership of a particular social group. In my opinion it is not. It was not suggested that the appellant's opposition to service with the Taliban was based on any "ethical, moral or political grounds." (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 342 [54]; 180 ALR 1 at 14; 62 ALD 225 at 237-8 per Gaudron J, CLR 354 [94]; ALR 24; ALD 247 per McHugh, Gummow and Hayne JJ.) There was no evidence that the appellant, either alone or as a member of a group sharing political, moral, ethical or religious convictions, was singled out for military service. The Taliban was the party in power. The fact that they may have come to power in an undemocratic way does not alter the fundamental character of the conscription which they sought to impose in an indiscriminate way. Previous authority (Mijoljevic v Minister for Immigration and Multicultural Affairs [1999] FCA 834; BC9903470 at [23] per Branson J: "In my view, the conclusion of the Tribunal that the applicant's pacifist views did not provide a basis upon which it could be satisfied that he was a person to whom Australia owes protection obligations under the Refugees Convention was open to it on the evidence and material before it. Further, in my view, the Tribunal's reasons for decision do not suggest that the Tribunal's conclusion in this regard involved any error of law. This Court has on a number of occasions recognised that the enforcement of laws providing for compulsory military service, and for the punishment of those who avoid such service, will not ordinarily provide a basis for a claim of persecution within the meaning of the Refugees Convention." [Footnotes omitted] fairly consistently holds that liability for conscription is not persecution for a Convention reason and with that holding I generally agree.' 50 I have also had regard to the application of Applicant A in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28. I have reservations as to aspects of that decision in the statutory setting in which it occurred, but those reservations are not relevant to the present proceeding. 51 The decision of the House of Lords in R (Sivakumar) v Secretary of State for the Home Department [2003] 1 WLR 840 ('Sivakumar') - one in a long line of cases dealing with the Tamil Tigers - draws attention to an issue not explored in detail in the authorities to which I have referred, well encapsulated in the following passages from the speech of Lord Hutton (at [30]): 'Excessive and arbitrary punishment does not in itself constitute persecution for one of the reasons specified in article 1A of the Geneva Convention. But the fact of excessive and arbitrary punishment may, in the circumstances of a particular case, give rise to the factual inference that a reason for that punishment was the race or membership of a particular social group or political opinion of the victim.' and from the speech of Lord Rodger (at [43]): 'I have difficulty, however, in seeing why - in a case such as the present - the use of extreme torture should in itself be a factor pointing to the conclusion that the applicant was, or would be, ill-treated for a Convention reason rather than as part of the security forces' anti-terrorist operations. Torture can be used for any number of wicked reasons. When the Gestapo captured British agents dropped into Occupied France during the Second World War, they used extreme methods of torture to try to extract information from the agents about Resistance networks or to try to turn the agents so as to infiltrate those networks. But the Gestapo did this as part of their fight against the Resistance whom the agents were sent to assist. The Gestapo did not torture the agents because they were British or because they belonged to a particular social group or because of their political opposition to the German occupation. Similarly, if members of the security forces in Sri Lanka were barbaric enough to torture their Tamil captives, I see no reason why the correct view should not be that, in some cases at least, they did so as part, albeit an illegitimate part, of their fight against those suspected of involvement in the Tamil Tigers' terrorist attacks.' 52 The issue is whether serious ill-treatment of a person because he or she is a member or follower of a violent separatist movement, which is not shown to be in accordance with local law, and which occurs at the hands of the authorities is per se persecution for a Convention reason, or whether it will only be potentially persecutory if shown not to be directed to preventing armed insurrection. If the latter, then another inquiry is required. The issue is of some importance in this case. 53 It is best to focus upon the position if the applicant were to return to Jakarta. In my opinion the finding by the Tribunal concerning relocation is an orthodox factual application of Randhawa in the sense that relocation to Jakarta is feasible and reasonable in the circumstances of this case. Whether it would avoid persecution is another question. I do not agree that the decisions of the High Court in Khawar or S152 affect the operation of Randhawa in this case as, in my opinion, that decision is applicable to persecution whatever its source. 54 I do not accept that submission on behalf of the Minister that the problem would be solved if the applicant relocated to Jakarta and ceased involvement with and support for GAM. It may be that, notwithstanding S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 180; 203 ALR 112, cessation of unlawful activity in support of a group involved in armed insurrection may be a proper assumption to make about conduct upon return to Jakarta. However, the Tribunal did not make the decision on that basis and so necessary factual findings are not made. It is not clear what conduct would be unlawful on the part of the applicant. It is not clear what effect past involvement would have continued to have. 55 The applicant claimed that people suspected of involvement in GAM were imprisoned without due process and were detained and interrogated by the security forces in Jakarta. The Tribunal did not reject those claims, but proceeded to decision on the hypothesis that they might be correct. There is no finding by the Tribunal that any such imprisonment, detention or interrogation would be in accordance with a law of general application of Indonesia. The claims of the applicant are consistent with the United States State Department Country Reports on Human Rights Practices for 2000 in relation to Indonesia which was referred to by the Tribunal in its reasons. Importantly, the same source indicated the potential for serious mistreatment whilst in detention. 56 The Tribunal's approach seems to have been along the lines of that adopted by the House of Lords in Sivakumar. The applicant's membership (albeit low level) of GAM meant that imprisonment, detention and interrogation by the authorities, even if strictly unlawful and even if involving mistreatment, was no indicator of persecution for a Convention reason. Such conduct is explicable in defence of the State. 57 That view of the Convention is open, and has a good deal in its favour. However, in my opinion, it is not consistent with the view taken in High Court authorities to which I have referred. According to that view of the Convention, unlawful mistreatment in a case such as the present would be persecution by reason of political opinion as it would be occasioned by the underlying political opinion and would not be appropriate and adapted to the achievement of a legitimate objective of the State. 58 The Tribunal therefore failed to consider essential questions - namely, whether there was a real chance that the applicant would suffer unlawful imprisonment or detention if returned to Jakarta and, if so, whether he was likely to suffer additional mistreatment. Answers to either or both of those questions were needed as part of carrying out the statutory task. Thus, according to current theory, there was jurisdictional error constituted by a constructive failure to exercise jurisdiction. In turn, this means that the statutory time limit and the privative provision may be ignored. 59 The only barrier to relief is discretion. No point is taken about the present proceeding being an abuse of process by reason of the earlier High Court proceeding. The relevant delay is therefore that for the period up to the commencement of that proceeding. Although that delay is significant and without any real explanation, I am not satisfied that relief should be withheld in this case. 60 For the sake of completeness I should add that this case does not call for consideration of Article 1F of the Convention. 61 The application succeeds. The decision of the Tribunal will be set aside. The matter will be remitted to the Tribunal to be determined according to law. The respondent is to pay the costs of the applicant. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate: Dated: 1 September 2004 Counsel for the Applicant: AM Seward

Solicitor for the Respondent: A Markus of Australian Government Solicitor

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