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[2001] FCA 1870
Federal Court of Australia
2001-12-21
Dowsett J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant, a citizen of Nepal, arrived in Australia on 26 February 1996 and on 20 March that year, lodged an application for a protection visa. On 22 January 1998 the respondent's delegate refused the application. An application for review was dismissed by the Refugee Review Tribunal (the "Tribunal") on 4 July 2001. This is an application for review of that decision. The grounds in the amended application (exhibit 1) are as follows: The Refugee Review Tribunal made errors of law under section 476(1)(e) and/or section 476(1)(g) of the Migration Act 1958 (Cth) in that it: (a) made certain findings against the applicant without an evidentiary basis; and (b) did not take into account certain relevant considerations in accordance with the High Court decision of MIMA v Yusuf (2001) 180 ALR 1. 2 The applicant's grounds of complaint will be addressed in more detail after a summary of his claims and the Tribunal's findings. 3 The applicant is married and has three teenage sons. His family continues to reside in Nepal. He is well educated by Nepalese standards, having undergone some tertiary education. He speaks, reads and writes Nepali, Hindi and English. From 1981 until 1992 he lived in India. During this period he served as a member of the Indian Army. He was born on 31 March 1961 and so was aged twenty when he went to India and thirty-one when he returned. As he came to Australia in early 1996 it follows that he has resided in Nepal as an adult for quite a short period. 4 In 1979 and 1980 there was widespread political unrest and activity in Nepal aimed at changing the "Panchayat" system of government then applying in Nepal. That system was paternalistic, rather than democratic and focussed on the King. There were no political parties as such. At about this time the applicant commenced his political activities, supporting the Panchayat system against those who urged a multi-party democratic system. This period of unrest was, not infrequently, marked by violence. The applicant was attending an educational institution, taking a course in engineering drafting. He said that he was a member of a student "wing" which was opposed to democracy and perhaps to change generally. He said that he was the secretary of this wing on the engineering campus and that: My main role was to organize and plan how we can make our student wing win and how we can make our particular organization become successful and progressive. And for that, our president also used to go to the main parties and meet the ministers there and get aid from them, help from them too. 5 Although his evidence was somewhat confused, he identified two major incidents which allegedly occurred in or about 1980 which cause him to be concerned for his safety in Nepal at the present time. The first occurred in a village called Ramrajapur whilst the applicant's group and another group supporting democracy were campaigning there. In a confrontation between the two groups, a man called Dal Bahadur Bhujel was stabbed and died. The applicant claimed that he was injured during the incident. He denied responsibility for the death. The subsequent election or referendum was won by those supporting Panchayat. The applicant said that: … when our party won the election by a great majority that's when the problems started because those opposition parties became very angry and agitated and then they said that that person died because of me. They said that I was the cause of the person's death. And then my life became in danger and I was very troubled and so just to save my life I went to India. 6 Initially, nothing was said publicly about his alleged involvement in the death because: … the police were on our side and because my father being the president of that area and nobody could say anything openly at that time. But later on I heard that if I was alone they would finish me off and so I got scared and that was when I decided to move from there to India. 7 Those threatening him did not confront him personally but sent messages to him through old school friends and other people in the village. He said that he became frightened to be on his own. He said that he was singled out for attention following the killing because he was educated and "they thought that it was me". That it was my idea, and that whatever had happened was because of me …". He left India on 22 January 1981, some eight months after the election or referendum which had taken place in May of the previous year. He said that during this period he was hiding in Kathmandu. Although he did not receive threats and was not harmed whilst there, he was nonetheless frightened. In India, he joined the army and served there until 1992. During this time, he advised his father on political matters. His father was the president of the local Panchayat, apparently a region or perhaps a political unit. The applicant would receive information from friends in the area and write to his father advising him how to deal with his opponents. His advice appears to have been designed to assist in suppressing other political views. His wife lived with him in India from 1981 until 1989, and their children were apparently born there. She and the children returned to Nepal in 1989. 8 The second incident arising from the troubles in 1979-1980 involved a fellow student, Pampha Bhusel who was a supporter of the Maoist Community Party. The Tribunal was aware of this woman as a prominent Maoist in Nepal. The applicant said that during a confrontation between her supporters and his she was: … beaten up a little bit. She was injured a bit but not seriously. Actually it was quite serious but she did not die. 9 Stones and bricks had been thrown at her. The applicant said that she was bleeding. He agreed that there was "a whole group of people" who were throwing stones and rocks at one another. This incident had initially involved only a relatively small number of people, but it accelerated into a confrontation involving some hundreds. He was asked why he should have been held responsible for her injury and said: It is just that this discussion started between her and me and it ended up into an argument and then it started and other students came and it all started escalating and it was just bad luck that it turned into a fight like that and then I was accused. It was just for bad luck but nothing else. 10 There may have been unpleasantness on the campus following this incident but apart from that, it was not until some time after he returned from India that the matter again surfaced. In 1995, at or near a place called Muglin, whilst on a bus, he met the president of the Maoist Communist Party, Doctor Babou Rumbat. Five or six other Maoists were present, including Pampha Bhusel. She recognized him and described him as "the person who had really harmed us and insulted us". He said that the group observed: We don't have the power but otherwise if we had the power we could have fixed this guy up. 11 It was put to him that the Maoist Communist Party is an underground terrorist group which would not have maintained an office in Kathmandu as he had asserted. He said that the "office" was more a meeting place and that he was speaking of a time before they went underground. 12 In 1990 another referendum was held concerning the system of government in Nepal, as a result of which a multi-party system came into existence. The applicant claims that at about this time, he joined the National Democratic Party. Following the referendum, people sought revenge for previous suppression by Panchayat supporters. The applicant said that his wife and children were threatened although he was unable to explain why that should have occurred. He said only that people were apparently angry with him for his earlier activities. His wife and children went to live with her parents in Pokhara. They were safe there because her father was the president of that area, or perhaps of the Congress Party in that area. As I understand it, the Congress Party is the successor to groups which had opposed the Panchayat system. The applicant said that he did not want to live in Pokhara. This seems to be partly because he believes that even there, his enemies might find him and partly because he thinks that he would not enjoy the same prestige as he enjoys in his own area. He said that fear for the safety of his wife and children motivated him to leave the Indian Army and to return to Nepal in 1992. 13 In early October 1992, in the course of a local festival, an incident occurred which is also of some importance. At about midnight, or perhaps a little later, somebody knocked at his door. His wife opened it, and a group of people, maybe eight, nine or ten, entered. He said that he was "very nervous and really shocked by all these people coming in". He recognized one as Shiva Lam Sal. The applicant was carrying a dagger and asked them why they had come to his house. They gave no answer, and he charged at them with his dagger. He hit one of them on the right shoulder and head. Some of the people in the group were drunk and some were police. At that time the Congress Party was in government. He said that "the police would support them", presumably those whom he feared. He thought that the group had probably been drinking and had come to harass him. He knew that Shirvan's son was a member of the Congress Party. He knew of no reason for their harassing him other than the assumed hostility of members of the Congress Party towards him. His wife later told him that she had been hit with a steel rod. He said that the group ran away after he attacked them. Curiously, it seems that his house was in a Congress Party area and that his father-in-law had supported him in acquiring it. He said that he was frightened because this was the second incident involving the Congress Party in which he had been involved, the other being the fatal incident in 1980. 14 The applicant went into hiding in Kathmandu and eventually became active in the National Democratic Party. He said that he worked for Doctor Chandra Presad who was a minister. He did typing work for the party, preparing programmes and posting them to different districts. He described his work as being political and administrative. After the Congress Party government fell in 1995 he was able to come out of hiding, but not in his own area or in Kathmandu. Again, his evidence was a little contradictory and confused on this point. He said that whenever the Congress Party has been in power, he has been harassed. Warrants have been issued against him concerning the fatal incident in 1980. He said that this was as a result of "direct orders from the home ministry". In 1995, he decided to leave Nepal because he knew that the Congress Party would form the next government and that there would be no acceptable life for him in those circumstances. He paid for a passport, utilizing the services of a person in the foreign ministry who was known to him and close to Doctor Chandra Presad. He produced to the Tribunal a party membership card and a letter relating to such membership. The Tribunal treated them as suspect. 15 The Tribunal summarized the applicant's version of events substantially as it appears above and then turned to the independent evidence as to conditions in Nepal. Nepal is now a constitutional monarchy with a democratically elected parliament. Although attempts have been made to establish respect for human rights, some serious problems remain. In particular there are credible allegations that police have killed unarmed civilians in the course of operations against armed Maoist insurgents. Detainees are abused and tortured. The government rarely investigates allegations of police brutality. Inefficiency and corruption are chronic in the public service. The parliament is largely divided between the Congress Party, the Communist Party of Nepal (Unified Marxist Leninists) and other minor parties. Since February 1996 the Maoists United People's Front has maintained a "People's War" in mid-western Nepal. There has been widespread violence. In 1999 it was said that perhaps 700 people had been killed, either by insurgents or by the police. Police had responded to the attacks by arresting more than 1600 suspects and killing over 220 terrorists. The situation has been further complicated in the course of this year by the tragedy involving the royal family. 16 The Tribunal noted advice received from the Department of Foreign Affairs and Trade concerning the treatment of former supporters of the Panchayat system. The former prime minister under that system went underground in 1990 but is now treated in a way which is appropriate to a former prime minister. Government authorities take action where there are acts of violence between members of different political parties, but there have been complaints from opposition parties that the authorities do not deal fairly with them. Protection is provided to members of all recognized political parties, but again there are allegations that government members are offered priority. There is no evidence that arrest warrants are issued against persons merely because of their membership of political parties. 17 The Tribunal concluded that the applicant's claims were not credible and that the documentary evidence was not genuine. It accepted that he may have had some low-level political involvement in the past and that he may have been a supporter of the Panchayat system. It did not accept that he had been involved in "the political incidents that he has claimed, nor that he is a significant political player, as he has claimed." In view of the information that even the former prime minister under the Panchayat system is now treated with respect and is safe, the Tribunal was not persuaded that the applicant had a well-founded fear of persecution arising out of his former support of that system. 18 The Tribunal found that the applicant's evidence in relation to the bulk of his claims "was not credible, plausible or consistent." It gave the following reasons: (1) His reliance on "fraudulent" documents. (2) The applicant's account of his involvement in debate with Pampha Bhusel was unbelievable. (3) The equivocal nature of his evidence concerning her injuries. (4) Its rejection of his claim that an arrest warrant had been issued against him concerning the incident in which she was injured. (5) Concerning his assertion that he had not been pursued by the police because he was a supporter of the ruling government and therefore things could be covered up, the Tribunal considered that the police "would not be so easily manipulated by political parties as he has claimed as this is implausible and inconsistent with independent information …". (6) The Tribunal did not accept the applicant's assertion that he had been implicated in the killing of Dal Bahadur Bhujel, primarily because he had suffered no repercussions prior to leaving for India in January 1981. It did not accept that he had been the leader of the campaign in which the incident had occurred. (7) The Tribunal considered that his claim that he was only pursued by the police when parties opposed to his own were in power was "not plausible", this view being based on independent information. The Tribunal also considered that he was only "a low level political player". It did not accept that he had been accused of the crimes as he alleged. (8) The Tribunal did not accept that he had continued to advise his father as to political matters while he was in India. (9) In view of the position of the applicant's father-in-law, the Tribunal found it difficult to accept that he had been targeted by Congress Party members. The Tribunal also found it difficult to believe that he could have married into a powerful Congress Party family if the party was accusing him of murdering one of its members. (10) The Tribunal rejected his claim that he had been working for his party whilst underground in Kathmandu because of the lack of detail. 19 The Tribunal concluded that it was: … not satisfied that the applicant has ever been significantly involved in any political party, is not satisfied that he has ever been targeted for persecution for political reasons and is not satisfied that he will ever be targeted for any type of harm or harassment for a Convention reason should he return to Nepal in the reasonably foreseeable future. 20 The Tribunal then referred to the 1992 home invasion. It was not satisfied that the persons involved had any political intent. As to whether the applicant might be exposed to prosecution for his conduct in attacking one of them, the Tribunal said that it saw no reason to believe that he would be punished in a discriminatory manner. In any event, it seemed unlikely that he would be prosecuted given that nothing had happened to date. 21 The Tribunal noted that Nepal was "in crisis at the moment" following the deaths of ten members of the royal family. It recognized the possibility that political groups such as Maoist insurgents might "take advantage of the turmoil for their own advantage". The Tribunal was not satisfied that the applicant had a political profile in Nepal and thus was not satisfied that he faced any degree of uncertainty or danger. 22 The applicant had also claimed that his brother was locked in a bank toilet by Maoists and subjected to threats of extortion. The applicant said that the attackers had asked his brother about him. The Tribunal did not accept that the applicant had a political profile which would cause him to be of interest to Maoists. The Tribunal also rejected generalized allegations of harassment from Maoists directed at the applicant's wife and children. 23 It is somewhat difficult to identify with precision the applicant's criticisms of the Tribunal's decision. In his written submissions it was initially asserted that there was an error of law pursuant to s 476(1)(e) of the Migration Act 1958 (Cth) or a factual error pursuant to s 476(1)(g). I will return to these provisions at a later stage. The alleged errors appear to have been as follows: - The Tribunal's assertion, that the applicant had claimed that he was the leader of the campaign in which the death of Dal Bahadur Bhujel occurred, was based on a misunderstanding of his claims. - The Tribunal misunderstood the applicant's evidence in holding that he was not involved in the confrontation in which Mr Bhujel was killed. - The Tribunal's view, that the applicant had alleged that an arrest warrant had been issued against him in relation to the incident in which Ms Bhusel was injured, was based on a misunderstanding of his claims. - The Tribunal's finding, that a change of government would not create for the applicant "the spectre of renewed prosecution for Mr Bhujel's murder", could not be supported. - The Tribunal's finding, that as a "low level political player" he was not vulnerable to Maoists reprisals, could not be supported. - The Tribunal's finding, that the applicant's membership card and the letter were "clearly fraudulent", could not be supported. 24 The relevant grounds for review as prescribed by subs 476(1) are as follows: (a)-(d) … (e) that the decision involved an error or law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; (f) … (g) that there was no evidence or other material to justify the making of the decision. 25 Subsection 476(4) provides: The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) … ; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. 26 The applicant's reliance on par 476(1)(e) seems to be simply another way of asserting that particular inferences were not available. Such complaints are clearly within par 476(1)(g) as modified by subs 476(4) rather than par 476(1)(e). In Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744, a Full Court of this Court considered the effect of par 476(1)(g) and subs 476(4), determining that the proper approach is as follows: - A relevant particular fact first must be identified. - Then it is necessary to determine whether there was any evidence before the Tribunal to justify a finding of that fact. If there was such evidence, the ground cannot be made out. - If there was no such evidence, it is next necessary to apply the second limb of par 476(4)(b). If there is no evidence, on review, to show that the fact did not exist, the ground cannot be made out. - If there is evidence, on review, to show that the fact did not exist, it is then necessary to apply the first limb of par 476(4)(b). That requires an analysis of the Tribunal's reasoning to determine whether the decision was based on that fact. 27 In Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332, another Full Court adopted a similar approach, identifying the relevant steps as: - identify a "particular fact" on which the decision being challenged was based; - establish, by admissible evidence, that the particular fact did not exist; and - show that, on the evidence before the decision-maker, it was not open to him or her to find that the particular fact did exist. 28 I turn now to consider the various criticisms directed at the Tribunal's reasons.
Applicant's position as the leader of the campaign 29 The actual finding by the Tribunal was: The applicant was not involved in the confrontation, however, he claims to have been blamed for the death of (Dal Bahadur Bhujel). He claims he was blamed because he was the only educated person from his village and because he was the leader of the campaign. 30 The complaint is that he had not claimed to be the leader of the campaign. It is clear from the transcript of the interview between the applicant and the Tribunal that he had claimed to have been the secretary of the engineering campus of "my wing". He described his duties as "to organize and plan how we can make our student wing win and how we can make our particular organization become successful and progressive." He said that the president "also used to go to the main parties and meet the ministers there and get aid from them, help from them too." There is nothing in this description which would undermine the validity of the description of the applicant as a leader of his particular group although whether he was the leader of a particular campaign may not be quite so clear. He said that he was blamed for the death because he was an educated person. He also said: In those days 1980 … there like I've already said, was hardly anyone educated like I was at that time and so they all knew me, everybody, most of them they knew me, and they thought that it was me. That it was my idea, and that whatever had happened was because of me that their brother or son was killed and they thought that I was behind all that was going on at that time. 31 He said that he was the only person from his village studying at the campus. He also said: Because I was educated I had gone there for my education and people knew that I was modifying the ideas of the elderly people of the village and helping them in doing things in a better way and that is why that I was behind the whole idea and that is why the blame came on me for the dead person. 32 The applicant was clearly indicating that he had been singled out for retribution because his enemies perceived him to have been the leader of the group which had caused the death of Dal Bahadur Bhujel. The only difficulty with the Tribunal's finding is the reference to "the campaign". It is not clear what it meant by the word "campaign" but it clearly included the activities in the village during which the death occurred. The applicant appears to submit that it must have meant something more than that. I am not convinced of that and am unable to see any operative error in the Tribunal's conclusions. The important issue is the perception, on the part of the applicant's enemies, of his role in the killing. They perceived him to be the leader of the group who caused it. Nothing else was relevant. The Tribunal correctly identified the issue and dealt with it in a permissible way.
The applicant's involvement in the confrontation in which Dal Bahadur Bhujel was killed 33 The applicant complains that the Tribunal asserted that he was "not involved in the confrontation". The applicant claimed to have been at the confrontation between the two groups, but not to have been involved in the killing. In my view the Tribunal was merely recognizing the applicant's assertion that he had not been responsible for the death. There is nothing in this criticism. The word "confrontation" has been used in two different ways: firstly to identify the totality of the incident in the village; and secondly to identify the actual causing of the death.
Rejection of the applicant's claim that a change of government "brought the spectre of renewed persecution for Mr Bhujel's murder" 34 This criticism appears to be based upon the fact that some of the country information indicates that it is not uncommon for suspects to be subjected to arbitrary arrest and detention with torture and beatings to extract confessions. There is also some evidence of corruption in the court system. The applicant suggested that he might not get a fair trial if charged with causing the death of Dal Bahadur Bhujel. According to the applicant the prosecution only proceeds when his political enemies are in power. Nonetheless it seems that it is spurred on by the victim's brother who apparently believes that the applicant was responsible for the killing. If that is so, then it is difficult to see that any such prosecution would be a basis for a fear of persecution for a Convention reason. It is motivated by the brother's belief, whether it be reasonable or unreasonable. For the same reason, the prospect of torture and beatings to punish suspects or extract confessions also would not support such a claim if they were motivated by suspicion of guilt rather than differences of political opinion. There is some evidence that the court structure is vulnerable to political pressure, but there is no suggestion in the evidence that such pressure is likely to be used against the applicant. In fact the Tribunal rejected the applicant's evidence that he had ever been accused of any crime. In those circumstances there was no reason for the Tribunal to refer to the evidence as to the way in which he might be treated in the event that he was charged or put on trial.
The Tribunal's finding concerning the applicant's party documents 35 This was purely a factual matter. The Tribunal examined the documents and noted certain irregularities in them. It gave detailed reasons for its refusal to accept them as genuine. The primary problem was that copies of the same photograph appeared on his membership card, which was issued in 1989 and on a letter dated 1998. The fact that the membership card was issued in 1989 also posed problems in that there were no parties until 1990. The documents were in English which is not the official language of Nepal. The applicant claimed that they had been translated for use in this country. The documents were photocopies and shared other features which the Tribunal thought suspicious, given that they had allegedly been created at times which were ten years apart. It is simply impossible to attack this finding.
Allegations concerning Pampha Bhusel 36 The matter has been conducted before me upon the basis that the Tribunal erroneously concluded that the applicant had asserted that a warrant had been issued for his arrest arising out of the incident in 1980 involving Ms Bhusel. The Tribunal in its reasons said that the applicant had made this assertion "in his written submission to DIMA". Counsel for the respondent was unable to point to any such assertion by the applicant, either in his written submissions or in the transcript of the interview. Out of fairness to the Tribunal, I should observe that it is quite possible that the Tribunal was relying upon some aspect which has now been overlooked. It otherwise demonstrated a clear understanding of the matters raised by the applicant. Nonetheless, in view of the position taken by the respondent, I must proceed upon the basis that the Tribunal erred as alleged. The applicant's case is that the decision was based upon this misconception. As the record demonstrates that he did not do so, the applicant had shown that such fact did not exist and that the finding concerning it was not open on the evidence. The only remaining question is whether the Tribunal's decision was based on that misconception as to the applicant's claim. 37 In Al-Miahi, the Full Court observed at par 40: It is sufficient to demonstrate that the relevant fact played a part in the process of reasoning of the Tribunal in the sense that the fact is one without which the Tribunal would not have reached the conclusion that it did. 38 There are two ways in which this error may possibly have infected the proceedings, namely:
Associate: Dated: 21 December 2001 Counsel for the Applicant: Mr C K Stewart
Bista
Minister for Immigration & Multicultural Affairs