Minister for Immigration and Multicultural and Indigenous Affairs v Applicant M1031/03

REASONS FOR JUDGMENT 1 This is an appeal from an order made by a Federal Magistrate setting aside a decision of the Refugee Review Tribunal (the RRT) and remitting the matter to the RRT for further hearing. 2 The first respondent is a 48 year old citizen of Cambodia who first arrived in Australia on 3 March 1994 for the purpose of undertaking tertiary studies. He returned to Cambodia on 28 June 1994. Later, he was granted an Australian government scholarship and he returned to Australia on 12 January 1996. His wife and children entered Australia in May 1996. 3 On 24 September 1997 the first respondent lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (the Act). He included in his application his wife and their three children. 4 On 3 June 1998 a delegate of the Minister for Immigration and Ethnic Affairs refused to grant a protection visa. The first respondent was notified of that decision in a letter dated 9 June 1998. 5 On 2 July 1998 the first respondent applied for a review of that decision by the RRT. 6 On 29 September 2000 the RRT conducted a hearing at which the respondents were represented by a migration agent. The first respondent and his wife gave oral evidence. 7 On 24 November 2000 the RRT affirmed the decision of the Minister's delegate to refuse to grant the first respondent a protection visa. The first respondent was advised of that decision on 15 December 2000. 8 Sometime in about May 2001 the first respondent joined in a class action in respect of his protection visa. On 30 May 2003 he instituted proceedings in the High Court of Australia seeking a review of the decision of the RRT and the issue of the writs of certiorari, mandamus and prohibition. 9 Those proceedings were subsequently remitted to the Federal Court which, in turn, remitted the proceedings to the Federal Magistrates Court. 10 The first respondent was born in Takeo Province, Cambodia on 5 June 1956. He remained there with his family until 1970 when Lon Nol staged a coup. The family fled to Phnom Penh where his father obtained a job as a primary school teacher. The family, including the first respondent, remained in Phnom Penh until 1975. 11 With the advent of the Khmer Rouge was Phnom Penh emptied, and the first respondent and his family returned to Takeo Province where they remained until 1977. 12 He was removed by Pol Pot to Kompong Speu where he was forced to work in the fields and in the forests. He was separated from his family. During this time one of his sisters died. On 20 August 1978 he married his wife. They remained in Kompong Speu until 1979 when the Vietnamese invaded Cambodia and the Khmer Rouge fled. 13 The first respondent went to live in Srok Koh Andeth where he obtained employment; first, as a primary school teacher and, later, as a secondary school teacher. 14 In 1984 he was selected as a candidate to study mathematics at the Phnom Penh University from which he graduated in 1988. He taught mathematics within the University from 1986 to 1996. 15 In 1994 he was selected to study at Latrobe University in Australia and was granted a visa for that purpose. He first travelled to Australia in March 1994 and returned to Cambodia in June 2004. 16 The National United Front for an Independent, Neutral, Peaceful and Cooperative Cambodia (FUNCINPEC) is a political party which supports the Royalist government and was led by Prince Ranariddh. The Cambodian People's Party (CPP) was the party in government prior to 1993 and was led by Hun Sen. 17 The first respondent's case was that prior to 1993 he did not have any confidence in the Cambodian government (CPP) which he believed was supported by Vietnam. He believed that there was corruption at a high level. 18 On 31 March 1993 he joined FUNCINPEC. He involved himself in the elections in 1993. He took part in the campaign in Takeo. 19 He said that in the elections of May 1993 members of FUNCINPEC were killed and others were beaten and intimidated by members of the CPP. 20 FUNCINPEC won the elections in 1993 but the CPP refused to accept the result. Accordingly, after those elections the country had two Prime Ministers; one supplied by each of the two parties. Prince Ranariddh was the first Prime Minister and Hun Sen the second Prime Minister. 21 On 5-6 July 1997 Hun Sen staged a coup removing Prince Ranariddh from the office of the First Prime Minister. FUNCINPEC officials were tortured and executed at the instigation of the CPP. His wife's sister, who had been deeply involved in issues concerning women's human rights and who was also a member of FUNCINPEC fled to Thailand in the wake of the coup. The first respondent was concerned that his name was on the CPP's blacklist. 22 The first respondent was never an office holder in FUNCINPEC but claimed to have remained active until he left Cambodia for Australia in 1996. 23 The first respondent's case before the RRT was that he would be arrested if he returned to Cambodia because he was a member of FUNCINPEC. He said that if he were arrested he could be killed without anyone knowing until it was too late. He said that Hun Sen would continue to try and eliminate all democratic parties. He said that because he was a professional and an educated person he could be a target. 24 Because this appeal turns on the conduct of the proceedings before the RRT and, in particular, the matters put to the applicant in that hearing, it is necessary to refer to some of his evidence. 25 The applicant gave reasons for why he joined FUNCINPEC. He said, as I have already mentioned, that he involved himself in the election campaign in 1993. He said that he came to Australia in 1994 and returned after three months. He said that he did not have any fears for himself at the time he returned. The Tribunal questioned him about any problems that he had between 1994 and his coming to Australia for the second time in 1996: 'Q: In 1996 you've come back, all right. So between 1994 and 1996, any serious problems for you in Cambodia? A: Nothing had happened at that time, because as I told you, FUNCINPEC still got power. But it's still very worrying because CPP was trying to eliminate the opposition party, so I was scared, you know. They are trying to eliminate, they are trying to kill the opposition party. Q: Now - I mean, yes, clearly the events of July 97 have worried you, but since that time of course, they've gone back into coalition? A: Since that time? Yes, because, you know in 1997, Hun Sen killed many, many FUNCINPEC members and even if they come back to coalition - I still have my name, it's still recognised, still in the blacklist by CPP. If I go back, you know, FUNCINPEC cannot stand up for me, because communists, they never forget. Q: Now you were active in 93. Were you active in FUNCINPEC from 1994 to 1996? A: Yes, I still a member but after - in 1993 we got election but in 1984 we just a member, and do something. Q: Did you ever hold office? Were you ever an office bearer in the party? Like, were you the secretary of anything, or treasurer? A: No. Q: No, not an office holder. We all know about the July 1997 coup. Since that time though - well, 98 - you put in a number if [sic] submissions which reports about 1998 and the election violence. Most of those, looking outside looking in on Cambodia say, "Well, gee, it's got a whole lot better since then." Let me tell you why. Our own department of foreign affairs says that there's no risk now to people who are ordinary FUNCINPEC members. Ranariddh and Hun Sen still share offices really. There are FUNCINPEC - I think 21 members of parliament or is it 31 - I forget my numbers - are FUNCINPEC members. A: 31.' 26 The RRT returned to the topic of the applicant's involvement in FUNCINPEC: 'Q: You were an ordinary FUNCINPEC member. You don't live in the north-east, you live in Phnom Penh. There's no evidence that FUNCINPEC members are being killed just for being FUNCINPEC members in Phnom Penh, is there? A: Nothing happened now but, it's still dangerous for a FUNCINPEC member because even if a coalition or opposition party is still, you know, living in fear, that is on 1 September, another (indistinct) some of the party came to Australia, and talk at the (indistinct) restaurant and they say that the political killing is still continuing until this day. And also they (indistinct) communist is opposition party member. Q: Is there anything political about you, except that you've been a member of FUNCINPEC? Have you taken part in anything political? I mean, I accept that in 1993 you joined the party and you took part in some election campaigning. A lot of things have happened since then. So is there anything you've done since then that's political? A: Yes. I have joined - when I cam here I have joined. I also have come to the meetings when FUNCINPEC - for the meeting in here. So they also called me - a letter - to call me to come to the meeting and things like that. Q: Who was running that? A: (indistinct) is the FUNCINPEC president of the party. Q: Here in Victoria? A: Victoria, yes. I also come to hear when the people from opposition party (indistinct) came here - yes, I joined to listen for what happened in Cambodia.' 27 The member returned to the topic again: 'Q: Now, what I have to say to you is, yes, I agree that there's continuing political violence. The question is whether somebody who's an ordinary member of FUNCINPEC and hasn't been taking party in anything since 1996 is at risk. Now, Foreign Affairs has been saying since 1998, that if you're an [sic] just an ordinary member of FUNCINPEC, then there's no problem for people. Amnesty International and Human Rights Watch all point to - people who get really involved in politics can be at risk, but not ordinary people like yourself, so I'm really still fishing for what is there about you, that's particularly --- A: I see that all the people that is more important is still --- Q: Belonging to the party, is it? A: Yes, because in the upcoming elections in the year 2001, so that's why CPP, they try to, you know, pay attention for political, for opposition party (indistinct) ordinary people who involved in the opposition party is still, is also at risk. Q: Have you paid any fees to FUNCINPEC in the past few years? A: Before I okay, but now no. Q: Okay. Does your membership lapse because you don't pay your membership fees? A: No, it's okay. Q: It's just for life? A: Yes.' 28 The applicant's wife also gave evidence. She said that she was also a member of FUNCINPEC. She was asked, and answered: 'Q: Did you ever have any trouble from the authorities because of anything you were doing? A: I'm always fearful of our cup of life, because we involve deeply in FUNCINPEC party.' 29 There was no other evidence before the RRT relating to the applicant's level of involvement with FUNCINPEC apart from that recited above. Specifically, he gave no evidence of his involvement with FUNCINPEC except during the 1993 election and that was to take part in the campaign in Takeo. 30 In its reasons, the RRT said: 'The Tribunal discussed with the Applicant advice from DFAT that ordinary members of FUNCINPEC were not at risk of arrest or harm at the hands of the authorities. "Leading members of Funcinpec and the KNP in Cambodia are not considered to be at risk at present, and are unlikely to become the prime targets of harassment by the Cambodian People's Party (CPP). They have the protection of international media scrutiny and the government's undertakings of a free and fair election. (Country Information Report, 160/98, 14 March 1998, CX29295) This advice was given over two years ago but it has remained firm since that time. For example, in December of that same year, DFAT stated that they: "checked with two NGO organisations and they confirm that with the formation of the new Cambodian Government on 30 November 1998, FUNCINPEC members have ceased to report harassment by members of the security forces. The only exception is several FUNCINPEC police officers who were allegedly involved in the demonstrations that occurred in Phnom Penh in September … the political harassment of FUNCINPEC supporters is no longer an issue." (CX33468, 17/12/1998) The Applicant responded that there were no guarantees that Hun Sen would not turn on Cambodian citizens, especially those who had belonged to FUNCINPEC. He had a very poor human rights record. He did not believe foreign observers were able to understand everything that was going on in Cambodia. The Tribunal discussed the current state of human rights in Cambodia with the Applicant. It agreed with him that there was much room for improvement. According to the 2000 Report by Amnesty International, "Impunity remained at the heart of Cambodia's human rights problems in 1999. A UN Group of Experts produced a report in march [sic] recommending the formation of a special tribunal to bring to justice those suspected of responsibility for gross human rights violations during the period of Khmer Rouge rule (17 April 1975 to 7 January 1979). The Cambodian authorities rejected the report and stated their intention to hold trials in Cambodia under domestic law; there were concerns about standards of fairness and judicial independence … Prime Minister Hun Sen ordered the rearrest of hundreds of people released by the courts … Torture in policy custody was reported, and excessive use of force during arrests caused a large number of deaths in policy custody. The coalition government - formed by the Cambodian People's Party (CPP) and the National United Front for an Independent, Neutral, Peaceful and Cooperative Cambodia (FUNCINPEC) in November 1998 - remained in power, headed by CPP Prime Minister Hun Sen. Stated government priorities included a crack-down on crime, suppression of illegal firearms, military and police reform, judicial reform and poverty alleviation. Amendments to Cambodia's 1993 Constitution allowed the formation in March of an unelected Senate as agreed to in the 1998 coalition arrangements …" (London, pp.64-65)' 31 The RRT accepted the first respondent's account of his life until the early 1990s. Further, it accepted that sometime in the early 1990s the first respondent joined FUNCINPEC. 32 It found there was a high level of violence in mid-1997 as FUNCINPEC and CPP under their respective leaders, Prince Ranariddh and Hun Sen vied for power. 33 It found that the coup, which was initiated by Hun Sen in 1997, had as its object the overturn of the system of dual government. 34 It said: 'The Tribunal has considered other reports of events in Cambodia between later 1998 and now and concludes that the above advice, from DFAT and from the independent Human Rights Watch, remains relevant. The current situation is one in which Prince Ranariddh has returned as president of the National Assembly and in which FUNCINPEC has joined in government with the CPP, not a situation envisaged in mid-1997. FUNCINPEC politicians are members of cabinet and FUNCINPEC supporters and members are found in various parts of government and the civil service. According to the United States Department of State Country Reports on Human Rights Practices for 2000, "The Constitution provides citizens with the right to change their government peacefully, and most citizens exercised this right by participating in the 1998 national elections. In July 1998, in the first national elections since 1993, the CPP won a plurality of votes. The electoral campaign and its aftermath were marred by protests, voter intimidation and partisan violence, some of it government-directed. Despite such incidents, the formation of the new Government reflected the will of the electorate." The Tribunal is satisfied that a supporter of FUNCINPEC who holds no office in the party and who has been unconnected with events in the 1997 coup and its aftermath can return to Cambodia and does not face a real chance of persecution for reasons of that support for FUNCINPEC. It is satisfied that the Applicant is able to vote and take part in the politicallife [sic] of Cambodia if he wishes to do so.' 35 The RRT did not specifically refer to the applicant in the finding mentioned immediately above. However, the applicant's evidence was that he was a supporter of FUNCINPEC. He held no office in the party. He was unconnected with events in the 1997 coup. Indeed, at that time he was in Australia. He therefore fitted the profile of the person described in that finding. 36 In making that finding, the RRT did not refer to the supporter as being an ordinary member or provide any other description of the person other than a supporter of FUNCINPEC. 37 The RRT dealt separately with the first respondent's wife's claim which was that, as a member of FUNCINPEC, she feared that if she returned to Cambodia her husband (her children's father) would be killed before her eyes as her father had been during the Pol Pot era. 38 In respect of the first respondent's wife's claim, the RRT accepted that she feared that if she were to return to Cambodia there would be a return of appalling violence. However, the RRT found that the Khmer Rouge was a spent force and that there was no suggestion that Hun Sen would resort to the Khmer Rouge ideology. 39 Otherwise, it dismissed her claim for a protection visa for the same reasons it dismissed her husband's claim. It was satisfied that she had no profile which indicated she was the sort of person who would provoke a harmful reaction from the government or its agents. 40 It said: 'The Tribunal makes the same finding in her matter as in that of her husband. It is satisfied that a rapprochement has been made between the two largest parties and that FUNCINPEC leaders and politicians function openly in seeking elector support. The Tribunal is satisfied that the Applicant wife has no profile which indicates she is the sort of person who would draw an adverse and harmful reaction from her government or its agents.' 41 It found that both the first respondent and his wife were not refugees. 42 The sole question before the Federal Magistrate was whether the RRT had committed jurisdictional error of the kind identified in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 76 ALJR 966. 43 There were two separate pieces of country information before the RRT; Country Information Report, 160/98, 14 March 1998 CX29295; and Country Information Report, 24/99, 17 December 1998 CX33468. 44 The first respondent argued before the Federal Magistrate that he was denied procedural fairness, not because the country information was not put to him but because the way in which it was put to him misled him as to the content of that country information. 45 The first respondent contended: 'The Tribunal had an obligation in complying with the rules of procedural fairness to present this information in fair and balanced way. … While there was no obligation on the RRT to draw the primary applicant's attention [to] materials favourable to his claims, procedural fairness required the RRT to draw to the Applicant's attention those favourable parts of the documents identified because their effect was to render misleading the statement that ordinary members were not a [sic] risk. There was a denial of procedural fairness because the Applicant did not have an opportunity to deal with the proposition if it was stated in a misleading fashion, as it was in this case.' 46 The Federal Magistrate discussed the country information which had been before the RRT and concluded at [18]: 'It is clear that the reliance on country information which was said to suggest that ordinary FUNCINPEC members did not face a real chance of persecution was pivotal to the final decision.' 47 The first respondent argued that the RRT conveyed the impression that the two separate pieces of country information available to the RRT unambiguously stated that there was no risk to ordinary FUNCINPEC members if they were to return to Cambodia. 48 It was contended that there was other information in the two pieces of country information which, it was said, applied to the first respondent. 49 The Federal Magistrate accepted that submission. The Federal Magistrate said at [22] and [23]: '22. The Tribunal implicitly accepted that the applicant was an active member of the FUNCINPEC party - that he was active in the party - albeit he was not in a leadership position. It referred however to him being an ordinary member, in contradistinction to a member in a leadership position, and in that vein put to the applicant a selected passage from the DFAT cable no. CX29295. In the context of the entirety of the cable the adverse material put was, I find, misleadingly portrayed. I accept that the manner in which this material was conveyed to the applicant was misleading. The Tribunal baldly put that ordinary members are not at risk and that was put in the context of a cable which also went on to say that: others who had a history of some activity could, if they returned to Cambodia, expect a call from the security authorities to warn them against further activisim. 23. The critical issue for the Tribunal to address was whether the level of activity of the applicant was such that he was at risk of persecution if he were to return to Cambodia. The country information relied upon by the Tribunal was not accurately stated and put to the applicant. It contained adverse material - even if all the material was not adverse - and needed to be put in proper context and without misleading the applicant. It was determinative of the decision. Whilst the Tribunal was not obliged to draw to the applicant's attention [sic] materials favourable to his claims, procedural fairness does require the Tribunal to draw to his attention those favourable parts of the documents identified because their effect was to render misleading the statement that there was no risk to ordinary FUNCINPEC members, and by implication, either passive or active members. On a fair reading of the DFAT cables of 13 March 1998 and 17 December 1998 the applicant was objectively misled. Those cables did point to risk factors for those persons with a history of some activity.' 50 She said: '24. I accept Counsel for the applicant's submissions that: Had the applicant and his wife been given access to the complete documents, or had there been a fair and accurate summary of what the documents said, they would have been in a position to answer what was an accurate proposition rather than a misleading one. They would have presented cogent and specific arguments to the Tribunal member addressing their mischaracterisation as ordinary but impliedly passive FUNCINPEC supporters as opposed to the low level political activists which they clearly were. To this end, the following further matters which were accepted, or not rejected, would be relevant by way of submissions: · The sister of the applicant's wife is a human rights activist, concerned with Cambodian women's issues, who fled to Thailand and who remains in that country in order to carry out her work safely. · The applicant has participated in demonstrations in Australia that may well have led to his inclusion on a CPP "black list" of political activists. · The applicant's wife has a history of assisting FUNCINPEC during election periods by distributing pamphlets, explaining the election process and touring the election booths for the benefit of Khmers.' 51 The submission which the Federal Magistrate accepted was based upon the contents of an affidavit sworn by the applicant and read in the proceedings before the Federal Magistrate. 52 The Federal Magistrate concluded: '25. I conclude there was a failure to accord the applicant procedural fairness. It was not a matter of a failure by the Tribunal to tell the applicant of information that was favourable to him, which clearly was not the obligation of the RRT. I find the applicant was misled about the contents of the country information put to him as contained in the DFAT cables. That information was pivotal in the RRT's reasons for dismissing his claim. (Applicants S194 of 2002 v Refugee Review Tribunal [2003] FCA 615 per Jacobson J at (79) and (87)). 26. The applicant was denied an opportunity to answer the finding which the RRT made on the basis of the material contained in the cables that no ordinary members of FUNCINPEC were at risk of persecution. I cannot be satisfied that the denial of that opportunity made no difference to the outcome of the proceedings before the RRT (see Re Refugee Review Tribunal; Ex part Aala (2000) 204 CLR 82).' 53 This matter comes before me after a determination made by the Chief Justice pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth). 54 Four grounds of appeal are raised. The substance of the grounds of appeal are: '(a) in finding that the manner in which the Tribunal disclosed the DFAT cables was misleading and denied the respondent a sufficient opportunity to respond to the adverse information; (b) in failing to recognise that, if the Tribunal accepted that the respondent was an activist in FUNCINPEC, then the relevant country information did not contain any information that was adverse to the respondent, meaning procedural fairness did not require its disclosure; (c) in failing to find that, once it had put to the respondent its view that he was an ordinary member of FUNCINPEC and that such members were not at risk of persecution, the Tribunal had complied with the requirements of procedural fairness, because it had provided the respondent with the opportunity to advance any evidence or to make any submissions that he wished in relation to that issue; and (d) by failing to accept that the evidence before the Court did not establish that the respondent had actually been misled in a way that could have affected the Tribunal's decision.' 55 In Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 576, Gummow and Hayne JJ said: 'It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.' 56 There was no obligation on the part of the RRT to bring to the attention of the first respondent material that was favourable to him or which supported his case. 57 It was put, however, that in this case the RRT had an obligation not to mislead the respondent by failing to put information to the respondent which would have allowed the respondent to submit to the RRT that he was a member of the class of persons identified in the DFAT cables who was at risk. 58 It was put that the statement contained in one of the RRT's questions: 'Our own department of foreign affairs says that there's no risk now to people who are ordinary FUNCINPEC members.' was by itself misleading and because of a failure to refer to other material in the country information also misleading. 59 In my opinion, there can be no doubt that a Tribunal, such as the RRT, has a positive obligation in according a party procedural fairness in the conduct of its proceedings to ensure that the party is not misled by the Tribunal itself. 60 A party appearing before the RRT is entitled to assume that the RRT will not mislead the party and that any proposition put to the party as being evidence contained in country information can be relied upon as being accurate. 61 The RRT has an obligation to put any country information upon which it seeks the applicant's comments in a balanced fashion so as not to mislead the applicant. 62 In those circumstances, this case does not so much concern whether there was a positive obligation on the part of the RRT to bring to the attention of the applicant information which was favourable to the RRT but whether, in the circumstances of the case, the RRT breached its obligations to accord procedural fairness to the applicant by failing to put the country information to which it was having regard in a balanced fashion, for the comment of the applicant. 63 In determining whether country information was put to the applicant in a balanced fashion, regard must be had to the course of the RRT's inquiry. 64 The first respondent said that he joined FUNCINPEC in 1993 and took part in the campaign for the elections in that year. He did not say what he did. He said he was not an office holder in the party at any time. He played no part in Cambodia's politics between January 1996 and the hearing before the RRT. During that time, a coup occurred in 1997 and another election was held in 1998 which gave rise to a resumption of power sharing between FUNCINPEC and CPP. 65 The first respondent adduced no evidence whatsoever to establish a level of any activity as a party member of FUNCINPEC other than simply as a member. 66 Moreover, as the transcript shows, at no stage during his evidence did he quarrel with the RRT's member's description of him as an ordinary member of FUNCINPEC. 67 The RRT concluded that the applicant was a supporter of FUNCINPEC who held no office within the party and who was unconnected with the 1997 coup and its aftermath. In those circumstances, it was inevitable, in my opinion, that the RRT would conclude that he was not an activist. Of course, it is for the RRT to find the facts but there can be no doubt that those findings were not only open on the evidence, but reflected the applicant's evidence. 68 In the first cable in early 1998 the author was replying to these questions: 'WHAT IS LIKELY TO HAPPEN TO FUNCINPEC AND KNP MEMBERS WHO RETURN TO CAMBODIA? WHAT TYPE OF PEOPLE SHOULD HAVE REASON TO FEAR PERSECUTION FROM THE CAMBODIAN AUTHORITIES (E.G. MILITARY OFFICERS, POLICE OFFICERS, SENIOR POLITICAL FIGURES AND THEIR IMMEDIATE RELATIVES)?' 69 In a paragraph headed 'Persons Unlikely to be at Risk', the author writes: 'LEADING MEMBERS OF FUNCINPEC AND KNP IN CAMBODIA ARE NOT CONSIDERED TO BE AT RISK AT PRESENT, AND ARE UNLIKELY TO BECOME THE PRIME TARGETS FOR HARASSMENT BY THE CAMBODIAN PEOPLES PARTY (CPP). THEY HAVE THE PROTECTION OF INTERNATIONAL AND MEDIA SCRUTINY AND THE GOVERNMENT'S UNDERTAKINGS ON A FREE AND FAIR ELECTION. NON-ACTIVE GRASS ROOTS PARTY MEMBERS OF FUNCINPEC AND KNP ARE NOT OF MUCH INTEREST TO CPP BECAUSE THEY ARE NOT IMPORTANT. THOSE INDIVIDUALS WHO ARE SIMPLY PARTY MEMBERS AND HAD NO HISTORY OF FUNCINPEC/KNP PARTY ACTIVISM WERE UNLIKELY TO FACE VIOLENT INTIMIDATION IF THEY RETURN. OTHERS WHO HAD A HISTORY OF SOME ACTIVITY COULD, IF THEY RETURNED TO CAMBODIA, EXPECT A CALL FROM THE SECURITY AUTHORITIES TO WARN THEM AGAINST FURTHER ACTIVISM.' 70 In my opinion, that part of that cable supported the question put to the first respondent, which included the statement: 'Our own department of foreign affairs said that there is no risk now to people who are ordinary FUNCINPEC members.' 71 The same cable then discussed persons possibly at risk and said: 'INDIVIDUALS CURRENTLY CONSIDERED TO BE AT RISK ARE THE MIDDLE LEVEL ACTIVISTS, PARTICULARLY IN THE PROVINCES AND DISTRICTS, ON WHOM FUNCINPEC AND KNP DEPEND TO ORGANISE FOR THE FORTHCOMING ELECTION. IT IS CONSIDERED THAT CPP WILL USE VIOLENCE AS A STRATEGY TO SECURE ELECTORAL VICTORY.' 72 On the RRT's findings, that information did not apply to the first respondent. There was no evidence that he was a middle level activist. There was evidence that he did not live in the provinces and, of course, he was not a person upon whom FUNCINPEC was depending to organise for the forthcoming elections because he was in Australia. Therefore, he did not fit the profile of the individuals referred to in that passage. 73 In the second cable, which was created after the 1998 election in Cambodia, the author writes: 'THE DEPARTMENT HAS BEEN TOLD BY A WELL PLACED NGO THAT THERE WAS EVIDENCE THAT CPP WAS HARASSING PROVINCIAL ORGANISERS AND ACTIVISTS OF FUNCINPEC PRIOR TO THE 1998 ELECTION. HOWEVER, PASSIVE SUPPORTERS OF FUNCINPEC WERE NOT USUALLY BOTHERED AND THERE WAS LESS PRESSURE ON OPPOSITION SUPPORTERS IN PHNOM PENH.' 74 The first respondent said that that information was not provided to him. 75 In my opinion, the information in the first sentence had no relevance to the first respondent's claim. He was not, on his own evidence, a provincial organiser. He gave no evidence of activism prior to the 1998 election. 76 Indeed, on the contrary, he was in Australia for two years prior to that election. 77 If the RRT was of the opinion that the applicant was an ordinary member of FUNCINPEC, which the country information said meant that the applicant was not at risk of persecution, then the failure to advise the applicant that persons of a higher level in FUNCINPEC who were not ordinary members or at a risk is a matter of no consequence. 78 The RRT's failure to provide that information to the first respondent did not mislead him. 79 Moreover, the cable went on to say: 'HOWEVER, THE DEPARTMENT HAS CHECKED WITH TWO NGO ORGANISATIONS AND THEY CONFIRM THAT WITH THE FORMATION OF THE NEW CAMBODIAN GOVERNMENT (A COALITION BETWEEN CPP AND FUNCINPEC) ON 30 NOVEMBER 1988, FUNCINPEC MEMBERS HAVE CEASED TO REPORT HARASSMENT BY MEMBERS OF THE SECURITY FORCES.' 80 The cable concluded: 'WE DRAW YOUR ATTENTION TO THE STATEMENTS ABOVE THAT THE POLITICAL HARASSMENT OF FUNCINPEC SUPPORTERS IS NO LONGER AN ISSUE.' 81 In my opinion, that cable supported the statement which was contained in the question put by the member of the RRT to the first respondent. 82 The first respondent argued that the cable was written only two weeks after the election and, in those circumstances, not too much regard could be had to what had happened over that short period. However, that goes to the weight which should be attached to the matters in the cable. That was a matter for the RRT. 83 In my opinion, on the evidence before the RRT, it cannot be said that the RRT misled the first respondent by failing to provide him with country information relevant to the claims he was putting to the RRT. Nor can it be said that the statement made to the first respondent was misleading. There was a good deal of evidence to support what was said in that statement. 84 I therefore disagree with her Honour's reasons, especially at [22], that the adverse material was misleadingly portrayed. 85 The Federal Magistrate did not have regard to the most recent cable, the terms of which I have recited above. 86 In any event, the failure to advise the first respondent that those who had a history of some activity could expect a call from security authorities to warn them against further activism could not have led to the first respondent giving the evidence referred to in the submission which was accepted by the Federal Magistrate in [24] of her reasons. 87 That evidence does not bear upon the matter said to be a part of the misleading portrayal. 88 The evidence referred to in [24] of the Federal Magistrate's reasons was evidence which would have supported a finding that the first respondent had a greater degree of activity as a member of FUNCINPEC than the evidence which he adduced before the RRT. 89 It was not evidence which would have supported a finding that, having regard to the first respondent's level of activity within FUNCINPEC, the first respondent was liable to persecution. 90 If the applicant had been advised of the risk to higher level members in FUNCINPEC, all the applicant could have put was that he should be treated at that level rather than as an ordinary member. 91 Whether he was to be treated at that level or as an ordinary member did not depend upon the country information which was given by the RRT to the applicant. 92 There are two other reasons why the first respondent's application for a review should have failed. If, as he asserted on this appeal and before the learned Federal Magistrate, he was a high level activist within FUNCINPEC his case failed because that evidence was not accepted. It was not for the Federal Magistrate, or for this Court on appeal, to find contrary to the finding of the RRT that he was anything but a supporter of FUNCINPEC who held no office within the party and was unconnected with the events of the 1997 coup. 93 However, even if that were wrong and the RRT should have found that he was a high level activist then all of the information that was put to him by the RRT was irrelevant because it only applied to ordinary members. In those circumstances, he was only ever provided with irrelevant information, not misleading information. 94 For all of those reasons, in my opinion, the first respondent's application for review of the RRT's decision should have been dismissed. 95 I would therefore allow the appeal and set aside the orders made by the Federal Magistrate on 5 November 2004 and, in lieu thereof, make an order that the first respondent's application for a review of the decision of the RRT given on 24 November 2000 be dismissed. The respondents must pay the appellant's costs in the Court below. 96 Mr Gibson, who appeared for the first respondent, asked for an order under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) in the event that the appeal was allowed. 97 It seems to me that I ought to hear the parties in relation to what orders as to costs should be made in relation to the appeal and on Mr Gibson's further application. I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.