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[2007] FCA 1797
Federal Court of Australia
2007-11-23
Ryan J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal from orders made by Cameron FM on 5 June 2007, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). By a decision handed down on 23 November 2006, the Tribunal had affirmed a refusal on 15 November 2005 by a delegate of the Minister for Immigration and Citizenship ("the Minister"), to grant a protection visa to the appellant. 2 In an earlier decision signed on 31 January 2006 and handed down on 9 February 2006, the Tribunal, as then constituted, affirmed the delegate's decision. On 13 June 2006, the Federal Magistrates Court set aside that decision and remitted the matter to the Tribunal. The latter decision of the Tribunal is the subject of this appeal. 3 The appellant is a national of Nepal. Before the Tribunal, the appellant claimed to have a well-founded fear of persecution by Maoists as an active member and supporter of the Nepalese Congress Party. He claimed to have been a member for the last twenty years of the Nepalese Congress Party, including its student wing, and to have been involved in successive election campaigns in support of the Congress Party. 4 The appellant claimed that he had participated in campaigns opposing the Maoists and had been involved in organising rallies. He claimed that, during that period, he had received various letters from "Maoist district command" demanding that he cease his activities or face serious consequences. Some letters went so far as to threaten him with death. As a result of these threats, the appellant claimed, he removed himself from his residence and lived at different locations. 5 The appellant also claimed to have owned a bus business in West Nepal which had ended when Maoists damaged his buses after he had been forced to allow Army personnel to hire the buses to assist in retaliation against Maoist strikes. That use of his buses, he said, had led the Maoists to believe that he was supporting the government. After the loss of the business, he had, in 2003, opened a rice mill which operated for two years and was closed due to his refusal to pay donations to Maoists. He then found that Maoists had visited his home and wanted to take physical action against him. 6 The appellant provided supporting documents in support of his claims, including a letter from the Maoists dated 8 September 2004. 7 The Tribunal accepted various parts of the appellant's evidence observing at p 15 of its reasons; 'The Tribunal accepts that the Applicant owned a number of buses and that he bought a rice mill in 2003. The Tribunal accepts that the Applicant would be known in his community as a businessman and, therefore, as a member of a particular social group recognised in Nepal as "businessmen." The Tribunal accepts that "businessmen" have been and to some extent continue to be targets for illegal revenue-raising by Maoists for reasons of their money. The Tribunal accepts that the selection of businessmen for this kind of coercive revenue-raising is not merely a matter of their being perceived to be able to afford to part with the money,, and that it is also a means by which the Maoists can punish "businessmen" to a degree for being class enemies, i.e., on the basis of an imputed political opinion.' 8 The Tribunal discounted the evidentiary value of a letter from West Nepal Bus Entrepreneurs adduced by the appellant which, it said, contained information which was inconsistent with the appellant's own evidence. However, the Tribunal accepted that, in December 2003, Maoists had destroyed two buses belonging to the appellant but, in its view the appellant was merely a collateral victim of that incident and the focus of the attack had been on soldiers in the buses and on the Nepalese Army. As a result, it did not regard the attack on the appellant's buses as giving rise to a well-founded fear of persecution for a Convention reason. 9 The Tribunal also accepted that the appellant had paid money to the Maoists, but did not accept evidence that he had paid sums "so high in his case as to deprive him or his family in such a way as to amount to persecution". With regard to his claim to have received death threats, the Tribunal did not accept that the appellant had received death threats or had been in fear of his life because he had gone for many years without responding to requests for revolutionary taxes. Moreover, because the appellant had left his family at home during the whole of the time when he claimed to have been in hiding, the Tribunal rejected that part of the appellant's claim. 10 The Tribunal did not accept as genuine a letter to the appellant dated 8 September 2004, which, in translation, recited: 'Red Salute
As mentioned above, this notice is to inform and warn you that you will be physically punished because of your involvement in several activities against our Nepal Communist Party. You are also directed to resign from the Nepali Congress Party. Your involvement in activities such as: strong comments made against our party's regular programmes and activities during your organizational and public meetings, disregarding requests for donations made by our district secretary and ignoring warning notices, not participating in the "Nepal Bandh" (Strike) and other regional strikes organised by our party, use of army protection for your business transport facilities during the strike, assisting the government in its effort to disrupt the strike by giving information and support, have all been noted through our transportation department. Action will be taken at any time in the future against you and your transportation system.'
11 In respect of that letter, the Tribunal observed, at p 16 of its reasons; 'The Applicant claims that the 8 September "Notice of Information and Warning" is genuine evidence of the Maoists threatening to kill him and of their trying to direct his behaviour under threat of killing him. Having considered the content of the letter, the widely-reported ruthlessness of the Maoists and the summariness of their behaviour, as distinct from the notice given in the letter, the lateness of the letter's presentation as evidence in this matter and the Applicant's explanation for that delay, the Tribunal does not accept that the letter is genuine, or that the death threat it contains was ever made to the Applicant in any form.' 12 The Tribunal accepted that, on one occasion, Maoists had vandalised the appellant's rice mill as a form of pressure to extract revolutionary tax. However, the Tribunal did not accept that damage as conveying a death threat or as a punishment for perceived anti-Maoist political activity. The Tribunal declined to regard the damage to the mill as giving rise to a well-founded fear of persecution because it did not prompt the appellant to go into hiding or move himself or his family to a safer location. 13 The Tribunal discounted as vague and unimpressive the appellant's evidence that he had been an active member of the Nepalese Congress Party. It noted that the letters from the Party on which the appellant relied did not acknowledge any committee involvement and regarded both letters as generated in response to a request by the appellant to send him documents in support of his application for a protection visa. The Tribunal did not accept that the appellant had been a member of the Nepalese Congress Party. 14 The Tribunal regarded a letter from the local police as affording no help in supporting the appellant's claim that his support for the National Congress Party jeopardised his ability to live free of persecution in Nepal. That letter, dated 19 October 2005, was in these terms (as translated); 'To Whom It May Concern: This is to certify that Mr Bishnu Prasad Lamsal, son of Mr Tuk Raj Lamsai, resident of Semlar Village Development Committee Ward number 2, Rupandehi District has been targeted and his life threatened by the Maoist activist because he could not give donations demanded by the Maoist. It is very difficult for him to live safely in the village.' 15 In the Tribunal's view, that letter lacked satisfactory detail, was written more than a year after the alleged event and gave no indication why the matters which it recited should be accepted as factual. On the other hand, the Tribunal attached significance to the fact that the appellant's family remains in his home region, "living an evidently unremarkable life, drawing an income from farming." Accordingly, the Tribunal concluded that the appellant "could make his way [to the same region] and live there in similar conditions of protection." Consequently, the Tribunal was not satisfied on the evidence before it that he had a well-founded fear of persecution in Nepal for a Convention reason. 16 Before the learned Federal Magistrate, by an amended application dated 26 March 2007, the appellant contended that the Tribunal had failed to provide reasons for its decision in relation to the late production of the letters relied on by the appellant and the explanation which he had given for that late production. In oral submissions, the appellant contended that the Tribunal should have contemplated and scrutinised the content of the letter and considered the evidence provided by the appellant. The appellant asserted that the Tribunal's findings regarding the letter were contradicted by information contained in the material which had been submitted by the appellant's adviser. 17 The Federal Magistrate found the allegation that the Tribunal had not considered the large number of documents submitted to it was not supported by evidence. In his Honour's view, the fact that there was evidence available to the Tribunal to lead it to a different conclusion regarding the conduct of the Nepalese Maoists was not a matter on which the Court could act, as the making of findings of fact was reposed exclusively in the Tribunal. His Honour found that there was sufficient evidence identified by the Tribunal as required by s 420 of the Migration Act 1958 (Cth) ('the Act') to justify its findings in relation to the behaviour of Maoists in Nepal. 18 The appellant's notice of appeal filed in this Court on 25 June 2007 asserts these grounds; '1. The Refugee Review Tribunal's decision was affected by breach of s 424A and Section 430 of the Migration Act 1948 (Cth). Tribunal's decision was affected by jurisdictional error because there was a reasonable apprehension that the Tribunal member had made up his mind to affirm the decision of the delegate at the time when the Tribunal sought to comply with its obligations under s 424A of the Act.
(a) There was certain adverse information used by the Tribunal to affirm the decision under review. The tribunal failed to invite applicant to comment on that information's.
(b) The Tribunal did not disclose the information in accordance with s 424A(1) and the tribunal did not act logically or rationally in deciding applicants case before them.'
19 On 19 August 2007, Deputy District Registrar Farrell gave directions for the preparation and hearing of the present appeal. Those directions included; '8. The appellant file and serve written submissions no later than five (5) clear working days before the hearing date unless otherwise directed.' Despite that direction, no written submissions have been filed on behalf of the appellant. 20 In my view, it is not now open to the appellant to invoke s 424A of the Act as no contravention of that section was raised in the application for judicial review in the Federal Magistrates Court where the appellant, who appeared in person on the hearing of the present appeal, had legal representation. In any event, no particulars have been supplied of the alleged contravention of s 424A and there is nothing on the face of the Tribunal's reasons for decision to indicate that when, by letter dated 9 August 2006, it invited the appellant to comment on various pieces of identified information, it had a closed mind on any relevant issue. 21 Section 430(1) of the Act provides; 'Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.'
It is clear from that sub-section that it did not oblige the Tribunal to set out its findings on an allegation of fact by the appellant which it rejected. As McHugh, Gummow and Hayne JJ explained in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, at [68]; 'Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word "material" in s 430(1)(c). It was said [(2000) 98 FCR 469 at 481 [47]-[48]] that "material" in the expression "material questions of fact" must mean "objectively material". Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. (original emphasis)' 22 The lack of logic or rationality which he has imputed to the Tribunal cannot avail the appellant in this case. It is completely unparticularised in the so called "particulars" in sub-paragraph (a) of ground 2 in the notice of appeal. Nor does "want of logic" constitute an independent or free-standing jurisdictional error in this universe of discourse; see NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235, at [30] and the subsequent judgments of Full Courts of this Court which have followed that authority. 23 As I understand the illogicality for which the appellant contends, it is that the letter set out at [10] above, should not be accepted because its tone and apparent courtesy was inconsistent with the generally peremptory and brutal conduct of Maoist terrorists as known to the Tribunal. In the second place, the Tribunal relied on the fact that the letter, although dated 8 September 2004, was not produced until 10 January 2006, long after the appellant had begun adducing evidence in support of his application for a protection visa. There is nothing in those two reasons advanced by the Tribunal for rejecting the authenticity of the letter of 8 September 2004 which constitutes a non sequitur, or is otherwise irrelevant to the Tribunal's evaluation of the letter. Even if illogicality could found jurisdictional error it is not established merely because a reviewing court would not itself have adopted a chain of reasoning which commended itself to the Tribunal. 24 For the reasons outlined above, the appellant has failed to sustain any of the available grounds of appeal. The appeal must therefore be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.
Counsel for the Appellant: The appellant appeared in person
Counsel for the First Respondent: Mr C Mantziaris
Solicitor for the First Respondent: DLA Phillips Fox
Date of Hearing: 19 November 2007
Date of Judgment: 23 November 2007
SZIMP
Minister for Immigration and Citizenship