FEDERAL COURT OF AUSTRALIA

N258/00A v Minister for Immigration & Multicultural Affairs [2000] FCA 993

MIGRATION – refugees – application for protection visa – review of decision by Refugee Review Tribunal – cumulative character of s 476(4) – burden of persuasion imposed by s 476(4) – circumstances of application of s 476(4)(a) – whether Tribunal made its decision based on particular facts which did not exist – whether s 476(1)(g) applies to findings of non-existence of facts – whether proof that fact found to exist does not exist must be by admissible evidence – whether s 430(1)(d) requires Tribunal to “detail” or “set out” material on which it bases its findings of fact – whether s 430(1)(b) requires Tribunal to explain why it did not prefer particular material before it.

Migration Act 1958 (Cth), ss 430(1), 476(1)(a), (e), (g) & 476(4)

Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 622; [1999] FCA 1726 discussed

El Hejjar v Minister for Immigration & Multicultural Affairs [2000] FCA 263 referred to

Mohammed v Minister for Immigration & Multicultural Affairs [2000] FCA 264 referred to

Balan v Minister for Immigration & Multicultural Affairs (2000) 171 ALR 7 referred to

Television Capricornia Pty Limited v Australian Broadcasting Tribunal (1986) 13 FCR 511 referred to

Yilan v Minister for Immigration & Multicultural Affairs [1999] FCA 854 referred to

Nefiodova v Minister for Immigration & Multicultural Affairs [2000] FCA 179 referred to

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 referred to

Angus Mitchell, “New Light on the ‘Heart of Darkness’”, December 1999 History Today 20

N258/00A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N258 of 2000

KATZ J

26 JULY 2000

SYDNEY

THE COURT ORDERS THAT:

1.                  The applicant’s application for review be dismissed. 

2.                  The applicant pay the costs of the proceeding, apart from the costs thrown away by reason of the late filing and serving of the written submissions prepared on the applicant’s behalf by the New South Wales Legal Aid Commission.

3.         Any application by the respondent for the making of an order against the New South Wales Legal Aid Commission for the costs thrown away by reason of the late filing and serving of the written submissions prepared by it on the applicant’s behalf be made within seven days.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     There is before the Court an application for review of a decision which was made on 21 March 2000 by the Refugee Review Tribunal (“the Tribunal”).  That decision affirmed an earlier decision refusing to grant a protection visa to the male person who is the applicant in the present proceeding (“the applicant”).  The earlier decision had been made on 23 August 1999 by a delegate of the Minister for Immigration and Multicultural Affairs (“the delegate” and “the Minister” respectively).  The delegate’s decision had determined an application for a protection visa which had been made by the applicant on 29 June 1999, he having arrived in Australia on 18 June 1999.

2                     Before the Tribunal, the applicant had claimed that, owing to well-founded fear of being persecuted for (relevantly) two Convention reasons, namely, membership of a particular social group and political opinion, he was both outside the country of his nationality, the Democratic Republic of the Congo (“the DRC”), and unwilling to avail himself of that country’s protection.  However, the Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for either of those two Convention reasons.

3                     In his application to this Court, which was filed by him in person, the applicant specified no grounds of review of the Tribunal’s decision, merely saying, “Details will be sent at a later date”.  Then, when his application was the subject of the usual directions hearing, he (appearing in person) consented to directions requiring him to file and serve an appropriately informative amended application about a month before the scheduled hearing date of his application and also requiring him to file and serve written submissions five working days before the scheduled hearing date of his application.  The applicant complied with neither of those directions.  However, on the afternoon of the day before the day on which the hearing of his application had been scheduled to take place, the applicant faxed to the Court seven pages in single-spaced type containing submissions to the effect that the Tribunal had committed various judicially-reviewable errors in making its decision regarding his protection visa application.  It was apparent from certain fax information on those submissions that they had been prepared by the New South Wales Legal Aid Commission, faxed to the applicant that morning and then re-faxed to the Court by him.  (The Commission, I add, had acted for the applicant before the Tribunal.)

4                     When the matter came on for its scheduled hearing on the following morning, the applicant again appeared in person, while the Minister was legally represented.  However, I decided then not to proceed with the scheduled hearing, but to give to the Minister an appropriate opportunity to consider and to respond in writing to the written submissions so recently provided to the Court by the applicant and to fix another hearing date for the near future.  I was informed by the Minister’s legal representative at that time that, like the Court, the Minister had only received on the preceding afternoon the written submissions prepared on the applicant’s behalf.  I was informed further that the Minister was not then in a position to respond adequately to those submissions, because, among other reasons, they purported to quote from a number of lengthy documents which had been before the Tribunal, but the Minister had been unable, in the short time available to him since receiving the written submissions, to confirm, by examination of those documents as they appeared in the bundle of “Relevant Documents” earlier supplied by him to the Court, the existence of some at least of those purported quotations.

5                     I subsequently received written submissions from the Minister responding to those prepared on the applicant’s behalf and the rescheduled hearing then took place.  In the Minister’s written submissions, he stated that the bundle of “Relevant Documents” which he had earlier supplied to the Court had not contained a complete copy of one of the lengthy documents to which I have referred in the preceding paragraph of these reasons, but had contained only those parts of that document which had been referred to by the Tribunal in its statement of findings and reasons.  However, the Minister accepted both that the Tribunal had had access to the full version of the document and that all of the purported quotations in the applicant’s written submissions had been accurate.  Further, it was apparent from the Minister’s written submissions that he was prepared to proceed on the basis that the applicant’s grounds of review of the Tribunal’s decision had been adequately signalled in the written submissions which had been prepared on his behalf, nonetheless though there was no amended application before the Court.  Finally, I mention that, although at the hearing I invited each party to supplement his written submissions orally if he thought it desirable, each was content to rely solely on his written submissions.

6                     In the written submissions prepared on the applicant’s behalf, complaints were made of the way in which the Tribunal had dealt in certain respects with his claims that he had a well-founded fear of being persecuted for reasons of membership of a particular social group and of political opinion.

7                     Before dealing with those complaints, it will be convenient for me to give some general background information about the DRC, in order to assist in the better understanding of those portions of the Tribunal’s statement of findings and reasons with which it will be necessary for me to deal in these reasons.

8                     The DRC is in west-central Africa.  Considered solely from a European perspective, the DRC’s earliest incarnation was as the Congo Free State (of “Heart of Darkness” fame).  Next, it became the Belgian Congo.  Then, switching to an African perspective, it became independent of Belgium in 1960 under the name of the Republic of the Congo, a name which was changed to the DRC in 1964.  In 1965, control of the country was assumed (for the second time since independence) by the armed forces officer, Joseph Mobutu (who later renamed himself Mobutu Sese Seko and who retained power in the DRC until 1997).  In 1966, President Mobutu established a political party called (in English) the Popular Movement for the Revolution (“the MPR”).  In 1970, the DRC became a one-party state, with that party naturally being the MPR.  In 1971, President Mobutu changed the DRC’s name to the Republic of Zaïre (“Zaïre”).  In 1982, some political opponents of President Mobutu’s established a body known (in English) as the Union for Democracy and Social Progress (“the UDPS”).  In late 1996, President Mobutu proposed to expel from eastern Zaïre certain ethnic Tutsis who had long lived there.  That proposal was, not surprisingly, resisted by the people concerned.  Their resistance developed into a civil war, in which various other groups opposed to President Mobutu and the MPR also joined.  In 1997, the rebel forces, led by Laurent Kabila (himself not an ethnic Tutsi) prevailed over the Mobutu-MPR forces.  Mr Kabila assumed power in Zaïre and restored the country’s name to the DRC.  The body which President Kabila led was known (in English) as the Alliance of Democratic Forces for the Liberation of the Congo (“the ADFL”).  On the coming to power of President Kabila and the ADFL, the UDPS now opposed them, just as it had in the past opposed President Mobutu and the MPR.  President Kabila and the ADFL soon also alienated their former ethnic Tutsi allies by seeking to expel them (or at least some of them) from the DRC and those former allies, under the name (in English) of the Congolese Rally for Democracy, began in August 1998 to oppose President Kabila and the ADFL militarily.

9                     That background out of the way, I will deal first with the applicant’s complaints about the way in which the Tribunal dealt in certain respects with his claim that he had a well-founded fear of being persecuted for reasons of membership of a particular social group.

10                  In that part of its statement of findings and reasons specifically headed “FINDINGS AND REASONS”, the Tribunal set out its findings and reasons regarding the applicant’s claim that he had a well-founded fear of being persecuted for reasons of membership of a particular social group.  First, according to the Tribunal, two overlapping formulations of the particular social group to which he belonged emerged from the applicant’s claims: one was his family; and the other was relatively affluent people.  (No submission was made on the applicant’s behalf before me that the Tribunal had committed judicially-reviewable error by so formulating the particular social groups to which the applicant had claimed to belong.) Next, the Tribunal made reference to certain of the applicant’s assertions concerning the “particular social group” issue and then continued, “I have reached the following conclusions about the aspects of the applicant’s evidence concerning his fear of persecution because of his membership of a particular social group.” The Tribunal then set out four numbered conclusions which it had reached and concluded,

“I do not consider that there is a real chance that the applicant would face persecution within the meaning of the Refugees Convention because of his family connection or because he is relatively affluent or that what he may face as a victim of crime or extortion would be because of a Convention reason.”

11                  In summary, the first and third of the four numbered conclusions of the Tribunal were that, contrary to the applicant’s claim, his father was not wanted by the Kabila regime for reasons of his (the father’s) political opinion or because he (the father) had accumulated wealth under the Mobutu regime and that there was no real chance that the applicant would be mistreated if he were to return to the DRC because he is his father’s son.  No submission was made on the applicant’s behalf before me that the Tribunal had committed judicially-reviewable error by reaching those particular conclusions.

12                  The second of the four numbered conclusions of the Tribunal was as follows:

“Second, the applicant could come under suspicion [if he were to return to the DRC] because he and his family accumulated wealth under the Mobutu regime and the [question of the] ownership of his mother’s house may have come to the attention of the authorities.  The January 1998 UNHCR Guidelines for refugees and asylum seekers from the Democratic Republic of [the] Congo include prosperous businessmen who may be suspected of profiting from the corruption which was endemic under the Mobutu regime as a category of persons who may require protection.  After taking power in May 1997, [President] Kabila established an Office of Ill-Gotten Gains to search for and confiscate assets which had been improperly accumulated.  Independent information outlined above indicates that about forty officials of the Mobutu government were arrested and detained for reasons relating to corruption and that only six of these were detained for an extended period.  While the January 1998 guidelines indicate that prosperous businessmen were among people who may require protection, it appears from information available to the Tribunal that confiscation of the assets of businessmen was the punishment and the Tribunal is not aware of reports that businessmen faced treatment such as arrest, imprisonment or detention as the [S]tate acted to claim their assets.  Moreover, the actions of the Office were somewhat corrupt, forcing the subsequent return of some of the confiscated assets to those who owned them.  Two factors have led me to conclude that whatever the applicant may face because of his and/or his family’s affluence if he were to return to the DRC does not engage the provisions of the Refugees Convention: the first is that the extent of harsh treatment (arrest, detention, imprisonment) [of] and reprisals against officials in the Mobutu administration was in my view short-lived and minimal given the extent of the corruption and the theft and squandering of public assets which characterised the Mobutu regime.  There are no reports of which I am aware that businessmen whose interests were well-served under the Mobutu regime have been treated even as harshly as these officials because of this.  I consider the chance that a person with the business background of the applicant, or the son of a successful businessman as is the applicant, would suffer for this reason serious harm sufficient to constitute persecution to be remote.  The second reason why I do not believe that actions to reclaim assets and so punish corruption engages the provisions of the Refugees Convention is that the policy does not in itself discriminate or persecute for any of the reasons in the Refugees Convention.  There is no evidence that the motivation for the policy to recover assets which were improperly acquired under [President] Mobutu was other than to reclaim assets lost to the [S]tate.  The new regime was entitled to adopt such a policy in the face of the extent of corruption which existed in the country.  That its implementation has had many serious shortcomings and that it may have been haphazardly applied for local or personal reasons is demonstrated by authorities having to return misappropriated assets to their owners.  But nothing before me indicates that what the applicant may experience because of the application of the policy would be applied differently to him because of any of the reasons in the Refugees Convention.”

13                  The passage which I have just set out from the Tribunal’s statement of findings and reasons appears to me to be self-explanatory, subject only to one matter, the Tribunal’s reference to the fact that the question of the ownership of the applicant’s mother’s house may have come to the attention of the authorities.  As to that matter, I mention that the applicant’s mother and father appear to have been divorced no later than 1992.  It appears further that, at some time between 1997 and 1999, while the applicant had been in Canada (as to which, see further below), his mother had written to him there, telling him that the Office of Ill-Gotten Gains was interested in a house of which she was apparently the owner and that it had asked her to prove that it was actually hers, rather than her former husband’s.

14                  The written submissions prepared on the applicant’s behalf isolated three statements from the second of the four numbered conclusions of the Tribunal on the “particular social group” issue, which conclusion I have quoted in the next preceding paragraph of these reasons, and submitted that judicially-reviewable error was evidenced by each of those three statements.

15                  The first statement which was isolated was: “[T]he Tribunal is not aware of reports that businessmen faced treatment such as arrest, imprisonment or detention as the [S]tate acted to claim their assets”.

16                  As to that statement, it was submitted that its making by the Tribunal demonstrated that the Tribunal had committed the judicially-reviewable error of making its decision when there was no material to justify its making: see par 476(1)(g) of the Migration Act 1958 (Cth) (“the Act”).  Then, with reference to par 476(4)(b) of the Act, it was further submitted,

“The Tribunal made its decision on the basis of a particular fact described in the following way by the Tribunal ‘the Tribunal isnot aware of reports that businessmen faced treatment such as arrest, imprisonment or detention as the [S]tate acted to claim their assets.’

This particular fact did not exist.”

17                  Having made the submissions to which I have just referred, the author of the applicant’s written submissions then referred to two extracts from the American State Department’s report on DRC human rights practices in 1999 (“the State Department report”), drawing attention at the same time to the fact that the Tribunal had itself referred to that report in its statement of findings and reasons on the applicant’s protection visa application.  I will quote below those two extracts.

18                  First, in Section 1.c., under the heading “Respect for the Integrity of the Person, Including Freedom From … Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment”, it had been said:

“Members of the security forces … raped, robbed, and extorted money from civilians; some abusers were prosecuted (see Section 1.a.).  Incidents of physical abuse by security forces occurred during the arrest or detention of political opponents, journalists, and businessmen (see Sections 1.d. and 2.a.).”

19                  Secondly, in Section 1.f., under the heading “Respect for the Integrity of the Person, Including Freedom From … Arbitrary Interference with Privacy, Family, Home, or Correspondence”, it had been said:

“The security forces repeatedly raided private businesses, including newspapers, banks, and law firms, seizing documents and other property, and arrested and detained employees whom they accused of collaborating with antigovernment forces (see Sections 1.d. and 2.a.).  Security forces routinely ignored requirements for search warrants, entering and searching at will.  In February [1999] the Government seized two foreign-owned diamond mines near Tschikapa in Western Kisai Province, and subsequently operated them.  When unable to locate a specific individual, authorities routinely arrested or beat the closest family member (see Sections 1.c. and 1.d.).  On July 9 [1999], soldiers entered and searched the home of Innocent Kyuma without a warrant, seeking to arrest him for unknown reasons.  After stealing money, they arrested Kyuma’s pregnant wife and his sister.  Military personnel held the two hostage until Kyuma appeared, and then arrested him.  His release had not been reported by year’s end.  In March [1999] security agents forced their way into the homes of two Kinshasa families, ostensibly searching for Tutsis in hiding (see Sections 1.d. and 5).  In one house, they arrested the son, since the father was not at home.  In both homes they looted belongings and threatened to kill the inhabitants.  On July 9 [1999], the same soldiers raided the office of a businessman named Kisaka for unknown reasons.  The soldiers reportedly whipped the office staff as well as clients in their search for Kisaka.  Upon learning that he was traveling [sic], the soldiers arrested his secretary and stole her minibus.  Later that night the same soldiers arrested Kisaka’s younger sister Judith.  ANR [that is, (in English) National Intelligence Agency] agents detained Kisaka’s secretary for almost 1 week, and his sister for almost 2 weeks.

Security agents forced their way into private homes without search or arrest warrants, often beating the inhabitants and stealing money and goods.  There were reports that security forces raped women during these raids.  The police often raided opposition party leaders’ residences, made arrests, and seized files (see Sections 1.c. and 1.d.).  On January 11 [1999], security forces invaded the residence of UDPS opposition party member Jean Joseph Mukendi wa Mulumba.  They claimed to be searching for Tutsis in hiding (see Sections 1.d. and 5).”

20                  Having quoted the two extracts from the State Department report which I have quoted in the preceding two paragraphs of these reasons, the author of the submissions prepared on the applicant’s behalf then offered no further elaboration of the submissions being made on the present aspect of the matter.

21                  Before I deal specifically with the applicant’s written submissions on the present aspect of the matter, it may be useful for me to make some general comments about the ground of review provided for by par 476(1)(g) of the Act.  Some of these general comments echo comments which I have earlier made in Arudselvan v Minister for Immigration and Multicultural Affairs [1999] FCA 622 (9 August 1999, unreported) at [48]-[71], where I discussed extensively that ground of review.  (An appeal from my decision in Arudselvan was afterwards dismissed: [1999] FCA 1726 (French, Heerey and Lindgren JJ, 12 November 1999, unreported); and my reasons for judgment in Arudselvan have also been referred to with approval in a number of subsequent Full Court decisions where I was one of the members of the Full Court: see El Hejjar v Minister for Immigration and Multicultural Affairs [2000] FCA 263 (Sundberg, Katz and Hely JJ, 13 March 2000, unreported) at [12]; Mohammed v Minister for Immigration and Multicultural Affairs [2000] FCA 264 (Sundberg, Katz and Hely JJ, 13 March 2000, unreported) at [14]; and Balan v Minister for Immigration and Multicultural Affairs (2000) 171 ALR 7 at 13, [20] (Drummond, Dowsett and Katz JJ).) I make these general comments because of a number of misconceptions about the operation of the provision which were apparent in the written submissions prepared on the applicant’s behalf.

22                  An applicant who seeks to rely on the ground of review provided for by par 476(1)(g) of the Act must not only persuade the Court that there was no material to justify the making of the decision under challenge.  That applicant must also persuade the Court that there exist either the circumstances set out in par 476(4)(a) of the Act or the circumstances set out in par 476(4)(b) of the Act.  (No burden of persuasion is cast on a decision-maker by subs 476(4) of the Act, contrary to what is implicit in certain of the written submissions prepared on behalf of the applicant.) Paragraph 476(4)(a) of the Act only applies in a situation in which the person who made the decision was required by law to reach that decision only if a particular matter was established.  In other words (and, again, contrary to what is implicit in certain of the written submissions prepared on behalf of the applicant), the case must be one “where the establishment of a particular fact is a precondition in law to the decision”: Television Capricornia Pty Limited v Australian Broadcasting Tribunal (1986) 13 FCR 511 at 515 (Wilcox J); in such a case, the applicant must persuade the Court that there was no material from which the decision-maker could reasonably be satisfied that the particular fact which was a precondition in law to the decision was established.  Paragraph 476(4)(b) of the Act, on the other hand, does not deal with a fact which is a precondition in law to a decision, but rather with any fact on the existence of which a decision-maker based the decision; in a case falling within par 476(4)(b) of the Act, but not within par 476(4)(a) of the Act, the applicant must persuade the Court that the particular fact on the existence of which the decision-maker based the decision did not exist.

23                  Turning now to deal specifically with the applicant’s written submissions, in order for the applicant to succeed in his challenge to the Tribunal’s decision by reason of the statement from its statement of findings and reasons which I am presently considering, it is at least necessary that he should have, within the meaning of par 476(4)(b) of the Act (on which he relied for present purposes), both identified a particular fact on the existence of which the Tribunal based its decision and established that that particular fact did not exist.

24                  Speaking literally, it might be said that the only fact the existence of which was being asserted by the Tribunal in the statement now being focused on was one about its own state of mind, namely, its lack of awareness of the existence of reports of a certain type.  However, it does seem appropriate, as I interpret the written submissions as submitting that I should do, to treat the Tribunal’s statement as though it also contained an implied assertion of fact about the external world, namely, that businessmen did not face treatment such as arrest, imprisonment or detention as the State acted to claim their assets.  Considered in that way, the Tribunal’s finding was one of the non-existence of a fact.

25                  A question immediately arises whether the ground of review provided for in par 476(1)(g) of the Act, when read in light of subs 476(4) of the Act, was intended to apply to findings by the Tribunal of the non-existence of facts, as well as to findings by the Tribunal of the existence of facts.

26                  In Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854 (French, RD Nicholson and Finkelstein JJ, 25 June 1999, unreported), the Full Court drew attention (at [59]) to a question of construction of par 476(1)(g) of the Act on which it found it unnecessary in the circumstances to express a conclusion, namely, whether that paragraph “can apply to a finding that a particular event did not happen”.  Hely J, in Nefiodova v Minister for Immigration and Multicultural Affairs [2000] FCA 179 (28 February 2000, unreported) at [15], and I, in Arudselvan at [62], each noted what the Full Court had said in Yilan, but each also found it unnecessary in the circumstances of the case before him to express a conclusion on the question whether par 476(1)(g) of the Act does apply to findings of the non-existence of facts.

27                  In the present case, I conclude that par 476(1)(g) of the Act does not apply to findings of the non-existence of facts.  In order for the paragraph so to apply, it would be necessary to give an extremely strained construction to the language actually used in it (as well as to the language actually used in both limbs of subs 476(4) of the Act).  Furthermore, there appears to be no reason of policy justifying the giving of such a strained construction to the provision.  The giving of that construction to the provision would appear to amount to a departure from the longstanding distinction made in the law (including in administrative law) between finding a fact to exist when there is no evidence that that fact does exist (which is an error of law) and not finding a fact to exist when there is some evidence that that fact does exist (which is an error of fact only).  Such a strained construction of the provision would thus involve this Court in an intrusion into the merits of the administrative decisions under review by it under the Act.

28                  However, if I be wrong about the conclusion which I have just expressed, the next hurdle facing the applicant in making out the ground of review presently under discussion in respect of the statement presently under discussion is that I should be persuaded by him that, as a matter of fact, businessmen did face treatment such as arrest, imprisonment or detention as the State acted to claim their assets.

29                  In Arudeslvan, I expressed the view (at [71]) that one effect of the decision in Yilan is that where an applicant is seeking to establish for the purpose of par 476(4)(b) of the Act that a particular fact did not exist, he or she can only do so by relying for that purpose on material admissible according to the rules of judicial evidence, even if that material is material which was before the Tribunal when it made its decision.  (No doubt, the position would be the same if an applicant were permitted, contrary to the view which I have already expressed, to seek to establish that a particular fact did exist when the Tribunal had found that it did not.) In order for him to succeed on the ground of review which I am presently discussing, it would therefore be necessary for the applicant to persuade me that the two extracts from the State Department report on which he relies for present purposes were admissible before me as evidence of their truth according to the rules of judicial evidence.  That he has not done (or even attempted to do), an omission which provides a second reason why the ground of review which I am presently discussing must fail.

30                  However, even if I were to ignore the requirement that an applicant satisfy his or her burden under par 476(4)(b) of the Act by material admissible according to the rules of judicial evidence, there is yet a further reason why I would reject the ground of review presently under discussion — the material relied on by the applicant for the purpose is simply not sufficiently persuasive on the factual question whether businessmen faced treatment such as arrest, imprisonment or detention as the State acted to claim their assets.

31                  The statement by the Tribunal the focus of the present ground of review was concerned with the Kabila regime’s treatment of businessmen by reason of their being believed to have acquired wealth corruptly under the Mobutu regime.  However, in so far as the extracts from the State Department report being relied on by the applicant referred to the Kabila regime’s treatment of businessmen, they did not do so in the context of a discussion about the treatment of those businessmen by reason of their being believed to have acquired wealth corruptly under the Mobutu regime.

32                  The relevant part of the first of the two statements in that report, “Incidents of physical abuse by security forces occurred during the arrest or detention of … businessmen”, was followed by the direction “(see Sections 1.d. and 2.a.)”.  When one goes to the sections to which one is directed, the only reference to businessmen one finds in them is in Section 1.d., where there is a reference to the arresting without warrant and the holding in detention without charge for about two months by the police of a single individual “for attempting to make a long distance telephone call to a foreign business executive whose business he represented in the country”.  (No reference is made, incidentally, to any physical abuse of that individual during either his arrest or his detention.) It is apparent, then, that the first of the two statements in the report is of little persuasive force on the question of the taking of steps by the authorities against the persons of businessmen as part of the process of taking steps against their property because that property was believed to have been corruptly acquired under the Mobutu regime.

33                  As to the second of the two statements in that report, I have already set it out in [19] above.  As with the first of the two statements, it likewise provides no real assistance on the question of the methods used by the authorities as they attempted to recover from individuals wealth believed to have been corruptly obtained by them under the Mobutu regime.  In so far as it deals with adverse treatment of businessmen by the authorities, it does so in a context in which it appears that the reason for such treatment was either unknown or was a belief that the persons concerned were rebel supporters.

34                  For all of the reasons which I have given above, any of which would be sufficient for the purpose, I reject the applicant’s challenge to the Tribunal’s decision based on the first of the three statements isolated, in the written submissions prepared on the applicant’s behalf, from the second of the four numbered conclusions of the Tribunal on the “particular social group” issue. 

35                  I turn now to the second of the three statements isolated, in the written submissions prepared on the applicant’s behalf, from the second of the four numbered conclusions of the Tribunal on the “particular social group” issue.

36                  That statement was:

“[T]he first [of the two factors which have led me to conclude that whatever the applicant may face because of his and/or his family’s affluence if he were to return to the DRC does not engage the provisions of the Refugees Convention] is that the extent of harsh treatment (arrest, detention, imprisonment) [of] and reprisals against officials in the Mobutu administration was in my view short-lived and minimal given the extent of the corruption and the theft and squandering of public assets which characterised the Mobutu regime.”

37                  As to that statement, it was again submitted, as with the first statement, that its making by the Tribunal demonstrated that the Tribunal had committed the judicially-reviewable error of making its decision when there was no material to justify its making (par 476(1)(g) of the Act).  However, unlike the case of the attack on the first statement, in which it was submitted that the circumstances set out in par 476(4)(b) of the Act existed, in the case of the second statement, it was submitted that the circumstances set out in par 476(4)(a) of the Act existed.

38                  It was also submitted (on the assumption, no doubt, that the submissions to which I have just referred were rejected) that the Tribunal had failed in its statement of findings and reasons to “detail” or “set out” the material on which it had found that the extent of harsh treatment of and reprisals against former Mobutu administration officials was short-lived and minimal.  It was submitted that such failure amounted to a non-observance of a procedure that was required by the Act to be observed by the Tribunal in connection with the making of its decision.  (The procedure referred to was that in par 430(1)(d) of the Act and its non-observance was said to establish the ground of review created by par 476(1)(a) of the Act.  Paragraph 430(1)(d) of the Act provides that, where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that “refers to” the material on which the findings of fact were based. Paragraph 476(1)(a) of the Act  provides relevantly that a ground of review of a judicially reviewable decision is that procedures that were required by the Act to be observed in connection with the making of the decision were not observed.)

39                  For the purpose of dealing with the submissions which I have set out in the preceding two paragraphs of these reasons, it is necessary that I quote a passage from the Tribunal’s statement of findings and reasons under the heading “RELEVANT INDEPENDENT INFORMATION”.  That passage read,

“Treatment and reprisals against individuals associated with the Mobutu regime who remained in the country after [President] Kabila took power did not take place on a widespread scale although about 40 officials of the former regime were arrested on charges of embezzlement and corruption soon after the ADFL took power in May 1997.  These included a former Zairean [sic] national bank governor, his deputy, former army generals, the secretary-general of the MPR, a former chief executive of a water distribution company and a number of former ministers.  Some were brought to trial in December 1997 on charges of embezzlement of public funds and corruption.  The trials were suspended and twenty-six of them were provisionally released in February 1998 after eight months of imprisonment, after paying a sum of money equal to that which they had allegedly misappropriated.  Others were detained awaiting trial but by April 1998 only about six former officials remained in prison.  The government set up an Office of Ill-Gotten Gains (OBMA) to search for and confiscate assets supposedly belonging to the [S]tate which were illegally obtained by the former elite and Mobutu supporters.  This office has reportedly confiscated businesses worth over $200 million as well as 350 houses and apartments in Kinshasa.  However, according to Human Rights Watch/Africa, in November 1997 it was reported that the extent of abuse by OBMA officials prompted [President] Kabila to order the return of much of the property which had been seized….”

40                  The Tribunal gave a source for that passage, namely, the September 1999 DRC country assessment of the United Kingdom Home Office Country Information and Policy Unit (“the country assessment”).  That country assessment was in evidence before me.  I have examined it and found that the passage from the Tribunal’s statement of findings and reasons which I have just set out is practically a word-for-word repetition of material contained in that country assessment.

41                  One might be forgiven for thinking that the author of the written submissions prepared on the applicant’s behalf had not troubled him/herself to read in its entirety the Tribunal’s (admittedly lengthy) statement of findings and reasons in the present matter or to examine in their entirety the sources given in that statement.  It is not apparent to me how someone who had performed both of those tasks could responsibly have made the submissions of breach by the Tribunal of pars 476(1)(g) and 430(1)(d) of the Act which I am presently discussing.

42                  As to the alleged breach by the Tribunal of par 476(1)(g) of the Act, it is obvious that the author of the written submissions was in error in submitting that the circumstances set out in par 476(4)(a) of the Act existed, for the reason which I have already given as to the scope of the latter provision’s operation (see [22] above).  Nothing in the statement of the Tribunal presently under consideration was a finding of a particular matter the establishing of which was required by the Act as a pre-condition in law to the making of the Tribunal’s decision.  In any event, it is plain that the part of the country assessment relied on by the Tribunal was material which justified the making of the decision by the Tribunal, in so far as that decision was predicated on the short-lived and minimal character of the extent of harsh treatment of and reprisals against officials in the Mobutu administration, so that no breach of par 476(1)(g) of the Act was demonstrated. 

43                  It is further plain that the Tribunal did refer in its statement of findings and reasons to the material which had led it to characterise the extent of that treatment and those reprisals as short-lived and minimal, namely, that part of the country assessment on which it relied, so that no breach of par 430(1)(d) of the Act occurred.  (Incidentally, par 430(1)(d) of the Act does not, as the written submissions prepared for the applicant would have it, require the Tribunal to “detail” or “set out” the material on which its findings on material questions of fact were based; it merely requires the Tribunal to “refer[ ] to” that material.  Paragraph 430(1)(d) of the Act is to be contrasted in that respect with pars 430(1)(a)-(c) of the Act, all of which require things to be set out.  In any event, it might be said in the present matter that the Tribunal did detail or set out the material on which the finding presently under discussion was based, given that it effectively paraphrased that material in its statement of findings and reasons.)

44                  Before I end my consideration of the statement of the Tribunal presently under discussion, I must mention that it was also submitted in the written submissions prepared on the applicant’s behalf that there had been a breach of par 430(1)(b) of the Act in connection with the making of that statement.  That provision required the Tribunal in its statement of findings and reasons to set out the reasons for its decision.  It is not easy to understand from the written submissions how it was being submitted that the Tribunal had breached par 430(1)(b) of the Act, but, construing the written submissions generously, it may be that what was being submitted was that the Tribunal’s duty to give reasons required it to explain why, in reaching its conclusion of the short-lived and minimal character of the extent of harsh treatment of and reprisals against officials in the Mobutu administration, it had acted on certain parts of the country assessment, rather than on the material in the State Department report already referred to above to the effect that “the security forces ‘repeatedly’ raided private businesses and ‘routinely’ arrested or beat the closest family member”.

45                  However, if that was what was being submitted, then I reject it.  The Tribunal’s duty under par 430(1)(b) of the Act did not require the Tribunal to give reasons for acting on that part of the country assessment on which it relied rather than on the statements specifically relied on by the applicant from the State Department report, since nothing in the Tribunal’s statement of findings and reasons suggests that it was rejection by the Tribunal of the correctness of those statements which had led it to accept that part of the country assessment on which it relied: see the joint reasons for judgment of Black CJ and Sundberg, Katz and Hely JJ in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 (30 June 2000, unreported) at [46], [56] and [64].

46                  (I add, incidentally, that it is inherently unlikely that any rejection by the Tribunal of the correctness of those statements would have led it to accept that part of the country assessment on which it relied, since those statements were directed to a different subject matter than that part of the country assessment relied on by the Tribunal.)

47                  I come now to the third of the three statements isolated, in the written submissions prepared on the applicant’s behalf, from the second of the four numbered conclusions of the Tribunal on the “particular social group” issue.

48                  That statement read:

“[T]he policy [of reclaiming assets and so punishing corruption] does not in itself discriminate or persecute for any of the reasons in the Refugees Convention.  There is no evidence that the motivation for the policy to recover assets which were improperly acquired under [President] Mobutu was other than to reclaim assets lost to the [S]tate.”

49                  Again, it was submitted that the grounds of review in pars 476(1)(g) and (a) of the Act were made out against the Tribunal by reason of the passage just quoted.  (In the case of the ground of review under par 476(1)(a), again it was submitted that there had been breaches of pars 430(1)(b) and (d) of the Act.)

50                  Focusing first on the submission that the Tribunal made its decision with no material to justify it, it was said in the written submissions prepared on the applicant’s behalf that “the Tribunal made its decision on the basis of a particular fact which did not exist.  Conversely [sic], the Tribunal did not provide any evidence on which it could substantiate this finding”.  When the author of the written submissions used the word “conversely”, it appears that he/she meant “alternatively” and that the submission which was intended to be made was that the Tribunal had reached its decision on the basis either of the existence of a particular fact which did not exist (par 476(4)(b) of the Act) or of the establishment of a particular matter, in circumstances in which there was no material from which the Tribunal could reasonably have been satisfied that that particular matter had been established (par 476(4)(a) of the Act).

51                  Any suggestion that par 476(4)(a) of the Act could have any relevance in present circumstances was misconceived, for the reason which I have already given above as to the scope of its operation (see [22] above).  Nothing in the statement of the Tribunal presently under consideration was a finding of some particular matter the establishing of which was required by the Act as a pre-condition in law to the Tribunal’s making of a decision.

52                  So far as par 476(4)(b) of the Act is concerned, the situation bears considerable similarities to that which I discussed above in connection with the first statement attacked in the Tribunal’s statement of findings and reasons.  First, the statement presently under attack makes findings of the non-existence of facts.  Secondly, the author of the written submissions points only to material not admissible as evidence of its truth according to the rules of judicial evidence in order to establish the existence of the facts found by the Tribunal not to exist.

53                  There may, however, be a difference between the two situations by reason of the nature of some of the material relied on on the applicant’s behalf in the situation presently under discussion.  That material consisted of statements made in two documents which had been before the Tribunal when it had made its decision.

54                  The first of those two documents was the State Department report to which I have already referred above and the statement in it relied on was one which I have already both quoted and referred to above, namely:

“The security forces repeatedly raided private businesses, including newspapers, banks, and law firms, seizing documents and other property, and arrested and detained employees whom they accused of collaborating with antigovernment forces….”

55                  The second of those two documents was entitled “Guidelines for Refugees and Asylum Seekers from the Democratic Republic of [the] Congo” and had been issued by the United Nations High Commissioner for Refugees in January 1998 (“the UNHCR guidelines”).  That document was one which had been provided to the Tribunal on the applicant’s behalf by the New South Wales Legal Aid Commission.  That document, it may be recalled, was mentioned twice in the second of the numbered conclusions of the Tribunal on the “particular social group” issue (quoted in [12] above).  The statement in it relied on was as follows:

“Private ex-Zairean [sic] prosperous businessmen are suspected by AFDL authoriti[es] of having connived with Mobutu’s regime at economic crimes that have destroyed t[he] national economy.  They are also suspected of having been Mobutu’s political affiliat[ed] supporters who took advantage of that particular relationship in order to grow wealt[hy] at the expense of the nation.  Hence, there are some arbitrary arrested and detaine[d] some totally deprived of their properties which AFDL presumes have been acquired [in] a fraudulent manner.  Most of ex-Zairean [sic] prosperous businessmen have left t[he] country or are hiding with a view to trying to do so (if they are not in jail yet), simp[ly] because AFDL wants to arrest them and seize their goods, but not necessarily becau[se] of their possible political connections with Mobutu’s MPR.  Some of them were n[ot] indeed MPR affiliated members.  They are being found guilty of being rich a[nd] prosperous businessmen and are therefore exposed to political persecutions of AF[DL] which has set up an office of ill-gotten gains.”

(I note that the statement uses the acronym “AFDL” to refer to the same body as that referred to by the Tribunal as the ADFL.  I add that I have used brackets to indicate places in the statement where letters appear to have been missing from the photocopy of the document provided to the Tribunal.  The letters between those brackets are the ones which I have guessed were cut off from the photocopy.  I did attempt to locate a copy of the UNHCR guidelines at the UNHCR Website, but was unsuccessful (site accessed 13 July 2000).  There were available two background papers on refugees and asylum seekers from the DRC, one dated April 1998 (www.unhcr.ch/refworld/country/cdr/cdrdrc.htm) and one dated May 2000 (www.unhcr.ch/refworld/country/cdr/drc0400.pdf).  However, neither of those documents contained any material similar to that which I have quoted above from the UNHCR guidelines, so that neither provided any clue as to the letters missing from the extract.)

56                  There is obviously little of present relevance in the statement which I have quoted from the State Department’s report; on the other hand, however, the statement which I have quoted in the preceding paragraph may be of present relevance.  I say “may be”, because I must confess that I find it rather difficult to understand the statement, which, to my mind, bears all the hallmarks of having been first written in another language (French, perhaps) and then translated into English.

57                  If, contrary to the views which I have already expressed above, par 476(1)(g) of the Act applies to findings of the non-existence of facts and if, also contrary to the views which I have already expressed above, material relied on to prove that a fact found by the Tribunal not to exist does exist need not be admissible as evidence of its truth according to the rules of judicial evidence, then the statement from the UNHCR guidelines may be capable of establishing that the motivation for the policy to recover assets which were improperly acquired under President Mobutu extended beyond merely reclaiming assets lost to the State.

58                  However, in the result (and even assuming that I am in error on the questions whether par 476(1)(g) of the Act does apply to findings of the non-existence of facts and whether material relied on to prove that a fact found by the Tribunal not to exist does exist need be admissible as evidence of its truth according to the rules of judicial evidence), I need not express a concluded view on whether the statement from the UNHCR guidelines persuades me that the motivation for the policy to recover assets which were improperly acquired under President Mobutu extended beyond merely reclaiming assets lost to the State.  That is because, even if the statement did so persuade me, I would nevertheless be of the view that there had been some material before the Tribunal to justify the making of its decision.  I refer in particular to the country assessment already referred to above, which, to my mind, provided some evidentiary support for the Tribunal’s characterisation of the policy and the motivation for it.

59                  Turning now to the submissions that the Tribunal erred by not “detail[ing]” or “set[ting] out” the material on which it based the findings presently under discussion and also erred by not setting out its reasons, I need do nothing more by way of disposing of them than to repeat [43]-[45] above, substituting for the reference in them to the Tribunal’s statement there under challenge a reference to the Tribunal’s statement presently under challenge and substituting for the reference in [44] and [45] to the State Department document a reference to the UNHCR guidelines.

60                  Thus far, I have referred to the first three of the Tribunal’s four numbered conclusions on the “particular social group” issue.  I turn now to the fourth of them.  It was as follows:

“… I accept that the applicant may have been, and may be again if he were to return to his country, a victim of extortion and of crime because he has money and things which others do not have and because corruption [presumably, ‘extortion’ was meant] and crime are pervasive features of life in the DRC.  While I consider that there are circumstances where extortion may amount to persecution, I am not satisfied that this would be so in relation to the applicant.  Apart from the applicant’s own claims, there is no evidence that he would be targeted for such criminal actions because of his race, religion, nationality or political opinion and, even if people who have money and assets in the DRC are regarded as a particular social group and [sic] I do not consider that it is the applicant’s membership of this group which would be the reason for what he may experience.  Rather, the people who may seek to rob or extort money from the applicant would be extracting money from a suitable victim.  The motivation for what might happen in this regard would not in my view be related to any of the reasons in the Refugees Convention because the robbers would be interested in the applicant as an individual.  He may be a victim of such criminal actions but I do not consider that what he might experience would be persecution for a Convention reason.”

61                  The written submissions prepared on behalf of the applicant isolated two statements from the passage which I have just quoted from the Tribunal’s statement of findings and reasons.

62                  The first statement was: “… there is no evidence that he would be targeted for such criminal actions because of his race, religion, nationality or political opinion”.  As to that statement, it was submitted that, in making it,

“… the Tribunal erred as explained in [the submissions concerning] finding 3 above.  The Tribunal made this finding on the basis of a fact which did not exist (s476(1)(g) and 4(b)[)].  Nor did the Tribunal set out the evidence on which this finding was based and therefore erred under s 476(1)(g) and 4(a) and by not complying with s430 and therefore erring under s 476(1)(a).”

63                  What was referred to in the submission just quoted as “finding 3” was the statement from the Tribunal’s statement of findings and reasons which I have quoted in [48] above.  I take the reference in the submission presently under discussion to the Tribunal’s having erred “as explained in” the submissions concerning “finding 3” as having been intended to convey that, in so far as reliance was being placed in making the submission presently under consideration on evidentiary material which had been before the Tribunal, it was the same evidentiary material which had been relied on in the submissions concerning “finding 3”, namely, that material which I have quoted in [54] and [55] above.

64                  For reasons which I have already explained more than once in these reasons, the submission which I have quoted in the next preceding paragraph to the effect that the Tribunal did not “set out the evidence on which this finding was based and therefore erred under s 476(1)(g) and 4(a)” was misconceived.

65                  As to the submission based on par 476(1)(g) of the Act, together with par 476(4)(b) of the Act, doing the best I can to understand that submission, I assume that what was being submitted was that the Tribunal had found as a fact that the applicant would not be targeted for extortion for reasons of his political opinion, when that finding of fact was erroneous, as was established by the statements in [54] and [55] above.  Again, for reasons which I have already explained more than once in these reasons, I reject the submission.  The finding of fact alleged is actually the finding of the non-existence of a fact, the evidentiary material relied on to prove the fact’s existence was not admissible as evidence of its truth according to the rules of judicial evidence, the statement from the State Department report quoted at [55] is not persuasive on the issue under consideration, the statement from the UNHCR guidelines may not be persuasive on the issue under consideration and, in any event the country assessment was some evidence in support of the Tribunal’s conclusion.

66                  As to the submission based on s 430 of the Act, again the submission is predicated on the misconception that par 430(1)(d) of the Act requires material on which a finding is based to be “set out”, when the paragraph merely requires the material to be referred to.  Further, in so far as par 430(1)(d) of the Act imposes any obligation on a decision-maker in respect of a finding of the non-existence of a fact, the Tribunal did, as I have already mentioned above, refer to the country assessment and, indeed, paraphrase its contents.

67                  The second statement isolated in the written submission prepared on behalf of the applicant from the passage from the Tribunal’s statement of findings and reasons which I have set out in [60] above was:

“… even if people who have money and assets in the DRC are regarded as a particular social group and [sic] I do not consider that it is the applicant’s membership of this group which would be the reason for what he may experience.  Rather, the people who may seek to rob or extort money from the applicant would be extracting money from a suitable victim.  The motivation for what might happen in this regard would not in my view be related to any of the reasons in the Refugees Convention because the robbers would be interested in the applicant as an individual.  He may be a victim of such criminal actions but I do not consider that what he might experience would be persecution for a Convention reason.”

As to that statement, it was submitted,

“There was no evidence set out by the Tribunal on which it based its finding that the applicant would be targeted as an ‘individual’ who is a ‘suitable victim’ and not because of his membership of a particular social group.  The Tribunal did not set out the evidence on which this finding was based and therefore erred under s 476(1)(g) and 4(a) and by not complying with s 430 and therefore erring under 476(1)(a).”

68                  Yet again, the applicant’s reliance on par 476(4)(a) of the Act is misconceived, as is the submission that par 430(1)(d) requires a setting out of material on which findings of fact are based.  For those reasons, I reject the submission which I have just set out.

69                  Thus far, I have dealt with the written submissions prepared on the applicant’s behalf as they related to specific statements from the Tribunal’s statement of findings and reasons.  However, I come now to a submission which, although it appeared in the applicant’s document as part of his challenge to the fourth of the Tribunal’s four numbered conclusions on the “particular social group” issue, was actually more general in character and perhaps intended as a summary of all that had gone before.  It was as follows:

“It is submitted that there was sufficient evidence before the Tribunal on which it could make a finding that the applicant had a well[-]founded fear of persecution for reasons of his political opinion and/or membership of a particular social group should he return to [the] DRC.  The Tribunal made findings contrary to the evidence and without referring to the evidence on which her [‘its’ was meant] findings were based and therefore made a series of errors under s 476 of the Act.”

70                  The making of such a submission by the author of the written submissions prepared on the applicant’s behalf betrays, if what had gone before had not already done so, that the author conceived of proceedings in this Court relying on subs 476(1) of the Act as being proceedings in the nature of merits review.  That conception was erroneous and I reject the submission based on it.  Neither the mere fact that there existed sufficient evidentiary material before the Tribunal to permit it to reach a conclusion on any factual matter contrary to the one which it actually reached nor the mere fact that the preponderance of such material supported a conclusion on that factual matter contrary to the one which it actually reached is a ground of review under the Act.

71                  I turn now to the applicant’s complaints about the way in which the Tribunal dealt in certain respects with his claim that he had a well-founded fear of being persecuted for reasons of political opinion.

72                  In order to make explicable the particular complaint with which I am now dealing, it is necessary for me first to refer briefly to some of what appears to be the applicant’s personal history.

73                  It appears that he was born in the DRC in 1971 (shortly before its name was changed to Zaïre).  It further appears that, contrary to what he at first told the Australian immigration authorities (an account which he afterwards admitted had been a fabrication), he resided in Zaïre until late 1996, when he left there and travelled to Canada via Zambia, Zimbabwe, South Africa and the United States of America.  He then resided in Canada until early June 1999 (unsuccessfully applying for recognition as a refugee while there) and then returned to the United States of America.  (It appears that the applicant’s first, fabricated account to the Australian immigration authorities of his personal history had been devised to avoid disclosing that he had unsuccessfully applied for refugee recognition in Canada.) He then travelled to Australia via Kuala Lumpur from Los Angeles, having left the latter on 15 June 1999.

74                  According to the Tribunal, the applicant’s claim to have a well-founded fear of being persecuted for reasons of political opinion was based in part at least on what he told it had been his political activities while resident in Canada.  In its statement of findings and reasons, the Tribunal summarised his account in that respect in the following way:

“In Canada, he was a keen participant in social and sporting activities within the DRC community and, because of his capacity to motivate people, he became involved in information seminars and all demonstrations denouncing the Kabila regime which were organised in Montreal by gathering money and organising transport.  He attended a conference at [a voluntary organisation called] the Schiller Institute in May/June 1997 about the political situation in central Africa and … took part in three demonstrations and a number of smaller gatherings: the first demonstration he took part in was in May 1997 and the second shortly afterwards.  … Ibrahim Ngongo, an ADFL person in Canada, noticed him at the third demonstration he took part in[,] which was against the DRC Minister for Mines in March 1998.  [Mr] Ngongo told him that if he was caught at home (in the DRC), then they (the ADFL) would get him.  This was the first and only such thing which had been said to him. … [T]his March 1998 demonstration was the last demonstration he took part in.  He had not been a member of the UDPS in Canada but the organisation had a major role in the demonstrations and he knew members, including at least one active one.  He provided copies of documents concerning the UDPS in Canada and its activities [the originals of] which he said were among his personal papers left in Canada.  None relate to him in particular. … [H]e had not told the Canadian authorities about his political involvement [when seeking recognition there as a refugee] because he had not thought it necessary [for a number of reasons] including because they were [the Tribunal meant to say ‘it was’] part of his new life in Canada and not part of his life in the DRC.  Because he thought his [Canadian refugee] application would be approved, he did not take [Mr] Ngongo’s threat seriously. … [Mr] Ngongo has written letters for people returning to the DRC to protect them and that he can do this indicates that he can also tell people in the country that a returnee should be harmed.”

(I should note that the written submissions prepared on the applicant’s behalf took no issue with the above as an adequate summary of the applicant’s account before the Tribunal as to his political activities in Canada.)

75                  As to the applicant’s account before it, the Tribunal’s summary of which I have just quoted, the Tribunal said:

“I accept that the applicant … was active in social and sporting activities amongst the DRC community after his arrival in Canada at the end of 1996.  I consider that his failure to mention his participation in political demonstrations in Canada to the Canadian authorities, even at the [refugee] hearing which took place just over three months after he claims to have been spoken to by [Mr] Ngongo in a threatening manner at the demonstration against the DRC Mines Minister, casts some doubt over whether he in fact participated as he claims to have done.  Nevertheless, I am prepared to accept that his involvement in Canada was as he has claimed and that [Mr] Ngongo spoke to him as he has described.  I have reached the following conclusions about the applicant’s claims….

…

·        Second, I have considered the nature and extent of the applicant’s political activities in Canada against the independent information set out above.  He said that he took part in three demonstrations and a number of other smaller gatherings.  The last demonstration he took part in was in March 1998, some fifteen months before he left the country.  Independent information is that there were other events earlier in 1999 but the applicant does not appear to have taken part in these although it is possible that he regarded these as smaller gatherings.  The information about the activities of DRC people in Canada indicates that protests have involved numbers between some dozens and around 200.  The applicant has said that he was never a member of the UDPS in Canada.  I consider that his association with the UDPS in Canada was low level.

·        Third, central to his claim that his political activities in Canada could lead him to face persecution if he were to return to the DRC is the assertion that members of [President] Kabila’s party or government would learn of his activities in Canada, through ADFL people in Canada including Ibrahim Ngongo.  I recognise that the Kabila regime has a network of security agencies and that structures for the local monitoring of the population have been established in the DRC.  However, the applicant was not even a member of [the] UDPS in Canada and his role was limited to organisational aspects of some protests, attending some discussions and drumming up the crowd.  He was only once spoken to in a threatening manner by [Mr] Ngongo, whose remark he did not take seriously at the time and appears to have not mentioned to the Canadian Immigration and Refugee Board even though the hearing about his application took place only around four months after the demonstration at which the remark was made.  He claims that [Mr] Ngongo has been known to provide letters to people returning to the DRC to protect them and speculates that he could therefore send letters saying the opposite.  I consider it very improbable that the applicant’s activities are of a profile which would see them reported back to people in the DRC who may influence what might become of the applicant if he were to return to his country.  That he did not mention his activities to the Canadian authorities in my view supports a conclusion about the limited profile of what he did.

·        Finally, even if the nature and extent of the applicant’s political activities in Canada were to be reported to the DRC as he claims to fear they might be, I have considered whether a person who had done as the applicant has done would be among those UDPS people who face arrest, mistreatment and detention in the DRC.  UNHCR’s January 1998 Guidelines for refugees and asylum seekers from the Democratic Republic of [the] Congo stated that those at risk of persecution included opposition leaders and activists who may be suspected of wanting to resume political activities which were banned by [President] Kabila but did not include sympathisers or members who did not play a substantial role in their party.  The November 1998 Canadian report surveying what followed the outbreak of war in August 1998 stated that there were no reports that party members had been ill-treated, arrested or detained either by the authorities or by rebels simply for belonging to a particular political party although the UDPS leader, [Mr] Tshisekedi, had had his passport confiscated.  Amnesty International reported in January this year that it was aware the twelve UDPS members had been arrested, detained and cruelly treated and the very recently released United States Department of State report on human rights conditions in the DRC during 1999 details a number of cases where individuals involved with opposition parties have been subjected to arrest and detention by the DRC authorities.  Some were detained for hours, others for some days and a few for many months and some were mistreated while in custody.  In the context of the confused state of the DRC and the ban on political activity, there are relatively few reports of UDPS leaders or supporters coming to any harm.  I do not consider that a person with such a limited association with the UDPS [as the applicant had in Canada] would be of interest to the authorities in the DRC even if they were to learn of what he had done in Canada.

…

In view of all of the foregoing conclusions, I do not consider that there is a real chance that the applicant would face persecution in the DRC because of his political opinion…”

76                  The written submissions prepared on the applicant’s behalf focused on what the Tribunal had said in the fourth (and final) of its numbered conclusions regarding the applicant’s claim to have a well-founded fear of being persecuted for reasons of his political opinion and, in particular, on its statement that it did “not consider that a person with such a limited association with the UDPS [as the applicant had had in Canada] would be of interest to the authorities in the DRC even if they were to learn of what he had done in Canada”.

77                  It was first submitted in the written submissions prepared on the applicant’s behalf that the making of that statement by the Tribunal demonstrated that its decision involved an error of law, being an error involving either an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by it: see par 476(1)(e) of the Act.

78                  In support of that submission, reference was made to two matters.

79                  First, reference was made to a report which had been made by Amnesty International in January 2000.  (Coincidentally, in an interesting article by Angus Mitchell, “New Light on the ‘Heart of Darkness’”, December 1999 History Today 20, dealing with the background to and effects of Conrad’s novel, the author (at p. 27) says, “The ideals and action that gave rise to … the efforts to protect indigenous peoples in the Congo … became the foundations upon which current … human rights organisations, including Amnesty International …, were founded.”)  That report (“the AI report”) reported on a visit to the DRC made in August 1999.  According to the report,

“Although security concerns for witnesses and victims of human rights abuses, as well as refusal by the authorities to allow them to visit detention centres, made it difficult to gather information, the organization’s representatives reported a state in which the DRC was intolerant of dissent.  Even real or suspected peaceful dissent is severely repressed with imprisonment, or torture and other forms of cruel, inhuman or degrading treatment.

Dozens of leaders and supporters of opposition political parties are routinely detained for periods ranging from a few days to many months.  Other government critics being targeted include human rights defenders and journalists.  Most of those detained are held without charge or trial, while some are tried and sentenced, usually by a special military court known as the Cour d’ordre militaire (COM), Military Order Court, to long prison terms for their non-violent opposition to the government.  The authorities have also used the military court to punish people accused of economic crimes, such as fraud or illicit dealing in foreign currency, some of whom have been sentenced to death.

Those accused of political offences are routinely subjected to beatings at the time of their arrest and in custody.  Amnesty International representatives received reports of torture, including rape, of detainees.  The carrying out, condoning or ordering of torture against anyone and under any circumstances, even in times of war, is a violation of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the former Zaire [sic] ratified on 18 March 1996.”

80                  Secondly, reference was made to the State Department report to which I have already referred above more than once.  As to that report, it was submitted that it “has an extensive discussion on the arbitrary arrest and detention of people[,] many of which [sic] are those suspected of anti[-]government sentiments or activities.  (see pp 12-22 of the Report)”.  (Obviously, given the length of the extract referred to from the State Department report, I will not set it out verbatim herein.) Specific attention was drawn to the fact that the Tribunal had itself referred to the State Department report, mentioning the cases alluded to in that report of a person who had been arrested “because he wore a T shirt promoting the UDPS” and of persons who had been arrested “because they booed a motorcade carrying [President] Kabila”.

81                  After referring to those aspects of the State Department and AI reports, the author of the submissions submitted,

“The Tribunal erred in her [sic] interpretation of the meaning of “well[-] founded fear’ and/or of ‘persecution’ when she [sic] made the finding that the applicant was not of a sufficiently high profile that he would face persecution on return to the DRC.  Alternatively it is submitted that she [sic] did not apply correctly the facts to the law [no doubt, ‘the law to the facts’ was meant].  The evidence clearly indicates that anyone suspected of anti[-]government sentiments risks being arbitrarily arrested and detained.  The evidence indicates that detention and beating at arrest or in detention is ‘routine’.  It therefore indicated [sic] that if the applicant were to be suspected of having anti[-]government sympathies he would face a real chance of being arbitrarily arrested, beaten and arbitrarily detained.  The Tribunal was then required to make a finding as to whether such mistreatment constitutes persecution.”

82                  It is manifest that, as with much else in the written submissions prepared on the applicant’s behalf, the submission just quoted was an attempt to dress up in the guise of a judicially-reviewable error a mere disagreement with a factual finding of the Tribunal.

83                  In any event, the extracts from the AI and State Department reports relied on in the written submissions as making good the claim of judicially-reviewable error (see [79] and [80] above) were directed to a different issue than the one with which the Tribunal was dealing when it made the statement presently under consideration.  Those extracts were concerned with the consequences in the DRC for persons who were currently engaged in political activity inside the DRC, whereas the Tribunal was dealing, when it made the statement presently under consideration, with the consequences in the DRC for a person who had formerly been engaged in political activity outside the DRC.  That the Tribunal’s statement is to be so understood is emphasised by the fact that, after making the statement presently under consideration, the Tribunal then went on to consider whether the applicant was likely to engage in political activity in the DRC if he were to return there.  The Tribunal’s conclusion on that matter was that “it is improbable that he would seek to be involved in political activity of a kind which might attract the adverse attention of the DRC authorities if he were to return to the DRC”.  That conclusion is one, incidentally, as to which the written submissions prepared on the applicant’s behalf did not submit that it manifested judicially-reviewable error.

84                  As well as its being submitted that the making by the Tribunal of the statement that it did “not consider that a person with such a limited association with the UDPS [as the applicant had had in Canada] would be of interest to the authorities in the DRC even if they were to learn of what he had done in Canada” established the ground of review set out in par 476(1)(e) of the Act, it was also submitted that the Tribunal had, in connection with the making of that statement, breached its obligations under pars 430(1)(b) and (d) of the Act.

85                  As to par 430(1)(d) of the Act, it was (again) incorrectly submitted that that paragraph required a “sett[ing] out” of the material on which the Tribunal’s statement was based.  As to par 430(1)(b) of the Act, it was again (incorrectly) submitted that that paragraph had required the Tribunal to explain why it had not acted on the material identified in the written submissions as “contradicting” the Tribunal’s statement.  For reasons equivalent to those which I have already given (see [45] above), there was no such duty.  In any event, as I have already pointed out (see [83] above), the material identified in the written submissions did not contradict the Tribunal’s statement, having been directed to a different issue.

86                  Having now rejected all of the submissions made in the written submissions prepared on the applicant’s behalf, I will order that his application for review be dismissed.  He must pay the costs of the proceeding, apart from the costs thrown away by reason of the late filing and serving of the written submissions prepared on the applicant’s behalf.  If the Minister wishes to pursue the making against the New South Wales Legal Aid Commission of an order for those costs, he must do so within seven days of the date of delivery of these reasons.

Associate:

Dated:              26 July 2000