FEDERAL COURT OF AUSTRALIA

Chhour v Minister for Immigration and Multicultural Affairs [2001] FCA 911

MIGRATION – review of decision of Refugee Review Tribunal – whether decision based on particular fact which did not exist – whether Tribunal failed to consider applicant’s claim as refugee sur place – whether Tribunal failed to set out findings on material questions of fact – whether Tribunal identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material.

Migration Act 1958 (Cth) Pt 8, ss 430(1), 476(1)(a), 476(1)(b), (c), (e), (g), 476(4)(b)

Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 220-221 applied

Inderjit Singh v Minister for Immigration and Multicultural Affairs [1998] FCA 1366 referred to

Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480 referred to

Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 962 referred to

Guden v Minister for Immigration and Multicultural Affairs (2000) 58 ALD 352 referred to

Charaev v Minister for Immigration and Multicultural Affairs [2000] FCA 865 referred to

Indatissa v Minister for Immigration and Multicultural Affairs [2000] FCA 1119 referred to

Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [26] to [28] applied

Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 at [35], [36]-[40] applied

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 22 applied

Minister for Immigration and Multicultural Affairs v “X” [2001] FCA 858 at [18] referred to

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 not followed

Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832 at [21] referred to

Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736 at [15] referred to

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 29 at 39-42 referred to

Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 referred to

SOKUN CHHOUR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V384 OF 2000

WEINBERG J

17 JULY 2001

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application for review be dismissed.

2.                  The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     This is an application under Pt 8 of the Migration Act 1958 (Cth) (“the Act”) to review a decision of the Refugee Review Tribunal (“the RRT”) made on 5 May 2000.  By that decision the RRT affirmed a decision by a delegate of the respondent not to grant the applicant a protection visa.

Background

2                     The applicant is a thirty-three year old Cambodian national.  He arrived in Australia on 4 February 1997.  He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 19 January 1998.  That application was rejected by a delegate of the respondent on 5 February 1998.  The applicant then sought review of that decision by the RRT.  On 5 May 2000 the RRT affirmed the decision not to grant the applicant a protection visa.

The applicant’s claims

3                     The applicant’s claims may be summarised as follows.  He had been separated from his parents during the Pol Pot regime when he was eight years old.  He was forced to labour until he commenced secondary school in Phnom Penh in 1980.  He attended secondary school until his graduation in 1985.  Thereafter he was forced to “enrol” with the Cambodian People’s Party (CPP), a political party closely aligned with the Vietnamese Communist Government which was, and still is, led by Hun Sen.  He was sent to a military academy, and then to Russia, to train as a pilot.  After a year he was transferred to train as an engine technician.  He returned to Cambodia in December 1989 and was stationed at Pochentong airforce base which was located at the national airport in Phnom Penh.

4                     The applicant accepted that he had not, at that stage, done anything to suggest that he might be opposed to the CPP.  He claimed, however, that he had become dissatisfied with that party after his return from Russia.  He claimed that he had become a vocal opponent of government policy, and that he had been punished “without reason” as a consequence.

5                     The applicant said that in 1990, after endeavouring to persuade other members of the airforce to oppose the Vietnamese backed groups, he deserted and went to a camp located on the Thai-Cambodian border.  He claimed that he had managed to conceal his identity while based at that camp. 

6                     The applicant said that the camp was the headquarters of the royalist Funcinpec party, then headed by Prince Ranariddh.  He said that, while at the camp, he became sub-commandant of the Intelligence Bureau, describing himself as having been a “spy”.  He returned to Cambodia proper in 1991 when he thought it safe to do so.  By that stage United Nations forces were present in the country.  He resumed his career in the airforce and continued training as a pilot. 

7                     The applicant said that as the opportunity arose he campaigned actively against Hun Sen and in support of Funcinpec.  He became a member of the Propaganda Committee of Funcinpec, attending several meetings of that committee each week, as well as training sessions.  He distributed pamphlets and spoke against Hun Sen, and also against the CPP, at public meetings in villages around Phnom Penh. 

8                     The applicant said that after Funcinpec’s success in the national elections in May 1993 he remained at Pochentong airforce base. He said that one or two years later he became a pilot in the Royal Cambodian Airforce, rising to the rank of Captain.  He explained that every senior position had a leader appointed from Funcinpec, the CPP and a third political party, the KPNLF.  As Captain, representing Funcinpec, he had two vice-captains, one from each of the other two parties.  He said that a great deal of tension existed between himself and his two vice-captains.  He believed that Major-General Phan Ngoun, a CPP official and adviser to Hun Sen, was kept regularly informed of his activities by the CPP leader who was his vice captain.  He said that he reported to another Airforce Major-General who was also a Funcinpec supporter.  He claimed that he often informed upon CPP personnel. He said that by reason of his role as an informer, he believed that he had been targeted for assassination. He claimed that when he learned of a plan to have him assassinated, he obtained permission to visit his relatives abroad. 

9                     As noted earlier the applicant arrived in Australia on 4 February 1997.  He was able to have his temporary visa extended when it expired a month later, and extended further at a later stage.

10                  The applicant claimed that he was shocked to discover, in June 1997, that Hun Sen had been responsible for a coup.  He said that he had spoken to his wife on a number of occasions after that, and that she had informed him that members of the CPP had come to their house to look for him.  She also told him that she had learned that a number of Funcinpec members at the airforce base at Pochentong airforce base had been arrested and subsequently executed. 

11                  The applicant said that his wife had died in May 1998. He claimed that her death was the apparent result of heart failure and that it was his belief that it had been brought about in part by the pressure under which she had been placed.

12                  The applicant raised for the first time at the hearing before the RRT a new claim.  He said that the reason he had fled Cambodia was because the Minister of Defence, who was a member of the CPP, intended to harm him.  That was because of an incident which had occurred in May 1996, when he was sent on a mission to Sihanoukville to intercept a group of illegal timber traders.  He said that he had arrested two men and had also confiscated their boat.  These two men, and those responsible for having organised the illegal venture, were supposedly connected with the CPP.  The applicant’s interference in their affairs, and his seizure of their boat, had cost them a great deal of money.  They had sought to recover the boat, but Funcinpec officials had refused to return it.  The applicant said that he went into hiding almost immediately after this incident. He claimed that he was close to Prince Ranariddh who warned him that his life was now in danger as a result of his involvement in the affair.  He said that it was in response to Prince Ranariddh’s warning that he obtained a passport, and a visa to enter Australia, and fled Cambodia.

13                  When asked by the RRT why he had not previously mentioned anything about having been involved in this incident, the applicant claimed that he had not appreciated its importance until a friend had pointed that out to him.

14                  Before the RRT, the applicant called a Mr Van Dy Rek, to support his version of the events of May 1996.  Mr Van Dy said that he had accompanied the applicant in May 1996 on a mission to intercept timber traders.  He said that the mission had been carried out at the behest of the Funcinpec leaders.  However, his version of that incident differed in several important respects from the version given by the applicant.  Mr Van Dy said that the boats that were intercepted were carrying what he described as “legal timber”, but tax had not been paid to the relevant authorities.  Instead the money had gone to an “organiser” connected to the CPP.  He said that he had no idea what had happened to the money after it was collected, but he was aware that there had been trouble.  He claimed that he himself had been followed and abused while in Cambodia.  He said that he had been further abused by CPP agents after his arrival in this country.

15                  In the applicant’s written submissions to the RRT he claimed that there were highly placed officials in the Cambodian army who were still bitter towards him.  One of these was Major-General Phan Ngoun, the officer in charge at Pochentong airforce base.  He claimed that he had previously informed the authorities in Cambodia that Major-General Ngoun was involved in illegal logging.  He also claimed that the Minister for Defence, the two men whom he had arrested in May 1996, and others who had lost money as a result of what he had done, were all still intent on harming him if he returned to Cambodia.

16                  The applicant claimed that his fears were exacerbated by the fact that, after his arrival in Australia, he had become involved in the Cambodian pro-democracy movement.  He said that he had associated with certain well-known pro-democracy activists, including a Mr Sam Rainsy, the leader of a political party in Cambodia.  He claimed that he had maintained his membership of Funcinpec, and that he had continued to attend meetings of that party, and of Mr Rainsy’s party, in this country.  He claimed that his photograph had been depicted in various Australian newspapers showing him attending political gatherings of these parties.  He said that although opposition leaders such as Prince Ranariddh and Mr Rainsey had returned to Cambodia in recent years, and Prince Ranariddh shared power with the CPP in his capacity as President of the National Cambodian Assembly, the situation in that country remained unstable, and could erupt at any time.  He claimed that some high profile Funcinpec leaders, and leaders of some pro-democracy parties, were protected by the United Nations, but others, including “grass roots” members, were at risk.  Those “grass roots” members had no protection whatsoever.  He claimed that he was particularly at risk because of his military background and because of his knowledge of the CPP’s illegal activities.  He claimed that he was especially vulnerable because of what he had done in May 1996.

17                  In summary, the applicant claimed that any semblance of democracy and equal participation in government between the CPP and Funcinpec was wholly illusory.  The reality was that Hun Sen alone wielded total power in Cambodia.  Major-General Ngoun was now a senior political figure in the CPP.  In these circumstances the applicant faced a “real chance” of persecution if he were required to return to Cambodia. 

The relevant legislative framework

18                  The prescribed criteria for the grant of a protection visa are set out in Pt 866 of Sch 2 of the Migration Regulations 1994.  One such criterion is that at the time of the application the applicant be a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (“the Convention”). 

19                  Art 1A(2) of the Convention provides that a person is a refugee who:

“…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country…”.

20                  The RRT in its reasons for decision set out each of the relevant legislative provisions which bore upon the applicant’s claim.  It also referred to several of the leading authorities relating to these provisions.  The applicant did not challenge the RRT’s analysis of the principles laid down by these authorities.

The RRT’s findings

21                  The RRT accepted that the applicant was a Cambodian national and that he was outside the country of his nationality.  It also accepted that he had been separated from his family during the reign of Pol Pot, that he had subsequently completed secondary school and then been sent to undertake pilot training in Russia. 

22                  The RRT expressed doubts about the applicant’s claim to have become a vocal critic of the government immediately upon his return from Russia.  It also expressed doubts about his claim to have deserted from the airforce.  However, it accepted his claim to have left Phnom Penh and gone to the camp on the Thai/Cambodian border.  It also accepted his claim to have become a member of Funcinpec and to have assisted that party during the 1993 election campaign.

23                  The RRT then turned to consider the applicant’s claim to having participated in the arrest of the two CPP members, and in the confiscation of “their two boats” in May 1996.  It noted that this claim had been raised for the first time during the course of the hearing before it, notwithstanding the fact that the applicant had been represented before the delegate by experienced and competent specialist practitioners.  The applicant had explained that he had not mentioned this incident at an earlier stage because he had not appreciated its importance, but the RRT rejected that explanation. 

24                  The RRT noted that there it had taken the applicant almost twelve months to claim asylum after his arrival in this country.  The applicant claimed that he had been unaware that he could apply for a protection visa.  The RRT rejected that claim, noting that he had managed to discover how to extend his visitor’s visa, which he had done on two occasions. 

25                  The RRT found that there was a further reason to disbelieve the applicant’s claim regarding the May 1996 incident.  His account of that incident differed significantly from the account given by Mr Van Dy.  The applicant said that the boats had been intercepted because they were carrying illegal timber.  Mr Van Dy, on the other hand, said that the boats were intercepted because tax had not been paid on their cargo. 

26                  The RRT said that it was implausible that a pilot stationed at an airforce base in Phnom Penh would have been sent on a mission to intercept people engaged in smuggling timber on a river near Sihanoukville. 

27                  Although it accepted the possibility that there may have been an incident of the type described, which may have involved Mr Van Dy, the RRT rejected the applicant’s claim that he had participated in that incident.  It followed that it also rejected his claim that he had been targeted by the Minister of Defence, or by anyone else associated with, or affected by, that incident.

28                  Having rejected the applicant’s claim to have been involved in the May 1996 incident, the RRT said that it was nonetheless prepared to accept that he had, from time to time, reported illegal activities on the part of CPP officials to his superiors.  However, it noted that nothing appeared to have come of these reports.  The RRT considered that it was significant that the applicant had been able to pursue his career as a pilot without apparent hindrance.

29                  The RRT considered it to be somewhat curious that the applicant claimed to have been issued with a passport in about August 1996, but had not used it to leave Cambodia until late January 1997. 

30                  The RRT summarised its conclusions in relation to the applicant’s claims regarding his activities in Cambodia in the following terms:

“If the applicant was of any interest to his political enemies, the Tribunal is satisfied they had ample opportunity to harm him, but chose not to do so.  The Tribunal finds that when he left Cambodia he was not of any adverse interest to members of the CPP, despite his activities with Funcinpec, his known criticisms of Hun Sen and his supporters and his reports that the CPP was involved in illegal activities.”

31                  The RRT then dealt with the applicant’s claims concerning the risks which he said he faced by reason of his political activities after his arrival in this country.  It said:

“The Tribunal accepts that the applicant has maintained his connections with Funcinpec in Australia and participates in activities with that group.  A few months after he left Cambodia there was a coup orchestrated by the CCP [sic] against Funcinpec.  Despite attacks on Funcinpec members in Cambodia and his participation in Funcinpec activities in Australia, it did not provoke the applicant into seeking permanent protection, notwithstanding his claim that he had been waiting since his arrival in Australia to see if things improved.”

32                  Finally, the RRT outlined a body of “country information” relating to the situation in Cambodia which, it concluded, indicated that the situation in that country had improved in recent times.  It noted that Funcinpec members were now openly involved in political processes in Cambodia.  As at March 1999 there was no indication of any retaliation against returnees to Cambodia.  People who were politically active at various levels during the earlier election campaign had been able to return – both from overseas and from Phnom Penh – to their villages and communes.  This included Funcinpec-aligned members of the security forces. 

33                  The “country information” to which the RRT referred included the following observation:

“Looking to the future, it is the view of the COHCHR that FUNCINPEC members and supporters are unlikely to be targets for harassment or violence.  FUNCINPEC is now part of the governing coalition and the CPP is genuinely keen to maintain cooperation with its junior partner.”

34                  The RRT summed up the position regarding the “country information” as follows:

“On the basis of the information before it, the Tribunal concludes that Cambodia is a relatively lawless country that experiences a certain amount of random and criminal violence.  There is some political violence, but ordinary members of Funcinpec, such as the applicant, do not face a real chance of persecution for reason of their political opinions.  While some leaders of that group may be harassed there is no evidence to support a conclusion that members who joined in 1990 and contributed to the 1993 election campaign as described by the applicant and subsequently allied themselves with Funcinpec face a real chance of being persecuted.  It is apparent that Funcinpec members and supporters openly pursue their political aims in Cambodia. …”

35                  The RRT then concluded its reasons for rejecting the applicant’s claim:

“Notwithstanding that there may still be some internal tensions and rivalries within the coalition and some people affiliated with those groups encounter serious harm from time to time, in all of the circumstances the likelihood that the applicant might be persecuted for reason of his affiliation with Funcinpec and the airforce, or for any other Convention reason, has become even more remote than it was when he left his country of nationality.”

The application for review to this Court

36                  The amended application for review to this Court contained four grounds of review:

“1.      In breach of s 476 (1)(g)(4)(b) [sic] there was no evidence or other material to justify the making of the decision in that the Tribunal based its decision on the existence of a particular fact which did not exist.

(i)                 the fact that the evidence of the applicant and that of the applicant’s witness regarding the nature of and the reasons for the operation involving the confiscation of two logging boats was not the same or to the same effect or involved a contradiction, alternatively the fact that the applicant’s and his witness’s evidence concerning the purpose of the operation was significantly different it being concerned with the carrying on of illegal timber compared with the non-payment of tax on timber carried.

2.                 The decision involved an error of law being an incorrect interpretation of the applicable law contrary to s 476(1)(e) of the Act.

Particulars

The Tribunal misinterpreted the law relating to the definition of refugee for the purposes of the Act.

(i)                 It failed to properly interpret and/or apply the test of well-founded fear of persecution that it did not deal with the issue of the Applicant’s sur place claim of a well-founded fear based upon his broader political associations and activities outside of Cambodia since his flight involving Sam Rainsy’s party in addition to FUNCIPEC and  the real chance of persecution he might suffer by reason of these affiliations separately and cumulatively.

(ii)               It failed to properly interpret and/or apply the test of well-founded fear of persecution in that it assessed or evaluated the Applicant’s claims on the basis that he was merely a supporter or ordinary member of FUNCINPEC whereas the basis of his claims which were not rejected were that he had close links to the upper echelons of the party including the party leader Rannariddh.

3.         The decision involved an error of law being an incorrect application of the law to the facts as found by the Tribunal contrary to s476(1)(e) of the Act.

Particulars

The Tribunal misapplied the law relating to the definition of refugee for the purposes of the Act.

(a)                The applicant refers to and repeats the particulars subjoined to paragraph 2.

4.                 A procedure that was required by the Act to be observed in connection with the making of the decision was not observed contrary to s 476(1)(a) in that the Tribunal failed:

(i)                 to set out its reasons and/or

(ii)               set out its findings on material questions of fact and/or;

(iii)             refer to the evidence or any other material on which the findings of fact were based

relevant to the issue whether the applicant had a well-founded fear of persecution, pursuant to s 430 of the Act.

Particulars

(i)                 it failed to deal with of [sic] the Applicant’s sur place claim of a well-founded fear based upon his broader political associations and activities outside of Cambodia since his flight involving Sam Rainsy’s party in addition to FUNCIPEC, and  the real chance of persecution he might suffer by reason of these affiliations separately and cumulatively.

(ii)               It failed to deal with the issue of the Applicant’s well-founded fear of persecution based upon his close links to the upper echelons of FUNCINPEC including the party leader Ranariddh.”

Ground 1 - the “no evidence or other material” ground

37                  The applicant submitted that the RRT had based its decision on the existence of a particular fact which did not exist – namely that there was a significant discrepancy between the account which the applicant gave to the RRT concerning the May 1996 incident, and the account given by Mr Van Dy.

38                  It was submitted that, contrary to the findings of the RRT, the account given by the applicant concerning that incident was substantially the same as that given by Mr Van Dy.  It was submitted that the RRT had adopted a somewhat idiosyncratic view of what constituted “illegal logging”.  Any discrepancy between the applicant’s version of that incident, and that given by Mr Van Dy, was more apparent than real.  It was submitted that the RRT had failed to make allowance for the obvious difficulties which Mr Van Dy had with the language, and his inability to perceive a distinction between “illegal timber” and timber which had not been the subject of tax.

39                  Counsel for the applicant argued that had the RRT not concluded that there was a significant discrepancy between the two accounts, it may not have rejected the applicant’s version of events.  He relied on the decision of the Full Court in Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 where Black CJ (with whom Spender and Gummow JJ agreed) said at 220-221:

“If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact…

Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision.  A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision.  A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance.  A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.

If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact.  Accordingly, I agree with the conclusion of Lee J in Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 374 that there is no reason to read s 5(3)(b) in a way that would limit its operation to a predominant reason for the decision under review.” 

40                  Curragh turned upon the construction of ss 5(1)(h) and 5(3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) rather than ss 476(1)(g) and 476(4)(b) of the Act.  However, it has long been established that the principles endorsed by the Full Court in that case are applicable to those provisions: Inderjit Singh v Minister for Immigration and Multicultural Affairs [1998] FCA 1366; Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480; Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 962; Guden v Minister for Immigration and Multicultural Affairs (2000) 58 ALR 352; Charaev v Minister for Immigration and Multicultural Affairs [2000] FCA 865; Indatissa v Minister for Immigration and Multicultural Affairs [2000] FCA 1119; and Minister for Immigration and  Multicultural Affairs v Indatissa [2001] FCA 181.

41                  In Minister for Immigration and Multicultural Affairs v Indatissa a Full Court comprising Sundberg, Emmett and Conti JJ observed at [26] to [28]:

“There are three requirements for establishing the ground of s 476(1)(g), as qualified by s 476(4)(b).  The first requirement, to be found in s 476(1)(g) itself, is that there was no evidence or other material to justify the making of the decision.  The second requirement, as found in the first limb of s 476(4)(b) is that the decision under review is based on the existence of a particular fact.  The third requirement, found in the second limb of s 476(4)(b), is that that fact did not exist.  Unless each of those requirements is satisfied, the ground is not be made out.

It is not sufficient simply to establish the two matters referred to in s 476(4)(b).  That paragraph qualifies s 476(1)(g).  It does not constitute a definition of what will amount to there being no evidence or other material to justify the making of the relevant decision.  That is to say, it is not sufficient to show that a decision was based on the existence of a particular fact and that that fact did not exist.  If that was sufficient, any decision of a Tribunal based on the existence of a particular fact could be challenged in the Federal Court by adducing evidence designed to persuade the Federal Court to reach a different conclusion concerning the existence of that fact.  Such an approach is demonstrably unsound.  It is beyond question that the power of the Court under s 476(1) generally and s 476(1)(g) in particular does not extend to a re-examination of any of the factual matters ventilated before the Tribunal.

In other words, it is only if it can be shown that there was no evidence or other material to justify a decision that it is necessary to consider s 476(4).  If there is before the Tribunal any evidence or material capable of supporting the particular fact on the existence of which the decision is based, the ground cannot be made out.”  (emphasis added)

42                  The reasoning of the Full Court in Indatissa is sufficient, by itself, to dispose of the applicant’s first ground of review.  Even if it be the case that the supposed discrepancy between his account of the May 1996 incident, and that given by Mr Van Dy, did not exist, and even if that discrepancy can be characterised as “a particular fact” which did “not exist”, s 476(1)(g), taken together with s 476(4)(b), requires, as a first step, that the decision of the RRT be “based … on the existence of” that particular fact.  In addition, there must be “no evidence or other material to justify the making of the decision” in order for this ground to be made out.  Provided there is before the RRT “any evidence or material capable of supporting the particular fact on the existence of which the decision is based”, there is evidence to “justify” the making of the decision. 

43                  Turning to the first of the conditions which the applicant must satisfy to make good this ground of review, it is difficult to see how it can be said that the RRT relevantly “based” its decision on the existence of the supposed discrepancy.  No doubt the existence of that discrepancy was a matter which it took into account in rejecting the applicant’s claim to have been involved in the May 1996 incident.  However, it was hardly “critical” to the decision, whether in a causative, or any other sense.  

44                  Recently, in Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 a Full Court, comprising Sundberg Emmett and Finkelstein JJ, expanded somewhat upon the reasoning of the Full Court in Indatissa, saying at par [35]:

“The application of s 476(1)(g) and s 476(4)(b) in any particular case requires the following steps:

·                     A relevant particular fact must first be identified.

·                     Then it is necessary to determine whether there was any evidence before the Tribunal to justify  a finding of that fact. If there was such evidence, the ground cannot be made out.

·                     If there was no such evidence, it is next necessary to apply the second limb of (4)(b). If there is no evidence, on review, to show that the fact did not exist, the ground cannot be made out.

·                     If there is evidence, on review, to show that the fact did not exist, it is then necessary to apply the first limb of (4)(b). That requires an analysis of the Tribunal’s reasoning to determine whether the decision was based on that fact.”

45                  Their Honours went on to say at pars [36] to [40]:

“… Section 476(1)(g), as qualified by s 476(4)(b), is capable of having application in relation to a finding of credit.  For example, if a tribunal rejected a visa applicant’s evidence because it attributed to that applicant the claim that event “A” happened, when there was other evidence showing that event “A” did not happen, the Tribunal might reject that applicant’s evidence as not credible.  If that applicant, by examination of the transcript upon which the tribunal relied, can show that he or she did not say that event “A” happened, the ground of review may well be made out.  The particular fact which was shown not to exist in that example is that the applicant claimed that event “A” happened – Minister of Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023 paragraph [21]. …

A decision may be based upon the existence of many particular facts.  It will be based upon the existence of each particular fact that is critical to the making of a decision.  A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that it is of more obvious immediate importance.  If a decision is in truth based, in that sense, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed, whatever the relative importance of the fact.  There is no reason to read s 476(4)(b) in a way that would limit its operation to a predominant reason for the decision under review – Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221.

The reasons of the primary judge included the following passage:

“That is, in my view, the assumed facts were critical to the making of the Tribunal’s decision in that there was a tangible link between one or more of the assumed facts and each of the two considerations which led to the Tribunal’s decision, and the assumed facts contributed significantly to the Tribunal’s decision.  That is, as a matter of common sense, there was a sufficient causal link between the Tribunal’s belief in the assumed facts and the Tribunal’s decision for the decision to be based on the existence of the assumed facts within the meaning of s 476(4)(b) of the Act.”

The emphases are ours.

It is sufficient to demonstrate that the relevant fact played a part in the process of reasoning of the Tribunal in the sense that the fact is one without which the Tribunal would not have reached the conclusion that it did.  However, it is not sufficient to say only that the link between the fact and the decision is tangible and that the assumed existence of the fact contributed significantly to the ultimate decision.  It is not a matter of causation and is not therefore to be determined just by the application of common sense.  The primary judge erred in so far as that approach was adopted.”

46                  In my opinion, the RRT “based” its decision to reject the applicant’s claim in the present case upon a wide range of factors.  Some of the matters which it took into account in arriving at its decision went directly to his credibility.  Others went to whether or not his claim could, in any event, be made out.  On any view the finding that there was a discrepancy between the applicant’s account, and that given by Mr Van Dy was not relevantly “critical” to the making of the decision.  It was at best a matter of secondary importance. 

47                  Even if I am wrong about whether the RRT based its decision upon the alleged discrepancy, there was, in any event, ample evidence and other material before the RRT upon which to justify its decision.  It was plainly entitled to reject the applicant’s version of what had occurred in May 1996.  It was entitled therefore to reject his claim as a whole. 

48                  It follows that ground 1 must be rejected.

Grounds 2, 3 and 4 - the sur place grounds

49                  The applicant submitted that the RRT had failed to deal properly with his sur place claim, which was based upon his political associations, and his activities, after his arrival in this country.

50                  It was submitted that the applicant’s involvement with the anti Hun Sen movement, particularly the Rainsy party, had been raised specifically in support of his claim in both the final paragraph of his statutory declaration of 6 January 1998, and in a further statutory declaration dated 10 April 2000.  It was submitted that these aspects of his claim had been largely ignored by the RRT, and that this failure to address them amounted to a breach of ss 430(1) and 476(1)(a) of the Act.

51                  It is well-established that a person can become a refugee sur place because of a fear of persecution arising out of events occurring in their country of origin after their departure, or as a result of the person’s activities outside that country.  The UNHCR Handbook describes a refugee sur place in this way:

“ A person may become a refugee “sur place” as a result of his own actions, such as associating with refugees already recognised, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person’s country of origin and how they are likely to be viewed by those authorities.”

52                  It has become something of a contentious issue as to whether the sur place doctrine may be invoked by a claimant who, after arriving in Australia, engages in conduct for the purpose of enhancing his grounds for a refugee claim – M Crock, Immigration and Refugee Law in Australia (The Federation Press, Sydney, 1998) at 153.  However, there is no suggestion that the applicant in the present case undertook political activities in this country for that purpose

53                  The first issue raised by the applicant in support of the sur place grounds of review was whether the RRT had properly considered his sur place claim, and complied with its obligations under s 430(1) of the Act.   The second issue raised was whether, even assuming that it failed to comply with those obligations, that gives rise to a ground of review under s 476(1)(a) of the Act. 

54                  When this application was argued before me, the law on this point seemed clear.  It was that a failure to comply with the requirements of s 430(1) was capable of amounting to the ground of review contained in s 476(1)(a) – namely that procedures that were required by the Act to be observed in connection with the making of the decision were not observed: Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469. 

55                  After judgment was reserved on this application the High Court handed down its decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.  The Court allowed the Minister’s appeal and overruled the decision in Singh.  The majority held that s 430(1)(c) of the Act (which requires the RRT when it makes its decision on a review to prepare a written statement that “sets out the findings on any material questions of fact”) requires the RRT to set out only such findings as it has made, and not findings on what the Court might regard as objectively determined material questions of fact.  In addition, the majority held that a determination that the RRT had not made a finding of fact on a material question would not amount to a failure to observe a procedure required by the Act for the purposes of s 476(1)(a). 

56                  After Yusuf was decided the parties were given leave to file further submissions in relation to the sur place grounds.  Both parties took advantage of that opportunity.  It is clear that the applicant’s fourth ground of review can now no longer be considered viable in the light of that judgment. 

57                  I note, however, that the majority in Yusuf recognised that a failure on the part of the RRT to make a finding on a material issue might fall within ss 476(1)(b), (c) or (e) of the Act.  See Yusuf at 22 per McHugh, Gummow and Hayne JJ.  See also Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832 per Moore, Tamberlin, and Goldberg JJ at par [21]; Minister for Immigration and Multicultural Affairs v “X” [2001] FCA 858 per Black CJ, Lee and Merkel JJ at [18].

58                  The effect of Yusuf is that if the RRT has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material, it may be said to have exceeded its authority or powers, or to have erred in law.  However, there is nothing in Yusuf to suggest that the existing scope of judicial review for jurisdictional error has been enlarged:  Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736 at [15].  It must be remembered that a consideration is not “relevant” for this purpose unless the decision-maker is bound to take it into account:  Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 29 at 39-42.

59                  In my opinion, it cannot be contended that the RRT identified a wrong issue, asked itself a wrong question, ignored relevant material or relied on irrelevant material when it dealt with the applicant’s sur place claim.  The RRT summarised the applicant’s claim accurately, describing that claim in the following terms:

“[The applicant’s] fears are exacerbated because since he came to Australia he has demonstrated for democracy in Cambodia and has associated with well-known democracy activists, such as Sam Rainsy.  He had maintained his membership of Funcinpec and attends its meetings as well as meetings of Sam Rainsy’s party, as they have similar agendas.  His photograph has appeared in newspapers, showing him at political events in Australia.”  (emphasis added)

60                  The RRT found as a fact that the applicant had maintained his connections with Funcinpec in Australia, and that he had continued to participate in activities with that group.  It found also that he had associated with well-known democracy activists such as Mr Sam Rainsy.  Notwithstanding the fact that a few months after the applicant left Cambodia there had been a coup orchestrated by the CPP against Funcinpec, the RRT concluded:

“Despite attacks on Funcinpec members in Cambodia and his participation in Funcinpec activities in Australia, it did not provoke the Applicant into seeking permanent protection, notwithstanding his claim that he had been waiting since his arrival in Australia to see if things improved.” (emphasis added)

61                  The RRT also found that available information indicated that the situation in Cambodia had improved in recent times and that there had been a significant reduction in political tensions.  It concluded:

“Notwithstanding that there may still be some internal tensions and rivalries within the coalition and some people affiliated with those groups encounter serious harm from time to time, in all of the circumstances the likelihood that the Applicant might be persecuted for reason of his affiliation with Funcinpec and the airforce, or for any other Convention reason, has become even more remote than it was when he left his country of origin.” (emphasis added)

62                  Although the RRT did not refer specifically, and in terms, to a sur place claim, I am satisfied that it fully appreciated that a claim of that type was being made.  It rejected that claim, having regard to the material before it, including in particular the “country information” which suggested that the situation in Cambodia had significantly improved in recent times.  Although the RRT might have given more extensive reasons for rejecting the sur place claim, its decision is not on that account alone to be vitiated.  Its reasoning is both comprehensible and logical.  It cannot be said that it failed to “consider” the application in the sense described in Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274.  No error has been demonstrated in the manner in which it dealt with the sur place claim. 

63                  It follows that grounds 2, 3 and 4 of the applicant’s grounds of review must be rejected.

64                  It also follows also that the application for review must be dismissed with costs.

Associate:

Dated:              17 July 2001