FEDERAL COURT OF AUSTRALIA

Applicant in V488 of 2000 v Minister for Immigration & Multicultural Affairs [2001] FCA 1815

MIGRATION - Refugees - Application for review of refusal to grant visa - Whether applicant had well-founded fear of persecution for reasons of political opinion - Whether requisite fear can arise in respect of persecution for mixed reasons including actual or imputed political opinion - What behaviour or actions may give rise to imputed political opinion - Whether Tribunal erred in regarding applicant’s assistance in procuring criminal prosecution of political opponent as incapable of engendering a fear of persecution for reasons of political opinion - Whether Tribunal asked itself a wrong question by ignoring events after applicant’s arrival in Australia - Whether persecution actuated by desire for revenge can also be for reasons of actual or imputed political opinion.

Migration Act 1958 (Cth) ss 36(2), 65(1), 411(1)(e), 414(1), 430, 476(1)

Chokov v Minister for Immigration and Multicultural Affairs [1999] FCA 823

Chan v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469

Minister for Immigration and Multicultural Affairs v Yusuf and Israelian (2001) 180 ALR 1

V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355

Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151

Minister for Immigration and Multicultural Affairs v Eshutu (1999) 197 CLR 611

Sikder Aslam v Minister for Immigration and Multicultural Affairs [2001] FCA 673

Farajvand v Minister for Immigration and Multicultural Affairs [2001] FCA 795

Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60

Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832

Jahazi v Minister for Immigration and Ethnic Affairs (1998) 61 FCR 293

C v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 366

Attorney-General (Canada) v Ward (1993) 103 DLR (4^th) 1

Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38

Ranwalage v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 173

Minister for Immigration and Multicultural Affairs v Y (unreported, per Davies J, 15 May 1998)

Woen v Minister for Immigration and Multicultural Affairs [2000] FCA 1912

Islam v Secretary of State for the Home Department [1999] 2 AC 629

Tang v Minister for Immigration and Multicultural Affairs [2000] FCA 1746

(Daljit) Singh v Minister for Immigration and Multicultural Affairs (2000) 102 FCR 51

Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 95 FCR 517

V488 of 2000

APPLICANT IN V488 of 2000 -v-  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RYAN J

19 DECEMBER 2001

MELBOURNE

THE COURT ORDERS:

1.         THAT the application be dismissed.

2.         THAT the applicant pay the respondent’s costs of the application, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant has applied for review of a decision of the Refugee Review Tribunal (“the Tribunal”), affirming the refusal by a delegate of the respondent Minister to grant the applicant a protection visa.  The applicant invokes three general grounds in support of his application for review:

(1)        The Tribunal committed an error of law (either by identifying the wrong issue or ignoring a relevant consideration) under s 476(1)(b) of the Migration Act 1958 (Cth) (“the Act”) and thereby exceeded its jurisdiction;

(2)        The Tribunal committed an error of law (either identifying the wrong issue or ignoring a relevant consideration) under s 476(1)(c) of the Act by improperly exercising the power conferred by the Act and related regulations; and

(3)        The Tribunal committed an error of law (either identifying the wrong issue or ignoring a relevant consideration) under s 476(1)(e) of the Act by incorrectly interpreting the applicable law or incorrectly applying the law to the facts.

Within these grounds are sub-issues that will be addressed accordingly.  However, they might be summarised briefly as relating to the way in which the Tribunal defined and applied “persecution for reasons of political opinion”, and to facts related to events after the 1997 coup in Cambodia which the applicant alleges that the Tribunal failed to consider.

Factual Background of Applicant

2                     The applicant was born in February 1961 in Kandal Province, Cambodia.  From 1975 to 1979, the Khmer Rouge regime compelled him to undertake forced labour with little to eat.  In 1980, after Vietnam had invaded Cambodia and installed a new government, the applicant was employed in Phnom Penh as a salesperson in a market.  However, his antipathy to the alleged corruption of the Vietnamese-dominated Hun Sen government led him, in 1986, to join the military wing of the resistance movement which became known as the United Front for an Independent, Neutral, Peaceful and Cooperative Cambodia (FUNCINPEC).  For the next five years, from the O’Smach camp on the Thai border, he helped fight against the Vietnamese and Hun Sen.  In 1991, he was made a captain in the resistance.

3                     In the same year, the United Nations brokered a peace treaty between the warring factions.  Although the applicant was still serving full-time in the armed forces, he campaigned for FUNCINPEC against Hun Sen’s Cambodian People’s Party (CPP).  For two years, until the May 1993 elections, the applicant served as the President for Propaganda for FUNCINPEC in the Battambang sector, travelling around the region making speeches and distributing pamphlets.  However, the Tribunal noted that the applicant did not seem to know how many seats had been contested in the Battambang region at that time or who had won them.

4                     After the election, the applicant was appointed as the FUNCINPEC Captain and as a secret agent in the Khan Chamcarmorn Police Department in Phnom Penh.  It should be noted that, under structural arrangements for that Department, the CCP had a separate captain and police officers.  In addition to his police work, the applicant also assisted his mother with her transport business. He gave no evidence of any political activities at this time.

5                     While performing his police duties in December 1996, he uncovered a prostitution and smuggling operation whereby Cambodian girls were sent to Thailand.  He reported this to the appropriate authorities.  Subsequent court proceedings revealed that a senior CPP official had been involved in the smuggling of prostitutes.  Thereafter, the applicant began to receive threats from CPP members while at the police station.  His supervisor recommended, in about January 1997, that the applicant go into hiding.  Shortly afterwards a CPP military officer visited the police station and enquired about the applicant and CPP officials paid several visits to his home.  The applicant then decided to apply in March 1997 for a tourist visa to Australia which was granted in the following month for a period of 90 days.  In April 1997, he departed without incident from the Phnom Penh international airport, which was jointly controlled by FUNCINPEC and the CPP.  According to the applicant, both groups would have known of his departure.

6                     In July 1997, Hun Sen ended the power-sharing arrangement with FUNCINPEC and executed a coup which removed FUNCINPEC officials from government, often by violence.  The applicant said that he had heard that the police station where he worked had been taken over by the CPP.  Further, there was widespread retaliation against FUNCINPEC supporters at this time during which, according to the applicant, his home and business were confiscated.  His parents left Phnom Penh after the coup and returned to the capital a few months later to live at a different address.  However, the applicant gave conflicting evidence about whether CPP officials had visited his parents’ home after their return to Phnom Penh.  There was also evidence that his parents have cautioned him against returning to Cambodia.  Both his mother in 1998, and his brother in 2000, wrote letters to the applicant explaining the danger to him if he returns.

7                     During his residence in Australia, the applicant has actively supported FUNCINPEC and another opposition group led by Sam Rainsy.  That support has found expression in attendance at a demonstration against the coup which was held outside Parliament House and at a reception for a senior FUNCINPEC official who, the applicant said, had warned FUNCINPEC supporters that it was dangerous to return to Cambodia.  Moreover, the applicant believes, CPP officials have been reporting on his activities in Melbourne.

8                     The applicant fears that his life would be at risk if he were to return to Cambodia.  That fear has been reinforced by the prosecution and imprisonment of the senior CCP official referred to in [5] above.  He is also concerned that harm will come to him because of his political activities against the CCP while he has been in Australia and because of his previous connections to the police and military.  As well, he is afraid that the peace agreement may break down and lead to violent reprisals against FUNCINPEC members like those which occurred after the coup of July 1997.

Procedural History and the Tribunal’s Decision

9                     As noted above, the applicant initially entered Australia on a three-month tourist visa which was subsequently extended after the coup.  The applicant declared that he did not become aware until December 1997 or January 1998 that he could apply for a protection visa.  After his request for an extended visitor’s visa had been refused, he applied for a protection visa on 23 January 1998.  A delegate of the Minister refused the application on 12 February 1998.  Shortly thereafter, the applicant applied to the Tribunal for a review of that refusal.  The Tribunal hearing occurred on 24 May 2000.  On the next day, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa.

10                  Although it accepted that the applicant had actively supported FUNCINPEC in the 1993 elections, the Tribunal considered that his lack of detailed knowledge indicated that he had not been a party leader as he claimed.  Further, the Tribunal found that the applicant had not been active in FUNCINPEC after 1993.  As well, it pointed out that the applicant did not claim to have been harassed after the 1993 election, but said that he had been harassed only after the prosecution which implicated the CPP official in late 1996.  The Tribunal also asserted that the applicant had not given evidence of an increase in tension between the groups before the coup, but that assertion appears to be contradicted by the applicant’s evidence recorded at p 22 of the transcript of the hearing before the Tribunal that there had been “very high tension” between the two sides before he left.  The Tribunal went on to remark that the applicant had remained in Cambodia for four months after the prosecution without being harmed and had been able to leave the country freely and legally.

11                  The Tribunal also relied on matters arising after the applicant’s arrival in Australia as supporting the refusal of a protection visa.  It observed that he had not then sought a protection visa immediately upon arrival in Australia or right after the coup.  His failure to mention the confiscation of his house or business in declarations made before his evidence to the Tribunal led it to doubt whether they had occurred or whether they had been related to political persecution.  Further, the Tribunal questioned the applicant’s explanation for not immediately seeking a protection visa which referred to language difficulties and ignorance of the system.  In this context, it noted that he had applied without difficulty to the Department of Immigration for renewal of his visitor’s visa and that he remained involved with FUNCINPEC and members of the Cambodian community who would have been able to advise him how to apply for a protection visa.

12                  From a survey of “country information”, the Tribunal observed that there had been violence against some FUNCINPEC members during the 1997 coup, but that the situation had improved after the 1998 elections.  FUNCINPEC was openly involved in politics in Cambodia at the time of the Tribunal’s decision.  The Tribunal cited a U.S. Department of State Report and Country Information Reports by the Australian Department of Foreign Affairs and Trade, which generally agreed that there had been diminished violence and harassment and a return to relative normality in Cambodia since about 1999.  Although the Tribunal believed that human rights abuses continued, it considered that they were not directed against political party supporters for political reasons.  Therefore, the Tribunal concluded that ordinary members of FUNCINPEC, like the applicant, who had been active in the 1993 election did not face a real chance of persecution.  Also, the Tribunal felt that the applicant’s activities with FUNCINPEC in Australia would not expose him to a risk of persecution if he were to return to Cambodia.

13                  Moreover, in the Tribunal’s view, even if the particular CPP official who had been incriminated by the applicant were able to instigate some persecution by way of reprisal, that would not be for a Convention reason.  Although the two men were in different political parties, the Tribunal felt this to be “peripheral” to the motive of revenge.  The Tribunal thought that the CPP official would be actuated, not by political enmity, but rather by a desire for personal vengeance against the applicant because the official had been convicted and imprisoned as a result of the applicant’s investigation.  However, the Tribunal went on to say that, regardless of the reason for it, the risk of any persecution of the applicant was remote.

14                  Finally, the Tribunal considered that the peace agreement in force at the time of its decision would hold despite the failure of previous agreements.  Even if the present agreement were to fail, it was not reasonably foreseeable that the applicant would face a real chance of persecution on account of his political opinion or previous activities.

15                  For the reasons which it explained, the Tribunal concluded that the subjective fear of persecution, which it accepted the applicant had for the reason of political opinion, was not well-founded.  As a result, it affirmed the refusal of his application for a protection visa.  The applicant applied to this Court on 7 July 2000 for a review of that refusal.

Relevant Law

16                  The Refugee Convention and Protocol, imported into Australian domestic law by the Migration Act 1958 s 36(2) (the “Act”), states that a person is entitled to be accorded refugee status if he or she has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion . . . .”;  Convention relating to the Status of Refugees 1951, Art 1(A)(2).  A person may be persecuted for more than one reason, and some reasons may not attract the protection of the Convention.  However, provided that one of the Convention grounds is made out, that is sufficient to support a grant of refugee status:  Chokov v Minister for Immigration and Multicultural Affairs [1999] FCA 823, per Einfield J, at [30].

17                  According to The Law of Refugee Status by James Hathaway, at p 149, “The notion of persecution on account of political opinion was conceived in liberal terms [by those who drafted the Convention]. . . [P]rotection on the ground of political opinion was to be extended, not only to those with identifiable political affiliations or roles, but also to other persons at risk from political forces within their home community”.  The learned author goes on to say that “[e]ssentially any action which is perceived to be a challenge to governmental authority is therefore appropriately considered to be the expression of a political opinion” op. cit. p 154.  Although Australian courts have not explicitly adopted this latter statement, the High Court has recognised that, not only actual political opinion and acts, but also imputed political beliefs can afford a basis for persecution in the requisite sense.  “[P]ersecution may as equally be constituted by the infliction of harm on the basis of perceived political belief as of actual belief”:  Chan v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379.

18                  Under s 65(1) of the Act, if the Minister or his delegate concludes that an applicant satisfies the criteria laid down in the Act or the Migration Regulations 1994 (Cth), then the visa must be granted.  By virtue of ss 411(1)(e) and 414(1) of the Act, the Tribunal must review a decision of the Minister or his delegate denying or cancelling a protection visa if a valid application is made for a review of that decision.

19                  Section 476(1) specifies, so far as is relevant, the grounds of review by this Court of a decision of the Tribunal:

(1)       Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: . . .

. . .

(b)       that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)        that the decision was not authorised by this Act or the regulations;

. . .

(e)               that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision . . . .”

20                  As already noted, it was submitted on behalf of the applicant that the Tribunal had failed, contrary to s 430 of the Act, to set out its finding on a material question of fact, namely whether there were continuing threats of persecution against the applicant.  In this context, reliance was based on the judgment of a five-member Full Court of this Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469.  However, that argument is no longer available to the applicant as a result of the judgment of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf and Israelian (2001) 180 ALR 1, which disapproved of the conclusion in Singh that s 430 of the Act imposes an obligation on the Tribunal to make and set out findings on all matters of fact that are objectively material to the decision it is required to make.  In their joint judgment in Yusuf, McHugh, Gummow and Hayne JJ observed, at 17, [68];

“Section 430 does not expressly impose such an obligation.  In its terms, it requires no more than that the Tribunal set out the findings which it did make.  Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made.  In Singh, significance was attached to the use of the word "material" in s 430(1)(c).  It was said [(2000) 98 FCR 469 at 481 [47]-[48]] that "material" in the expression "material questions of fact" must mean "objectively material".  Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make.  But it is not right to read "material" as providing an objective or external standard of materiality.  A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision‑maker.  All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.”  (original emphasis)

21                  Their Honours accepted that the considerations advanced by the parties may have a bearing on what is or is not, a relevant consideration.  However, they went on to observe, at 19, [73] – [74];

“The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider. ... .... This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration.  It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker.  What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law.  They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.”

Did the Tribunal fail to recognise that persecution within the meaning of the Convention may be partly for reasons of political opinion and partly for other reasons?

22                  It was contended on behalf of the applicant that the Tribunal had confined too narrowly the concept of persecution for reasons of political opinion which is articulated by Art. II(A)(2) of the Convention.  Reference was made in support of this contention to V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355, where Wilcox J referred to Beaumont J’s analysis in Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151, at 158 - 165, and continued, at 362 [14];

“I see no point in reproducing that analysis.  However, it is useful to note that Beaumont J approved two comments by Hathaway, The Law of Refugee Status (1991).  The first is it will suffice “to rely on evidence of engagement in activities which imply an adverse political opinion, and which would elicit a negative governmental response tantamount to persecution” ((Emphasis added).  Second, it is not necessary to show a prominent political profile.  Hathaway adopts an extract from a decision of the Immigration Appeal Board:

“‘Nowhere in the Convention does it say that to be considered a refugee an applicant must have been prominent in the political life of his country of origin.  The crucial test is that certain behaviour or actions on the part of the applicant are or have been perceived by the authorities in power as political opposition …’”

Citing three decisions of the Federal Court of Appeal (of Canada) as his authority, Hathaway says (at 154):

“Essentially any action which is perceived to be a challenge to governmental authority is therefore appropriately considered to be the expression of a political opinion.””

23                  However, the Tribunal in the present case did not hold that the applicant’s activities, including the part he played in implicating the CPP official in a criminal offence, were not capable of implying a political opinion susceptible of attracting persecution.  Rather, it noted, in this passage at p 8 of its reasons, that the action against the CPP official had occurred in December 1996 and the applicant remained in Cambodia for a further four months without being harmed;

“… … …It is plausible that he was threatened after he implicated a senior CPP official in a criminal prosecution, but that occurred in December 1996 and the Applicant remained for a further four months without being harmed. He said he was hiding, although he told the Tribunal that the CPP had a network of informers who had no trouble finding his mother when she moved to a new address in Phnom Penh. He also told the Tribunal that his departure through the airport would have been known to both Funcinpec and CPP officials, yet he left legally, was not stopped and was issued with an exit permit (see item 43 of the application form).”

24                  Similar reasoning occurred in the passage at p 9 of its decision where the Tribunal accepted that the applicant may have been of interest to his perceived political enemies, “even if only because he had implicated one such person in a criminal prosecution”, but concluded that any such interest had evaporated by the time when the applicant left Cambodia.  That passage was in these terms;

“It is apparent from the information below that a significant level of violence attended the coup in 1997, much of it directed at people associated with Funcinpec. The Applicant never encountered any of that violence prior to the coup and left Cambodia legally and unhindered through the Phnom Penh airport. If he was of any interest to his perceived political enemies, even if only because he had implicated one such person in a criminal prosecution, the Tribunal is satisfied they had ample time and opportunity to intercept and 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 or other Hun Sen agents, despite his evidence that he was a member of Funcinpec and played a central role in prosecuting a senior CPP official involved in serious crime.”

25                  The logic of that conclusion may not commend itself to other minds but the drawing of conclusions of that kind was part of the fact finding process entrusted to the Tribunal for the purpose of answering the ultimate question whether the applicant had a well-founded fear of persecution for a Convention reason if he were returned to Cambodia.  As Gleeson CJ and McHugh J said in Minister for Immigration and Multicultural Affairs v Eshutu (1999) 197 CLR 611, at 626, [40];

“The essence of the suggested illogicality or unreasonableness in the Tribunal's decision, as observed by Hill J, and accepted by Davies and Burchett JJ, although strongly contested by Whitlam J, is said to lie in the process of reasoning by which the Tribunal came to regard the information given by Mr Eshetu as to the December 1991 incident which led to his departure from Ethiopia as implausible.  It was considered by Hill J that the Tribunal failed to give sufficient weight to certain information before it, especially information from EHRC, and attached unwarranted importance to the absence of any independent record of the alleged occurrences.  Whitlam J was of the view that the reasoning displayed no error.  Even if it did, however, there is a serious question whether the suggested error is of the kind to which the Wednesburyprivilege is directed.  We are not here concerned, for example, with the unreasonable exercise of a discretion, and it is difficult to characterise the Tribunal's decision, even on Hill J's view of it, as an abuse of power.  Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as "illogical" or "unreasonable", or even "so unreasonable that no reasonable person could adopt it".  If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.”

Did the Tribunal ask itself the wrong question?

26                  In written submissions filed after the reasons for judgment of the High Court in Yusuf had been published, Counsel for the applicant accepted that the effect of that judgment was “to make the grounds of review previously provided by s 476(1)(a) no longer available.”  However, it was contended that the High Court in Yusuf had acknowledged that the Tribunal was bound to ask itself the right question or, as Counsel put it, not to “identify [...] the wrong issue.”  The passages from Yusuf (again from the joint judgment) to which Counsel for the applicant referred were to the following effect, at 22 [82] - [84];

“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.  Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.  [Craig (1995) 184 CLR 163 at 179].

No doubt full weight must be given to s 476(3) and the limitations which it prescribes in the construction of improper exercise of power in par (d) of s 476(1).  Equally, however, it is important to recognise that these limitations, unlike those prescribed by s 476(2), are limitations on only one of the grounds specified in s 476(1).  All this being so, there is no reason to give either par (b) or par (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs.  In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it "exceeds its authority or powers".  If that is so, the person who purported to make the decision "did not have jurisdiction" to make the decision he or she made, and the decision "was not authorised" by the Act.

... ... ... ... ...

Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals.  That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language.  If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found.  If that is so, the ground in s 476(1)(e) is made out.”

27                  The Tribunal’s identification of the wrong issue in the present case, it was put, was inherent in its failure to evaluate the effect of threats made to the applicant after the coup of 1997.  However, the Tribunal did not ignore the alleged existence of those threats.  It said, at p 15 of its reasons;

“He [the applicant] gave some contradictory evidence about his parents being harassed since their return to Cambodia after the 1997 coup. It is plausible that people have inquired after him, but it appears that nobody in his family has been harmed, notwithstanding they might be fearful. The Applicant was not intercepted at the airport when the conviction of the CPP official was fresh and he stated his departure was known to the CPP. It is even less likely that he would be intercepted for that reason more than three years later, even when it is considered in combination with his connections with Funcinpec.”

28                  That passage, I consider, indicates that the Tribunal was alert to the relevance to its assessment of whether the applicant had a well-founded fear of persecution of post-coup threats but concluded they amounted to nothing more tangible than “inquiries” after the applicant and have not been persisted in since before he left Cambodia.  If that conclusion was erroneous, the error was one of fact and did not involve asking the wrong question or identifying a wrong issue in the sense discussed in the passage last quoted from Yusuf.

29                  It follows that, on the view which I take of its reasons, the Tribunal has not “failed to deal with a substantial matter thrown up by the claims of the applicant which was evidentially probative, and in that sense, relevant to the questions mandated by the Act;  Sikder Aslam v Minister for Immigration and Multicultural Affairs [2001] FCA 673, at [36]. 

30                  Reference was also made on behalf of the applicant to Farajvand v Minister for Immigration and Multicultural Affairs [2001] FCA 795, as illustrating a similar application in analogous circumstances of the reasoning in Yusuf to which I have just referred.  In Farajvand, Allsop J said, at [34] - [36];

“If my preferred view of the reasons is not correct, then I think that the Tribunal has failed to direct itself to a question which is inherent in the Convention definition, and the intersection of religion and persecution within that composite phrase, as arising from the facts as found.  That is, the Tribunal has not directed itself to the question as to whether the anticipated limits on the practice of the Christian faith of this applicant and the foresight of any such limitation did or did not amount to persecution or, more accurately, a well-founded fear of persecution.

To fail to undertake that analysis is not the leaving aside of a mere factual piece of probative evidence.  It is to fail to complete the analysis of the position of the applicant as a refugee sur place.  This is so even if it is not to be accepted from the findings that the Tribunal did find that the applicant would limit his religious practice because of a recognition or fear of State action in Iran. 

On either basis which I have put, in my view there is an error of law within the meaning of either s 476(1)(e) or s 476(1)(b) of the Act.  As to the former provision, that is, s 476(1)(e), in my view there is an error of law in the appreciation of the applicable law, that is, the meaning of religion and its intersection with persecution within the composite phrase in the Convention, and the application of that law to the facts as in fact found.”

31                  I accept that the passage from the joint judgment in Yusuf which is quoted at [21] of these reasons indicates that an error of law may be inferred from a failure to make findings on questions of fact which a proper understanding of the law applicable to the evidence adduced would require to be made.  See also Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60, per Burchett J, at [14] and, for an express application of the relevant passages from Yusuf after that case was decided, see Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832, at [21].

32                  In that case, a Full Court of this Court, after quoting part of the extract from Yusuf reproduced at [26] above, noted that Gleeson CJ in Yusuf had agreed with the joint judgment and had also suggested that a failure to make a finding on a material question of fact might give rise to a ground of review under the provisions in s 476(1) other than s 476(1)(a).  The Full Court then considered a submission advanced on behalf of the appellant before it that the Tribunal had failed to take into account, in any real sense, his claim to have been arrested and detained for the reason of an imputed political opinion.  The Full Court continued, at [23];

“This submission was predicated upon the contention that there was such a paucity of analysis in respect of the two documents that the conclusion was that the Tribunal did not take into account the evidence in relation to the two documents in any real sense.  However, to come within the reasoning of the majority in Yusuf, it is necessary to demonstrate that the Tribunal identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material.  For the reasons given in pars 15-19 above we are satisfied that the Tribunal did not fall into such an error.  The submission that the Tribunal did not properly consider the evidence of detention does not give rise to the application of the reasoning of the majority in Yusuf, and in any event, we reject it for the reasons already given.  The Tribunal did not fall into jurisdictional error and the added grounds are not made out.”

33                  As already indicated, the Tribunal here did not ignore the evidence of post-coup “threats” against the applicant.  Rather, it declined to attribute to them the gravity for which the applicant contended.  For reasons similar to those explained in Tedella, the reasoning of the Tribunal in this respect did not attract the application of the observations of McHugh and Gummow JJ in Yusuf. 

Can persecution for reasons of revenge have a political, as well as a personal, connotation?

34                  It was submitted on behalf of the applicant that the Tribunal had erred in law when it characterised the persecution which he claimed to fear as a result of his part in securing the conviction of the former CPP official as being for reasons of personal revenge.  The relevant passage from p 16 of the Tribunal’s reasons is in these terms;

“In any event, the efforts of that official to avenge his prosecution are not “for reasons of” the Applicant’s political opinions. While there is a peripheral connection between the political affiliations of the two men in that the convicted man was a member of the CPP involved in serious crime and the Applicant was a member of an opposition group whose job was to police such crime, it cannot reasonably be said that the former would be motivated by the latter’s political opinions in the remote likelihood that he will harm him. The Tribunal is satisfied that his  motivation would be revenge because he had been caught and jailed and wants to repay the Applicant. As already concluded, there is not a real chance that the Applicant might even encounter that experience should he return to Cambodia.”

35                  The circumstances in which a “crime” for political purposes is to be differentiated from non-political crimes were examined at some length by a Full Court of this Court in (Daljit) Singh v Minister for Immigration and Multicultural Affairs (2000) 102 FCR 51.  In the light of that examination, the Court concluded, at 60, [26];

“An application of the principles which we have discussed leads to the conclusion, in our view, that the primary Judge was correct in holding that the Tribunal erred in concluding, on the basis on which it put the conclusion, that the murder of the police officer was a non‑political crime.  It was insufficient, particularly, to reach that conclusion merely on the basis that the murder was a “revenge” killing.  If there is a political struggle in which agents of the government, including police, have a policy of torturing and killing those who oppose the government, we see no reason why crimes directed at those agents, or police officers, may not be regarded as political (that is, as satisfying the “incidence” test) even though they may be characterised as crimes of revenge.  It is, of course, necessary to look at the circumstances of the particular crime in order to decide (on the basis of what may be very limited information) whether there are serious reasons to believe that it cannot be characterised as political.  It is necessary also, of course, to consider whether the crime has characteristics which, notwithstanding “incidence”, require it to be regarded as non-political.”

36                  It has also been acknowledged that, although there may be mixed motives for persecutory acts, the need for a Convention reason will be satisfied if only one of those motives is referable to, for example, the victim’s race or membership of a social group;  see eg. Chokov v Minister for Immigration and Multicultural Affairs, (supra) and Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 95 FCR 517.

37                  The question for the Tribunal in cases like this is whether the actual or imputed political opinion provides a reason for the apprehended persecution.  That is not to say that the occasion for the persecution may not be something other than actual or implied political opinion;  see Jahazi v Minister for Immigration and Ethnic Affairs (1998) 61 FCR 293, at 299.  It is also to be noted that actual or imputed political opinion in this context is not confined to adherence to a political party or support for its policies.  It may extend to an opinion expressly or impliedly inconsistent with that held by the government of a country;  see eg.  C v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 366, at 372 - 375, citing, amongst others, Attorney-General (Canada) v Ward (1993) 103 DLR (4^th) 1, Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38, at 49;  Ranwalage v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 173;  Minister for Immigration and Multicultural Affairs v Y (unreported, per Davies J, 15 May 1998) and V v Minister for Immigration and Multicultural Affairs, (supra). 

38                  It is also possible for persecution to be for a Convention reason even if the actual perpetrators are not actuated by that reason but the persecution is condoned, or the conditions for it are created, by the authorities on the ground, eg. of race or actual or imputed political opinion.  Thus, in Woen v Minister for Immigration and Multicultural Affairs [2000] FCA 1912, Emmett J observed, at [24];

“Persecutory conduct can be Convention based, even though the persecutor as an individual has no discriminatory motive, so long as the state withholds effective protection on a Convention ground.  Persecution occurs where a non-state agent persecutes for a non-Convention reason and where, for a Convention reason, state protection is not available.....”

39                  His Honour then referred with approval to the analogy postulated by Lord Hoffmann in Islam v Secretary of State for the Home Department [1999] 2 AC 629, at 654 but declined to impute to the Tribunal any error of law in the case before him.  That was because “the Tribunal made a finding of fact that the chance of harm befalling the applicant if she returns to Indonesia is remote.”  Similarly, the Tribunal in the present case has found that the applicant, if he returns to Cambodia, does not face a real chance of persecution, even as a result of acts motivated by revenge for the imprisonment of the CPP official.  In their context, the Tribunal’s remarks about revenge as a motivation were no more than what a Full Court of this Court in Tang v Minister for Immigration and Multicultural Affairs [2000] FCA 1746, at [13] and [17], called “a gratuitous aside.”  Consequently, even if the Tribunal mistakenly concluded that persecution actuated by such a desire for revenge could never be for a Convention reason, that mistake did not vitiate its conclusion on the ultimate question of whether the applicant had a well-founded fear of persecution for a Convention reason if he were to return to Cambodia.

Conclusion

40                  As will be apparent from the foregoing reasons, I have been unable to uphold any of those contentions advanced on behalf of the applicant which have been persisted in since the publication of the High Court’s reasons in Yusuf.  Accordingly, the application must be dismissed with costs.

Associate:

Dated:              19 December 2001