FEDERAL COURT OF AUSTRALIA

Applicant A99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 773

MIGRATION – Refugee Review Tribunal – whether jurisdictional error in misapplying law as to existence of ‘real chance’ of harm – whether jurisdictional error in consideration of the adequacy of state protection available in Nepal – level of state protection required

Migration Act 1958 (Cth) ss 36(2), 414

Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487; [2004] HCA 18 applied

Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 211 CLR 476; [2003] HCA 2 applied

Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 applied

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 applied

Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 applied

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 applied

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 applied

Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 applied

Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 cited

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 cited

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 applied

Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited

Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 applied

SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 cited

Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 applied

APPLICANT A99 OF 2003 vMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, SUSAN McILLHATTON, MEMBER, REFUGEE REVIEW TRIBUNAL AND PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL

S 669 of 2003

MANSFIELD J

9 JULY 2004

ADELAIDE

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal of 31 December 2002 is quashed.

2. The Refugee Review Tribunal hear and determine the application of the applicant to the Refugee Review Tribunal made on 12 March 2002 to review the decision of the delegate of the first respondent made on 20 February 2002 according to law.

3. The first respondent pay the costs of the application to the applicant.

4. There is no order as to the costs of the second and third respondents.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicant is a citizen of Nepal. He arrived in Australia on 11 December 2001 and 2 days later (13 December 2001) applied for a protection visa under the Migration Act 1958 (Cth) (the Act). The delegate of the first respondent refused his application on 20 February 2002. On 31 December 2002 the Refugee Review Tribunal (the Tribunal) affirmed the decision of the first respondent’s delegate.

2                     This application was instituted in the High Court of Australia on 21 February 2003. The applicant sought writs of mandamus, prohibition and certiorari in respect of the Tribunal’s decision. The matter was remitted to this Court by order of Hayne J on 11 June 2003. In order for this application to succeed the Tribunal must have committed a jurisdictional error: Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 211 CLR 476; [2003] HCA 2.

3                     An entitlement on the part of the applicant to a protection visa under the Act depended upon the decision-maker being satisfied that the criteria for the grant of a protection visa in the Act and the Migration Regulations 1994 (Cth) were met: s 65 of the Act. The relevant criterion for present purposes is that in s 36(2) of the Act, namely that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention). In practical terms, that required the decision-maker being satisfied that the applicant is a refugee as defined in Art 1A(2) of the Convention. The applicant claimed to have the status of a refugee because he has a well-founded fear of persecution if he were to return to Nepal for reasons of his political activities whilst he lived there. The decision-maker needed to be satisfied that the applicant feared persecution for reasons of his political opinion, that his fear was well-founded, that he was outside Nepal owing to such fear, and that he was unable or, owing to such fear, unwilling to avail himself of the protection of Nepal. It is necessary to refer to his claims in a little detail.

THE TRIBUNAL’S DECISION

4                     The applicant claims to have a well-founded fear of harm he will suffer at the hands of Maoists due to his political position and activities if he were to return to Nepal. The Maoist United Peoples Front have been conducting a ‘People’s War’ against the government of Nepal for many years. The applicant has been involved with the village development committee of his district since 1989. The Tribunal accepted that the applicant fears harm from the Maoists in Nepal. It also accepted that the applicant was, from 1997, the vice-president of the village development committee of Simara in the Bara district of Nepal. The Tribunal also accepted that, in mid 2000, the applicant received a written ‘final’ threat to his safety from the Maoists in Nepal. Following that threat, the applicant moved to Kathmandu and got another job. He continued his role in the village development committee, visiting the district often over the succeeding period. He in fact suffered no adverse consequences from the Maoists until he left Nepal for Australia in late 2001.

5                     The Tribunal, however, was not satisfied in terms of s 36(2) of the Act that the applicant has a well-founded fear of persecution for any Convention reason. It did not accept the applicant’s fears of persecution as well-founded. It said:

‘In my view there is simply insufficient material in the applicant’s own evidence from which I could be satisfied that the events he has described and his own experiences objectively support a fear of persecution owing to political opinion, his membership of a particular social group or indeed any other Convention ground.’

6                     The Tribunal also considered the level of protection available to the applicant in Nepal. It did so in the context of assessing whether his fear of harm is well-founded. It was satisfied the applicant does not have a well-founded fear due to the level of protection the Nepalese police can and would supply him in Nepal if he returned there. Its conclusion on that aspect is reflected in the following passage:

‘Moreover, the applicant’s own evidence indicates that the police were willing to provide him with protection in respect of any threat posed to him by the Maoists specifically as it related to his return visits to Simara.

…

I am satisfied from the independent evidence before me that the government of Nepal has in place a range of mechanisms designed to protect its citizens from the threat posed to them by the Maoist insurgency. I am also satisfied on the evidence before me, including the independent and the applicant’s own evidence, that the government of Nepal through its agents including the police will provide the applicant with a level of protection sufficient to remove a real chance of persecution of him in Nepal. I am not satisfied that the material provided by the applicant suggests a level of ineffectuality of state protection that would allow or give rise to a real chance that he will be persecuted by the Maoists.’

For reasons which appear below, it is significant that the findings just quoted relate to whether there is a ‘real chance’ of the applicant suffering harm at the hands of the Maoists.

7                     In accordance with s 65 of the Act the Tribunal affirmed the decision not to grant the protection visa.

THE GROUNDS OF REVIEW

8                     The originating application stated six grounds which were said to indicate jurisdictional error on the part of the Tribunal. These grounds bore a resemblance to those grounds of review available under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Some three and a half months before the hearing of this matter the solicitor for the applicant changed. On 21 May 2004 a further amended application was filed setting out four grounds of review. To paraphrase, these grounds allege jurisdictional error on the part of the Tribunal in the following ways:

1.             that the Tribunal did not review the decision of the delegate of the first respondent as required by s 414 of the Act;

2.             that the Tribunal failed to take into account information required by s 423 of the Act to be taken into account, namely the letter from the Nepalese police dated 16 June 2001 (the 2001 letter);

3.             that the Tribunal failed to take into account information required by s 425 of the Act to be taken into account, namely that the applicant feared being betrayed to the Maoists by people that he knew, in effect that the Tribunal failed to address an integer of his claims; and

4.             the Tribunal reached a conclusion that the Nepalese authorities would protect the applicant from any threat from the Maoists, which involved the Tribunal asking itself the wrong question and making findings with no evidence to support them.

9                     In written and oral submissions, the applicant’s case focused on two issues, namely the Tribunal’s approach to whether there was objectively a well-founded fear of harm from the Maoists, and secondly, its approach to whether the Nepalese authorities could provide the applicant with a sufficient level of protection so that objectively there was, in the light of that protection, a well-founded fear of persecution.

10                  Counsel for the applicant correctly acknowledged that the applicant had to demonstrate jurisdictional error at each of those points to succeed in the application. That is because the applicant fears conduct in Nepal from non-government entities. He does not claim that the Nepalese government encourages, condones or tolerates the conduct of the Maoists. The risk of serious harm which may amount to persecution need not be threatened in all instances by the state or agents of the state: Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 (Khawar). As explained in Khawar per Gleeson CJ at 10, [21] and per McHugh and Gummow JJ at 21, [61] – [62], the fear of persecution must result in the putative refugee being unable or unwilling to take advantage of the protection of the country of nationality. In Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 Brennan J at 233 said that, where the fear of persecution was not from the state or agents of the state but from third parties, the conduct of the third parties must be ‘… officially tolerated or uncontrollable by the authorities’ of the state of the putative refugee’s nationality.

11                  In order to show that the Tribunal committed jurisdictional error in its not being satisfied that the applicant’s fear of persecution for any Convention reason is well-founded, counsel for the applicant highlighted what he described as weaknesses or shortcomings in the Tribunal’s decision. The applicant submitted that these shortcomings show the Tribunal breached its obligations under the Act and in so doing committed a jurisdictional error.

CONSIDERATION

(a) A well-founded fear of persecution?

12                  As stated above, the Tribunal accepted that from 1997 the applicant was actively involved in some form of political activity, and that in mid 2000 the applicant received one written threat, dated 16 July 2000, from the Maoists. The English translation of this document indicates it is headed ‘Acknowledgement of the final warning’. The Tribunal quoted its contents:

‘Further to our verbal warning time and again regarding your actions which promoted public disbelief in our party and organisations and refusal to act according to us despite this you are required by final notice to stop working against our party, resign from your post immediately and hand over the sum of [5,00,000] Rupees which was allocated by the District Development Committee for your village Development Committee to us. It is acknowledged that not cooperating this final warning will result in fatal actions against you according to our party mandates.’

13                  The applicant did not resign from the district development committee. He did not pay the claimed amercement. He claimed that within a month of receiving this letter he moved to Kathmandu.

14                  It is simply wrong for the Tribunal to have found, as it did, that ‘apart from the letter in mid 2000 the Maoists displayed no other direct interest towards him nor did he have any further contact with them’. Principally, that is because it did not have regard in this context to the 2001 letter received by the applicant in mid 2001. The Tribunal accepted its genuineness, as it referred to and used the 2001 letter in another context. The 2001 letter to the applicant was signed by police inspector Pawan Kumar Giri and bore the letterhead of the Suburban Police Office, Simara Branch, Bara. It was dated 16 June 2001. The Tribunal also quoted the English translation of this letter:

‘Further to the information we received from the special sources, as the Nepal Communist Party, Maoist, Bara District has decided to undertake a fatal attack on you, I would like to acknowledge you of this accordingly. And it is requested that you will let us know regarding any programmes which you attend in various wards within this Village Development Committee in order to enable us to provide you with the required security. It is also acknowledged that we will not be held liable in the event that you fail to inform us within the appropriate time.’

15                  It is impossible to understand how the Tribunal, in the face of the 2001 letter could have described the circumstances as being ‘an absence of any further adverse interest displayed’ in the applicant after he received the death threat dated 16 July 2000. Some eleven months later, the Nepalese authorities informed him that the Maoists intended to kill him.

16                  There was other evidence of ongoing interest in the applicant on the part of the Maoists after 16 July 2000. The Tribunal referred to that evidence in its recital of the course of the hearing. The applicant told the Tribunal that he ‘came to know from a reliable source’ that the Maoists were looking for him, that his name was published in a Maoist newspaper, and that he had received threats through Maoist contact with his wife who had remained in his home district, as well as having heard from the police in his district that the Maoists had ‘decided to finish [him] off’. His evidence included the claim that he feared betrayal to the Maoists from some within his own political group.

17                  The applicant also referred to independent information about Maoists having killed or perpetrated violence upon other persons who they regarded as political opponents.

18                  It is how the Tribunal addressed that evidence, in particular its failure to recognise the significance of the 2001 letter, which in my view demonstrates jurisdictional error on the part of the Tribunal in addressing whether the applicant has a well-founded fear of serious harm by the Maoists by reason of his political opinion. In my judgment, its error is not simply an error of fact (although I find it impossible to comprehend how the Tribunal could have reached the finding on the evidence that the applicant’s accepted fear of what the Maoists might do to him is not well-founded), nor simply an oversight of a particular piece of evidence.

19                  In the ‘findings and reasons’ section of its decision the Tribunal states:

‘After receiving the letter the applicant moved to Kathmandu where he found work. He does not claim, nor does he suggest that he directly received any further written or verbal threats after he went to Kathmandu. Indeed while he lived in Kathmandu he continued with his duties and activities on the development committee and commuted between Kathmandu and Simara by aeroplane on about 10 or 12 occasions staying for shot periods. He did not come to any harm during his return visits to Simara and he did not point to any specific difficulties with the Maoists on his return. He does not claim, and his evidence does not suggest, that the Maoists visited him at his workplace or at his home in Kathmandu.’

20                  Section 414 of the Act describes the duty of the Tribunal. It was considered by the Full Court in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 292, [18] – [19]. The Court there held that the Tribunal has wide ranging powers in order for it to be able to review the initial decision. It has been said that the Tribunal stands in the shoes of the original decision maker and that it exists to do again what the primary decision-maker did in order that the correct or preferable decision is reached. The Tribunal must therefore consider all of the substantial claims, and information in support of them, put forward by the applicant.

21                  The Tribunal commits jurisdictional error if it misconceives its role, or fails to apply itself to the question which the Act requires it to address, or misunderstands the nature of the opinion which it is to form: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 per Gleeson CJ, Gaudron and Hayne JJ at 208 – 209.

22                  It is required to address each of the component integers of the applicant’s claims: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf); Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at 259, [42] per Allsop J, with whom Spender J agreed.

23                  In Yusuf, McHugh, Gummow and Hayne JJ said at 351, [82]:

‘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.’

I am mindful that the Tribunal’s reasons should not be read with an eye attuned to the perception of error. They are the reasons of an administrative decision-maker, not of a Court. They are to inform, as required by s 430 of the Act. In addition, I am mindful that the Tribunal is not required to address every piece of evidence before it, and that its making of a particular finding based upon certain evidence may indicate that it has rejected other evidence to different effect without it necessarily having said so. See e.g. Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 369 at [79]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 (WAEE) at 641, [2003] FCAFC 184 at [46] – [47].

24                  The Tribunal apparently accepted that, prior to the first written death threat in July 2000, the applicant had received oral demands for money from the Maoists and oral demands that he resign from the village development committee, and that he had not acceded to those demands. It described that contact as ‘sporadic’. It described his evidence about any further contact with the Maoists after the first death threat as evasive. Its recital of the course of the hearing refers to him coming to know from a ‘reliable source’ of ongoing interest in him by the Maoists, and of the steps he took to make himself less obvious. The Tribunal also referred to the publishing of his name in a Maoist paper. It described his evidence on the topic as ‘confused’, although the applicant said the publication was a form of indirect pressure on him.

25                  The applicant’s evidence about his name appearing in a Maoist newspaper was that ‘they took my name out in that leading paper saying that I have been trying to get people arrested through pressurising police’. He described having in fact asked the police to arrest certain Maoists. He described the newspaper as indicating to its readers the persons who the Maoists are taking action against, so as to amount to an indirect threat to him. The evidence seems clear enough to me, but that is beside the point. It was not pursued at any length by the Tribunal. It did not reject the claimed fact that the applicant’s name had appeared in a Maoist newspaper. The weight it gave to that evidence was a matter for the Tribunal.

26                  The Tribunal referred to the applicant’s evidence about the Maoist contact with his wife as threats to her. Again it noted that no harm had come to her. In its findings, the Tribunal described the evidence on this topic as ‘vague and unconvincing’, and it was not satisfied that the applicant’s wife was threatened by Maoists.

27                  The applicant’s evidence about the Maoists’ contact with his wife was very brief. It was in response to a question about other threats to the applicant. The applicant described persons visiting the house and making threats against the applicant if he did not comply with their demands. I do not understand why the evidence was vague and unconvincing, as the Tribunal appears to have reached that view based upon its content rather than upon the applicant’s demeanour. Moreover, in the light of the two death threats, it is hard to see why it should be unconvincing or improbable that some contact should be made through the applicant’s wife. However, that is a matter which is for the Tribunal. Its assessment of that evidence does not demonstrate jurisdictional error on its part.

28                  In the standard introduction to the Tribunal’s reasons there is an analysis of what is required for a person to be categorised as a refugee. One such requirement, accurately stated, is that the fear of persecution must be well-founded, that is that there is a real chance of persecution: see e.g. Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 (Chan); Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1.

29                  In my judgment, the Tribunal has not addressed that issue, even though it has accurately recorded the issue it was required to address. In the light of the evidence which it has clearly accepted (including the genuineness of the 2001 letter), I am satisfied that it has in fact imposed a higher standard of satisfaction than that which s 36(2) dictates. The Tribunal has repetitively referred to the absence of actual harm suffered by the applicant, or (after the first death threat) any actual direct communications from the Maoists. It must be a rare case where the state authorities have acknowledged the ongoing existence of a death threat. That is what the 2001 letter does. The other evidence of the applicant of indirect ways in which he came to perceive ongoing interest in him (apart from the communications with his wife, which is the only evidence the Tribunal expressly did not accept) was not rejected by the Tribunal as not having occurred. Nor was it regarded as irrelevant. The weight it attributed to such evidence was a matter for the Tribunal. As it indicated, it did not place much weight on this evidence. But the fact that the applicant heard of the ongoing interest in him was amply confirmed by the 2001 letter.

30                  Whilst the express words of the Tribunal do not expose a misapplication of the law, I am satisfied that the Tribunal has in fact asked itself the wrong question. It did not address the question whether the applicant has a well-founded fear of persecution by the Maoists in the way the High Court in the cases referred to has explained. Its emphasis on the absence of actual harm or direct contact after the first death threat, and its failure to refer in particular to the 2001 letter (or to the independent evidence of violence perpetrated by the Maoists upon individuals in Nepal), indicates to me that it did not in fact ask, in accordance with the authorities, whether the applicant has a well-founded fear of persecution. In Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 (S152/2003), McHugh J at 509, [79] said in words applicable to the present applicant:

‘The asylum seeker will have to show that there is a real chance that he or she will be one of the victims of that persecution. That person will have to show some fact or circumstance that indicates that there is a real chance that he or she will be among the victims. Thus, it may be enough to show that, by reason of the conduct of the asylum seeker, he or she stands a greater chance of harm than other persons who hold the same beliefs or opinions, or membership of the particular group. Or it may be enough to show that a very high percentage of such persons are persecuted for a Convention reason and the circumstances of the applicant are similar to those who have been persecuted.’

31                  I also consider that, alternatively, the Tribunal ignored material relevant to the making of the decision on the question whether the applicant has a well-founded fear of persecution. Counsel for the first respondent acknowledged that the 2001 letter was material relevant to that decision. He accepted that it was so directly relevant as to be material which the Tribunal was bound to take into account: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. The Tribunal (if it did not commit error in the way I have already referred to) ignored that material. It must have done so to conclude that, after the first death threat, the Maoists displayed no further interest in the applicant. It was evidence which went directly to a criterion for eligibility for a protection visa.

32                  In WAEE, the Full Court (French, Sackville and Hely JJ) at 641, [49] concluded that, despite the recounting of a certain claim in the recital of evidence, the Tribunal’s failure to consider that evidence when making its findings led to the conclusion that the Tribunal failed to address the issue to which the evidence was directed.

33                  One element of the applicant’s claims to have a well-founded fear of persecution was the subject of evidence at the hearing before the Tribunal on 25 October 2002. He said he feared that some in his political party might betray him to the Maoists. The applicant contended the Tribunal had failed to address this element of his claim at all. I do not accept the contention. This element of his claim was not that he fears harm from some within his own political party, but that his vulnerability to harm from the Maoists was possibly heightened by the risk that some within his own political party might reveal about him or his whereabouts to the Maoists, so as to make attack by the Maoists more likely. I do not regard the evidence as giving rise to a separate integer of the claim which the Tribunal was required to separately address.

(b) The Tribunal’s consideration of the availability of state protection

34                  The second hurdle the applicant must overcome to succeed is to establish jurisdictional error in the way the Tribunal considered the adequacy of state protection available to the applicant in Nepal.

35                  The significance of this issue is that the willingness and ability of the state to protect its citizens is relevant to whether an individual has a well founded fear of persecution: S152/2003 at 493, [21].

36                  In that case the majority (Gleeson CJ, Hayne and Heydon JJ) at 494 – 495, [26] stated:

‘No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. … The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force.’

37                  It is apparent from their Honours’ reasons that, in cases where the state or its agents is the perpetrator of the harm, and where the state or its agents encourages or tolerates or condones the harm or the feared harm, conclusions that the fear is well-founded, that the harm feared amounts to persecution, and that there is an unwillingness to return to the country of nationality for reasons of such fear can readily be drawn. Of course, the harm must be of sufficient seriousness, and must be for a Convention reason. The applicant in S152/2003 unsuccessfully sought to make out such a case. In this matter, the applicant makes no such allegations.

38                  The claim here is that the applicant’s fear of harm is well-founded, and that he is unwilling to return to Nepal, or to seek its protection, because Nepal is unable to protect him. The majority judgment in S152/2003 in the passage quoted above indicates that in such a case there are (at least) two steps to take. The first is to determine whether there is a real chance (as explained in Chan and other cases in the High Court) that the applicant will suffer serious harm at the hands of the non-state entity or group. For the purposes of this matter, I assume (as the Tribunal appears to have accepted) that the applicant has a subjective fear of such harm, and that any such harm would be inflicted for a Convention reason. The Tribunal appears to have accepted those two matters. If there is then a well-founded fear of serious harm from a non-state entity or group, the second step is to determine whether the country of nationality has taken reasonable measures to protect the lives and safety of its citizens, relevantly here by the provision of a reasonably effective police force and a reasonably impartial system of justice. An alternative formulation of the second question may be whether the state police and authorities meet international standards: see S152/2003 at 495, [28]. The appropriate level of state protection need not lead to the finding that the fear of harm is not well-founded, or that there is no real chance of the feared harm occurring. The existence of the appropriate level of state protection leads to the conclusion, as the majority judgment in S152/2003 shows, that there is not a justifiable unwillingness to seek the protection of the country of nationality. If the unwillingness is not justifiable, it is not owing to the fear of persecution: S152/2003 at 492, [19]; Khawar at 10, [21] per Gleeson CJ and at 21, [61] – [62] per McHugh and Gummow JJ. Moreover, if the country of nationality provides its citizens with the level of protection that they are entitled to expect according to international standards, fear of harm will not amount to a fear of persecution: S152/2003 at 496, [29].

39                  In S152/2003, McHugh J reached the same conclusion as the majority but by a somewhat different route. His Honour did not consider that a necessary element of persecution is that the state has breached a duty that it owes to the applicant for refugee status. His Honour said at 505, [65]:

‘If conduct constitutes persecution for a Convention reason when carried out by the state or its agents, it is persecution for a Convention reason when carried out by non-state agents.’

However, his Honour pointed out at 508, [76] that where the feared persecution is from non-state entities or agents, the preparedness of the state to act against them so as to eliminate or reduce the threat may result in the fear not being well-founded because there is no real threat that the persecutory conduct will occur. Where, despite the efforts of the state, the fear of persecution from non-state entities or agents remains well-founded, his Honour concluded that refugee status cannot be denied merely because the state and its agencies have taken all reasonable steps to eliminate the risk (at 510, [83]). McHugh J agreed with the outcome of that case because the Tribunal had concluded that there was no well-founded fear of persecution on the part of those applicants.

40                  In that case, Kirby J also agreed with the outcome. His Honour thought the case involved no new principle and no important proposition of law, but involved simply a decision by the Tribunal on the facts which was open to it (at 519, [119]).

41                  The majority in S152/2003, observed at 495, [28] that, because the case there presented alleged state participation or state complicity in the persecutory conduct, there was no evidence on the topic of whether that state provided ‘its citizens with the level of state protection’ required by ‘international standards’. It was not necessary to consider what those standards might require or how they could be ascertained. It is clear that there will need to be evidence in such a case as the present to support a conclusion that the state concerned did not provide the level of state protection required by such standards.

42                  Their Honours at 495, [28] further made clear that, in such circumstances, the state concerned is not required to guarantee the safety of the putative refugee from harm caused by persecutory conduct by non-state persons. They said:

‘If the Full Court contemplated that the tribunal, in assessing the justification for unwillingness to seek protection, should have considered, not merely whether the Ukrainian government provided a reasonably effective police force and a reasonably impartial system of justice, but also whether it could guarantee the first respondent’s safety to the extent that he need have no fear of further harm, then it was in error. A person living inside or outside his or her country of nationality may have a well-founded fear of harm. The fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify unwillingness to seek their protection.’

43                  An issue similar to the present was recently considered in this Court by Selway J in SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545. In concluding his Honour stated at [36]:

‘In the absence of any evidence before the Tribunal that the protection available from the South African police and authorities was below international standards or even that it was so inadequate that a person could not be blamed for not relying on them for protection then the Tribunal was correct to conclude that it was not satisfied that South Africa lacks the capacity and willingness to provide reasonably effective protection to its citizens including the applicant.’

44                  The Tribunal in this matter found that the Nepalese police were willing to provide the applicant with protection from the Maoists. That was made clear in the 2001 letter. The applicant claimed to be unwilling to avail himself of that protection. As the majority judgment in S152/2003 indicates, Nepal was not required to guarantee the applicant’s safety, but to meet the international standards of protection to which their Honours referred.

45                  The Tribunal’s consideration of the availability of state protection in Nepal is set out in the passage in [6] above. It is contended on behalf of the applicant that the Tribunal failed to address the question required by s 36(2) of the Act as explained in S152/2003.

46                  In my view, the Tribunal’s approach indicates that it was addressing an alternative or additional reason for concluding that the applicant’s fear of harm from the Maoists was not as a fact well-founded. I do not consider its reasons involved looking at the significance of the available state protection in Nepal in the way the majority in S152/2003 directed. The introductory word to that part of its reasons ‘moreover’ suggests that. So too does the succeeding paragraph (not quoted in [6] above) referring to the ‘well-founded fear’ test, and distinguishing it from requiring the state to absolutely protect its citizens from serious harm at the hands of non-state agents motivated by a Convention reason. So too does the second paragraph of the quoted passage, and the Tribunal’s concluding observations or summary to that part of its reasons where it repeats the finding that the applicant does not have a well-founded fear of persecution for a Convention reason.

47                  I have earlier in these reasons reached the view that the Tribunal must have misunderstood or misapplied the law in addressing whether the applicant has a well-founded fear of harm from Maoists for reason of his political opinion. The Tribunal would have applied that (erroneous) approach to its consideration of the issue, at the time it was taking into account the evidence about the availability of state protection in Nepal as well as in its consideration of the claim before that point. I therefore conclude that this stage of the Tribunal’s reasons also involves jurisdictional error concerning what amounts to a well-founded fear of harm.

48                  I am mindful of the possibility that the Tribunal, whilst making the jurisdictional error I earlier found, did not do so at this point in its reasoning. If it had at this point in its reasons correctly applied the law as to what amounts to a ‘well-founded fear’, that would involve the Tribunal having adopted different measures of what constitutes a well-founded fear of persecution at different points in its reasoning. There is no reason to think it did that. Indeed, the contrary is the case.

49                  The Tribunal referred to the independent evidence and the applicant’s evidence about the level of state protection from the threat posed by Maoists. The Tribunal’s recitation of independent evidence recorded the Maoist insurgency, its proscription, and following the failure of ‘peace talks and ceasefire arrangements’, the declaration of a state of emergency on 26 November 2001. It recorded the establishment of a paramilitary Armed Police Force in August 2001 to combat the insurgents, and that the Royal Nepal Army then was also beginning to assume a ‘domestic-security role’ in response to the insurgency, and that it had been mobilised to fight the Maoist rebels. Anti-terrorism laws had been reinforced. There were reports of excessive exercise of arrest and detention powers against those seen as sympathetic to the Maoists. The sources of the Tribunal’s information are contained in the application book. They supported the Tribunal’s observations.

50                  The material also confirms the Maoist insurrection has been waged ‘through torture, killings, bombings, extortion and intimidation against civilians and public officials’. Much of the independent material referred to by the Tribunal focuses on alleged human rights abuses by the Nepalese authorities against Maoists or perceived Maoist sympathisers involved in demonstrations or whilst in custody, and against others suspected of criminal offences. There is also an extensive catalogue of Maoist abuses. Many police have been killed in Maoist attacks. In addition, many Maoist attacks on civilians are recorded, some aimed at political figures and some apparently random. There are a significant number of Maoist abductions of civilians, including apparently political opponents of the ‘People’s War’, including 23 in the latter half of 2001. Maoist violence is described as often targeted at political leaders, local elites, and suspected informers including members of the applicant’s political party. In the three month period July to September 2001 (during the ceasefire), there were 22 reported cases of Maoists beating and injuring civilians. Since the insurgency (to the end of 2001), according to the United States Department of State, Country Reports on Human Rights Practices – 2001: Nepal, some 508 police and 340 civilians had been killed, and on the other side some 1414 insurgents had been killed.

51                  That picture was generally confirmed by the other sources to which the Tribunal referred. Jane’s Intelligence Review, Asia, 2001 October 1, described the insurgents as having:

‘now established influence in most of the country’s 75 districts, eliminated government functionaries and supporters, disrupted government and foreign-funded development projects and seized control over vast stretches of territory’.

The BBC News, 26 November 2001, referred to Nepal being in serious risk of descending into outright civil war following the end of the ceasefire.

52                  The Tribunal referred also to the applicant’s evidence and the material he provided. His oral evidence provided no basis for the Tribunal being satisfied that the state protection available to him removed any real chance of him being harmed by the Maoists. The applicant also provided extensive material to the Tribunal with a submission from his migration agent dated 10 October 2002. It was the source of the 2001 letter and the letter of 16 July 2000. The submission referred at some length to the United States Department of State, Country Report referred to above, and to information taken from two web sites about the Maoists in Nepal.

53                  That material demonstrates, as the Tribunal found, that Nepal has a range of mechanisms in place to protect its citizens from the threat posed by the Maoist insurgency. It shows those mechanisms are exercised by the Nepalese authorities against Maoists or Maoist sympathisers, sometimes inappropriately. The anti-insurgency measures have been vigorous and extensive. It shows the existence of an independent judicial system, but one to some degree vulnerable to political pressures. The judicial system was not part of the applicant’s concerns. He did not fear that he might himself be arrested and be subject to its processes.

54                  The Tribunal made the point that the fact that some members of his political party have been murdered or kidnapped by Maoists does not demonstrate that he faces a real chance of persecution by Maoists. But, the Tribunal had before it the 2001 letter as well as the letter of 16 July 2000 which each expressly identified the applicant as a target of the Maoists. For the reasons already given, the Tribunal’s factual conclusion must in my judgment expose an unstated but clear error of law, when addressing the applicant’s claims, on its part as to what amounts to a well-founded fear of harm.

55                  I am mindful also that an erroneous finding of fact on the part of the Tribunal does not amount to jurisdictional error. Nor does it necessarily demonstrate jurisdictional error. In this instance, I have come to the view that in some unstated way the Tribunal’s findings reflect an erroneous understanding or application of the law.

56                  Section 36(2) of the Act, in the way described above, requires the Tribunal to be satisfied that the applicant has a well-founded fear of persecution for a Convention reason. A fear is well-founded if there is a real chance that the putative refugee will be persecuted if returned to the country of nationality, and a real chance is one which is substantial and not remote or far fetched: Chan per Mason CJ at 389 and per McHugh J at 429. In my judgment, the Tribunal did not apply that test.

57                  I have therefore come to the conclusion, as I did in respect of the first of the two steps in the Tribunal’s reasoning which the applicant has attacked, that somehow the Tribunal has not asked itself the correct question (assuming, on this issue the proper question to ask was whether, in the light of available state protection, the fear of persecution is well-founded) or has misapplied the law. It is not for the Court on this application to determine whether the information which the Tribunal relied upon showed that, despite the extensive Nepalese response to the Maoist insurgency, there is a real chance that the applicant will be harmed by Maoists as he fears (and as has been threatened).

58                  On the basis of the majority judgment in S152/2003, if the Tribunal was satisfied that the applicant faces a real chance of being serious harmed by Maoists in Nepal, so that his fear of such harm is well-founded, its task then was to determine whether Nepal has taken reasonable measures to protect persons in the position of the applicant from that risk of harm. In the present circumstances, the focus would be upon whether the police and other security forces are reasonably effective and meet international standards. The Tribunal did not address that question. Its failure to do so in those terms is no doubt because the High Court decision in S152/2003 had not been delivered at the time of its decision. I consider the failure to address that question constitutes jurisdictional error, as the Tribunal was required by law to do so. As with other issues of fact, it is not now for the Court to itself embark upon any fact finding process.

59                  As I think the Tribunal has misapplied the law in the way I have described, I am unable to infer that the Tribunal might have applied a more stringent test as to the adequacy of state protection than that indicated by the majority judgment in S152/2003, and so it must necessarily have been satisfied that Nepal has taken reasonable measures to protect the lives and safety of its citizens, including an appropriate criminal law and the provision of reasonably effective and impartial police forces (and, in this instance, other security forces). The Tribunal did not in fact address that question. It is not for the Court to determine itself on the evidence before the Tribunal what answer the Tribunal might have come to if it had correctly addressed that question.

60                  For those reasons, I make an order removing to this Court the decision of the Tribunal of 31 December 2002 for the purpose of quashing it. I order the Tribunal to hear and determine the application of the applicant to the Tribunal made on 12 March 2002 to review the decision of the delegate of the first respondent made on 20 February 2002 according to law. The first respondent should pay the costs of the application to the applicant. There is no order as to the costs of the second and third respondents.

Associate:

Dated: 8 July 2004