FEDERAL COURT OF AUSTRALIA

SZBAL v Minister for Immigration and Multicultural

and Indigenous Affairs [2005] FCA 263

MIGRATION – application for protection visa – imputed political opinion – provision of financial support to political organisation - proper application of enacted laws – legitimate state objectives – whether RRT failed to address integer of claim - whether RRT finding illogical, irrational or lacking a basis in finds or inferences of fact – whether “prisoners of Indonesia” constitute a particular social group - leave to rely on proposed grounds not run below

Applicant A v Minister for Immigration and Ethnic Affairs [1997] 190 CLR 225 referred to

Applicant S v Minister for Immigration and Multicultural Affairs 206 ALR 242 referred to

Applicant S454/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1136 distinguished

Branir v Owston Nominees (No 2) Pty Limited (2001) 117 FCR 424 referred to

Buck v Bavone (1976) 135 CLR 110 referred to

Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293referred to

Coulton v Holcombe (1986) 162 CLR 1 applied

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 referred to

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to

Minister for Immigration and Multicultural Affairs v Israelian (2001) 206 CLR 323 referred to

Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 197 CLR 611 referred to

MZQAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 53 referred to

R (Sivakumar) v Secretary of State for the Home Department [2003] 1 WLR 840 referred to

Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 referred to

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

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 referred to

Welivita v Minister for Immigration and Ethnic Affairs [1996] FCA 989 referred to

SZBAL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 47 of 2005

JACOBSON J

6 MAY 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

            1.         The appeal be dismissed.

            2.         The appellant pay the respondent’s costs in the proceedings.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Federal Magistrate Barnes, given on 16 December 2004, dismissing an application for review of a decision of the Refugee Review Tribunal (“the RRT”), made on 4 November 2002 and handed down on 27 November 2002, refusing to grant protection visas to the appellants. 

2                     The appellants are a husband and wife from Indonesia.  They have three children who are not parties to the proceedings although they are affected by the outcome.  All of the grounds of appeal relate to the husband’s claims and I will refer to him as “the appellant”. 

3                     The appellant is, or claims be, of Padang ethnicity (from Sumatra) and a Muslim.  He lived and worked in Jakarta from at least 1988, being a self-employed trader between 1988 and 1998 and a technician with a large company from 1998 until his departure from Indonesia.  The wife was born in Jakarta and appears to have lived there at all relevant times.

4                     The appellant arrived in Australia on 23 September 2001.  He was joined by his wife and children on 9 March 2002.  The appellant applied for a protection visa on 22 October 2001, that is to say, before the arrival of his wife and children in Australia.  His application was refused by a delegate of the Minister on 31 December 2001, and on 30 January 2002 he applied to the RRT for a review of the decision.

5                     The wife and children applied for protection visas on 6 June 2002.  Their applications were refused by a delegate on 18 June 2002 and they then applied to the RRT for a review.  The two separate decisions of the delegate (that is, for the appellant and for the wife and children) were reviewed and affirmed by the same member of the RRT in a decision dated 4 November 2002 and handed down on 27 November 2002.

6                     The appellant claimed to fear persecution “because of his involvement in the Free Aceh Movement (GAM)” which is an acronym for Gerakan Aceh Merdeka (“GAM”).  The appellant claimed that he had Acehnese friends living in Jakarta and that he heard about GAM from some of them.  He claimed that for several months from January 2001 he donated money to his friends for fellow GAM members.

7                     The appellant also claimed that, on 30 June, 2001, the Indonesian military police raided his house and that he was detained for 3 days and tortured.  He claimed that he was not charged but that he was released when he signed an undertaking not to give GAM further financial assistance.  He said he was released on condition that he report to the local police station three times a week but that he decided to leave Indonesia because he was afraid he would be detained again.

8                     The RRT rejected the appellant’s application for review for three essential reasons.  First, although the RRT accepted that the appellant had some low level contact with GAM members and may have made modest donations to them, it was not satisfied that the authorities were seeking to re-arrest him.  It found that the authorities had nothing more than a watching brief on the appellant when he left Indonesia.

9                     Second, the RRT was satisfied that the authorities’ interest in the appellant was not in relation to his political opinion or ethnicity but by reason of his financial support for the GAM, which was engaged in unlawful and violent activities.  That is to say, any fear of persecution was not for a Convention reason.

10                  Third, whilst commenting critically upon the degree of force said to have been used by the authorities upon the appellant when he was in detention in June 2001, the RRT was not satisfied that any mistreatment was for a Convention reason.

11                  Six grounds of review were pursued before the Federal Magistrate.  The first took issue with the RRT’s adverse finding of credibility against the appellant.  The learned Magistrate was of the view at [21] that the finding was open. 

12                  The remaining grounds of review took issue with the RRT’s finding that any harm suffered lacked the necessary Convention nexus.  The Federal Magistrate concluded at [28] that it was open to the RRT to find that the requisite Convention nexus was absent.

13                  The learned Magistrate also dismissed the application for review on an alternative basis at [30].  This was that even if the RRT had committed any jurisdictional error in relation to past mistreatment, there was a separate finding that the appellant did not have a well-founded fear of persecution in the future.  She said that in light of the RRT’s findings that the appellant had not been mistreated after his release from detention and had been able to leave Indonesia freely, it was open to the RRT to find that any future mistreatment would not be for a Convention reason.          

14                  Three grounds of appeal were argued.  The first was the RRT failed to deal with an essential integer of the appellant’s claims by failing to make a finding as to whether political opinion was or might have been imputed to him.

15                  The second ground was that a determination by the RRT that the Indonesian authorities did not impute a political opinion to the appellant was illogical.

16                  The third ground of appeal was that the RRT failed to consider whether the appellant’s mistreatment was by reason of his membership of a particular social group.

17                  The second and third grounds of appeal were not put forward as grounds of review before the Federal Magistrate.

18                  There were other grounds of appeal in the amended Notice of Appeal filed on
1 March 2005 but they were not pursued.

The RRT’s Decision

19                  The RRT stated that it had serious difficulties with several aspects of the appellant’s evidence.  In particular, it was concerned about the different evidence given by the appellant and his wife as to the appellant’s attendance at the police station between July and September 2001.

20                  The RRT pointed to what it found to be a change in the appellant’s evidence as to his attendances at the police station.  It said that, initially, when he was asked whether he had attended the police station three times a week as required from July 2001 until his departure in September 2001, he said that he had done so.  However, when the RRT put to him that he had not been re-arrested despite regular reporting to the police, he made a claim that he had only reported three times in the first week and had then gone into hiding. 

21                  The RRT was satisfied that the appellant deliberately fabricated his testimony on the new claim in an attempt to counter the RRT’s observation that he had not been re-arrested between July and September 2001 and that he had been able to obtain a passport and leave Indonesia.

22                  The RRT accepted that the appellant had “some social or business contact” with persons involved in GAM and that he “may have made some modest donations” to them.  It found that as a result of the contacts and donations, the appellant was detained, questioned and warned against continuing his contact with GAM.

23                  The RRT found that the appellant was released after three days and “whatever the truth with regard to his friends who he said were directly involved with GAM” the appellant was not re-arrested.  It was satisfied that the authorities could have re-arrested the appellant during the period from July 2001 to September 2001 had they wished to do so because he was in regular contact with the police and was living at home.  It found that the appellant was able to obtain his passport without difficulty in August 2001 and to depart openly in September 2001.

24                  The critical passage in the RRT’s reasons is as follows:-

 “The Tribunal is not satisfied that the authorities were seeking to re-arrest the Applicant or had anything more than a ‘watching brief’ on the Applicant at the time he left Indonesia.  Nor is the Tribunal satisfied that their interest in the Applicant at the time he was detained in June 2001 or at the time he left Indonesia in September 2001 was for any reason other than his suspected involvement with an organisation engaged in illegal and violent activities and/or the belief that he could provide information about others more directly involved in that organisation, with whom he had had contact.  The Tribunal is satisfied that it is not necessarily unreasonable or persecutory for the authorities to wish to question or arrest persons in such circumstances.  Their interest in the Applicant (who is not even Acehnese) was not in relation to his political opinion (or ethnicity) but his material support for GAM and the information he might provide about GAM members.”

25                  The RRT went on to say that to the extent that a person may face investigation or arrest on suspicion of involvement in an armed insurrection, this does not necessarily amount to persecution for a Convention reason.  It set out the following passage from the judgment of Lindgren J in Welivita v Minister for Immigration and Ethnic Affairs [1996] FCA 989 (“Welivita”) at p 21:-

“Clearly the mere fact that a person will, upon returning to his or her country of nationality, be prosecuted and penalised for a criminal offence does not establish the existence of a well-founded fear of persecution for reasons of political opinion… the mere fact that the criminal offence was ‘politically motivated’ makes no difference.”

26                  The RRT accepted that the authorities’ interest in the appellant may have been heightened by his departure overseas and his failure to comply with agreed reporting conditions.  But the RRT was not satisfied that this enlivened a Convention ground because the authorities’ interest in the appellant upon his return would arise from failure to comply with Indonesian law.

27                  As to the degree of force applied against the appellant when in custody and the roughness of the questioning of the wife by the military police, the RRT found that the treatment was not “particularly extreme”.  Nevertheless, it observed that such treatment could not be defended.

28                  The RRT referred to a report by the United States State Department in which it was said that Indonesian security forces continued to use torture and other forms of mistreatment and that police often resort to physical abuse.

29                  The RRT observed that a person detained for a non-Convention reason may subsequently be mistreated, for example, for his or her ethnicity.  This could constitute persecution for a Convention ground.  However, the RRT was not satisfied that this has occurred, or would occur, in the present case.

The Federal Magistrate’s Decision

30                  The Federal Magistrate considered the first ground of review, namely that the credibility finding was not open, at [12] – [21] of her reasons for judgment.  It is unnecessary to set out her Honour’s reasons on this ground in detail.  As I said earlier, she found at [21] that the findings were open to the RRT.  Her Honour also found at [21] that no error was demonstrated in the manner in which the RRT made adverse credibility findings against the appellant.

31                  The learned Magistrate considered the Convention nexus ground at [22] – [29].  Her Honour said that this ground of review was what was put forward in the numbered grounds 2, 3, 4, 5 and 7 of the application.  She recorded, in some detail, the submissions made by counsel in support of this ground. 

32                  The principal submission seems to have been that the RRT was in error in finding that any interest of the authorities in the appellant was not by reason of his political opinion but by reason of his material support for the GAM.  It was submitted, as recorded at [23], that the provision of material support for an association is a tangible expression of political opinion.  Hence it was argued that the arrest for provision of financial support to the GAM was by reason of the appellant’s political opinion and that his persecution arose from that opinion.

33                  The Federal Magistrate referred at [25] to the appellant’s contention that the evidence established that when he was interrogated, questions were asked about his involvement in GAM and that he was pressured to recant from it.  This was said to demonstrate a clear nexus between the appellant’s mistreatment and the Convention.

34                  However, her Honour said at [26] that it was for the RRT to determine whether or not the appellant was being imputed with a political opinion as opposed to someone who had given financial support to an illegal organisation.  She referred to the observations of Lindgren J in Welivita set out above.  She also set out a passage from the judgment of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs [1997] 190 CLR 225 (“Applicant A”) at 259 in which his Honour said that in cases concerned with political opinion the issue of persecution may be difficult to resolve where the sanction arises from the application of enacted laws but a government cannot be expected to condone political opinion that calls for its violent overthrow.

35                  I will set out the relevant part of what her Honour said at [26] as follows:-

“… the fact that a person may face investigation, questioning or arrest on suspicion of involvement by providing material support to and information about an organisation engaged in illegal and violent activities (i.e. involvement in the armed Acehnese insurrection) did not of itself necessarily amount to persecution for a Convention reason where any arrest or possible mistreatment was for a criminal offence was consistent with the authority in Welivita .”

36                  Her Honour concluded at [28] that it was open to the RRT to find that the necessary Convention nexus was absent.

37                  The alternative ground on which the application was discussed appears at [30].  It is not necessary to set out the reasons expressed in that paragraph which I have summarised earlier in my judgment (see [13] above).

Imputed Political Opinion

38                  The appellant submitted that the RRT failed to make a finding, either directly or by inference, as to whether the authorities had imputed a political opinion to the appellant, and that the federal magistrate erred in attributing such a finding to the RRT.  The appellant also submitted that the RRT did not properly consider whether the appellant had a well-founded fear of persecution for reason of an imputed political opinion. 

39                  The RRT’s reasons made no express reference to imputed political opinion.  It is well established that for the purposes of the Convention a political opinion need not be one that is actually held by a refugee.  It is sufficient if such an opinion is imputed or ascribed to the refugee by the persecutor even if the refugee does not hold the imputed opinion; see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 (“Guo”)(Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); see also Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 at 49 (Sackville J).

40                  There is considerable force in the proposition that a person who provides financial support to a political organisation would be imputed by the authorities with political opinions akin to those of the organisation.  However, it seems to me that the RRT made a finding of fact that the authorities’ interest in the appellant was solely by reason of the support he had given to the GAM and the information which he might thereby be able to give to the authorities about GAM members.  In stating that the authorities’ interest was for this reason and “not in relation to his political opinion” the RRT seems to have made a finding of fact which excluded both actual and imputed opinion.

41                  Although the line which the RRT drew between financial support for the GAM and political opinion was a fine one, I am not persuaded that the Federal Magistrate was in error in coming to the view that the RRT made a factual finding adverse to the appellant as to the reason for his mistreatment.

42                  The finding of the RRT may be considered to be a harsh one but I do not consider that the appellant has demonstrated error on the part of the Federal Magistrate in coming to the view which she reached about the effect of the RRT’s finding.

43                  Counsel for the appellant relied upon a decision of Gyles J in Applicant S454/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1136 (“S454”) which has similarities with the present proceedings   In S454 Gyles J was of the view that the RRT had committed jurisdictional error in failing to consider whether the applicant, who was a member of GAM, had been persecuted for a Convention reason.

44                  Gyles J said in S454 at [43] that the case involved the vexed question of the circumstances in which the members or followers of an organisation involved in an armed insurrection to support part of a state being given independence is persecution for a Convention reason, in particular, political opinion.

45                  His Honour set out the observations of McHugh J in Applicant A at 258-9 on this question.  There, McHugh J said that conduct will not constitute persecution if it is appropriate and adapted to achieving a legitimate object of the country of the asylum seeker.  He said that a legitimate object will ordinarily be one whose pursuit is required to protect or promote the general welfare of the state and its citizens.  McHugh J observed that the enforcement of a generally applicable criminal law does not ordinarily constitute persecution.  Thus, he said, that a law providing for the detention of members of a particular race engaged in a civil war may not amount to persecution but the sanction must be appropriately designed to achieve a legitimate end of government policy.

46                  McHugh J then said at 259:-

“In cases concerned with political opinion and the membership of particular social groups, the issue of persecution may often be difficult to resolve when the sanctions arise from the proper application of enacted laws. Punishment for expressing ordinary political opinions or being a member of a political association or trade union is prima facie persecution for a Convention reason. Nevertheless, governments cannot be expected to tolerate political opinion or conduct that calls for their violent overthrow. Punishment for expressing such opinions is unlikely to amount to persecution. Nevertheless, even in these cases, punishment of the holders of the opinions may amount to persecution. It will certainly do so when the government in question is so repressive that, by the standards of the civilised world, it has so little legitimacy that its overthrow even by violent means is justified. One who fled from the regime of Hitler or Pol Pot could not be denied the status of refugee even if his or her only claim to that status relied on a fear of persecution for advocating the violent overthrow of that regime.”

47                  Gyles J then referred to the remarks of Gleeson CJ, Gummow and Kirby JJ in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 (“Applicant S”) at [41] – [49] in which their Honours referred with approval to the observations of McHugh J in Applicant A and found that a proper application of these principles would have led to the conclusion that the Taliban was not pursuing a legitimate national objective in conscripting young able-bodied men in Afghanistan.

48                  The criteria to be applied were stated in the joint judgment at [43] – [45] as follows:-

“[43]  The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A. His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is "appropriate and adapted to achieving some legitimate object of the country [concerned]"  . These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293.  As a matter of law to be applied in Australia, they are to be taken as settled. This is what underlay the Court's decision in Minister for Immigration and Multicultural Affairs v Israelian (2001) 206 CLR 323. Namely, that enforcement of the law of general application in that particular case was appropriate and adapted to achieving a legitimate national objective.

 [44]   In Applicant A, McHugh J went on to say that a legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens.  His Honour gave the examples that (i) enforcement of a generally applicable criminal law does not ordinarily constitute persecution; and (ii) nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory. Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory.

 [45]   The joint judgment in Chen expanded on these criteria:

"Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilised world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective." (emphasis added)

That ultimate consideration points to the answer in the present case.”

49                  McHugh J’s views in Applicant S at [83] were to similar effect to those of Gleeson CJ, Gummow and Kirby JJ).

50                  In S454 Gyles J contrasted the approach of the High Court in Applicant S and Applicant A with that of the House of Lords in R (Sivakumar) v Secretary of State for the Home Department [2003] 1 WLR 840 (“Sivakumar”).  He said at [51] that Sivakumar draws attention to an issue not explored in detail by the High Court and encapsulated, in the following passage from the speech of Lord Hutton at [30]:-

“Excessive and arbitrary punishment does not in itself constitute persecution for one of the reasons specified in article 1A of the Geneva Convention.  But the fact of excessive and arbitrary punishment may, in the circumstances of a particular case, give rise to the factual inference that a reason for that punishment was the race or membership of a particular social group or political opinion of the victim.”

            and in the speech of Lord Rodger at [43] as follows:-

“I have difficulty, however, in seeing why—in a case such as the present—the use of extreme torture should in itself be a factor pointing to the conclusion that the applicant was, or would be, ill-treated for a Convention reason rather than as part of the security forces’ anti-terrorist operations.  Torture can be used for any number of wicked reasons.  When the Gestapo captured British agents dropped into Occupied France during the Second World War, they used extreme methods of torture to try to extract information from the agents about Resistance networks or to try to turn the agents so as to infiltrate those networks.  But the Gestapo did this as part of their fight against the Resistance whom the agents were sent to assist.  The Gestapo did not torture the agents because they were British or because they belonged to a particular social group or because of their political opposition to the German occupation.  Similarly, if members of the security forces in Sri Lanka were barbaric enough to torture their Tamil captives, I see no reason why the correct view should not be that, in some cases at least, they did so as part, albeit an illegitimate part, of their fight against those suspected of involvement in the Tamil Tigers’ terrorist attacks.”

51                 Gyles J’s conclusion is to be found at [56]  - [57] of his judgment as follows:-

“The Tribunal’s approach seems to have been along the lines of that adopted by the House of Lords in Sivakumar.  The applicant’s membership (albeit low level) of GAM meant that imprisonment, detention and interrogation by the authorities, even if strictly unlawful and even if involving mistreatment, was no indicator of persecution for a Convention reason.  Such conduct is explicable in defence of the State.

That view of the Convention is open, and has a good deal in its favour.  However, in my opinion, it is not consistent with the view taken in High Court authorities to which I have referred.  According to that view of the Convention, unlawful mistreatment in a case such as the present would be persecution by reason of political opinion as it would be occasioned by the underlying political opinion and would not be appropriate and adapted to the achievement of a legitimate objective of the State.”

52                  Counsel for the Minister formally submitted that the decision of Gyles J is not correct and that I ought not to follow it.  He submitted in the alternative that the decision is distinguishable because in S454 the RRT specifically found that the applicant was a member of the GAM and that there was a real chance that he would be detained on suspicion of such membership if he returned to Aceh.

53                  It is unnecessary to determine whether I should apply the conclusion reached by Gyles J in S454 because, in my opinion, his Honour’s conclusion turned upon the RRT’s finding that the applicant was a member of GAM.  This raised the question of whether the RRT had constructively failed to assert jurisdiction by determining whether there was a real chance that the applicant would suffer mistreatment by reason of the underlying political opinion if he returned to Jakarta. 

54                  In the present case the effect of the RRT’s findings was that the appellant was not a member of GAM and that he had ceased to give financial support to the GAM.  It also made an express finding that the authorities’ interest was not in relation to his political opinion.  Accordingly, I do not consider that the RRT failed to consider an essential integer of the claim.  The position is to be contrasted with the decision of the Tribunal which was reviewed by Gyles J in S454.

55                  Whilst I have not found it necessary to decide whether Gyles J’s views in S454 are applicable to the present case, in my opinion his Honour is correct in pointing to the difference of approach between the High Court and the House of Lords.  But, of course, that is not a question which I could, or should, consider.

56                  I do not think that the RRT erred in its application of the views expressed by Lindgren J in Welevita.  In my opinion, Lindgren J’s remarks are consistent with the views of McHugh J in Applicant A and the majority judgment in Applicant S, and it was open to the RRT to apply those views in determining the application before it.

57                  It was not submitted that the RRT had failed to ask itself whether any discriminatory treatment of the appellant was appropriate and adapted to achieving some legitimate state objective.  That is ultimately a matter for the decision maker; see MZQAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 53 at [20] (Branson, Marshall, Hely JJ).

Grounds of appeal not run below

58                  The authorities on the limitations which apply to the question of issues put forward for the first time on an appeal were drawn together and analysed by Allsop J in Branir v Owston Nominees (No 2) Pty Limited (2001) 117 FCR 424 at [34] – [39].

59                  Allsop J observed at [36] that an appeal is not a reworking of the trial taking into account such impediments as are thrown up by the primary judge’s findings which alter the landscape.  He set out the following passage from the decision of the High Court in Coulton v Holcombe (1986) 162 CLR 1 (“Coulton v Holcombe”) at 7:-

“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.  If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

60                  A Full Court (Kiefel, Weinberg and Stone JJ) in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 (“VUAX”)said at [46] that the principle is that leave to argue a new ground should only be granted if it is expedient in the interests of justice to do so.

61                  In VUAX at [48] their Honours observed that the practice of raising arguments for the first time on appeal has been prevalent in migration matters.  They said that leave may be granted if a point has “clear merit” and there is no prejudice to a respondent in permitting the point to be agitated.  Their Honours also said that where there is no adequate explanation for the failure to take a point and it seems of doubtful merit leave should generally be refused. 

62                  In the present matter there has been no real explanation of the failure to take the “illogicality” and “particular social group” points before the Magistrate.  It is to be noted that the appellant was represented by counsel before the Federal Magistrate.

63                  I will deal with the question of whether either of the proposed grounds has any merit. The Minister’s counsel did not point to prejudice in permitting the points to be agitated.  However, in relation to the “particular social group” issue he submitted that there was nothing put to the RRT to suggest that the appellant feared mistreatment because he was a member of the particular social group now asserted, ie, prisoners in Indonesia.

Illogicality

64                  The appellant argued that if the RRT’s finding was to the effect, as I have found, that the Indonesian authorities did not mistreat the appellant by reason of imputed political opinion, that finding was illogical, irrational or lacking a basis in findings or inferences of fact which were supported on logical grounds.

65                  In support of this argument, counsel for the appellant referred to Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 (“Applicant S20/2002”) and to a portion of the transcript of the RRT hearing:-

“Q – And then after three days you were released without being charged or taken to court?

A – Well for that three days I was really tortured and at the end of the three days I had to sign an agreement saying that I would not provide any further contributions to the Free Aceh Movement, but I was really torturd, I mean it was awful.

Q – What do you mean tortured, can you be more specific please?

A – So they asked me questions, they asked me, I was interrogated and tortured during interrogation but they asked me questions such as why are you helping the Free Aceh Movement, don’t you like you country [sic], why are you helping the Free Aceh Movement, do you like to see your country breaking up?”

66                  Counsel for the appellant also pointed to independent country information, being a US State Department Report released on March 4, 2002, entitled Country Reports on Human Right Practice in 2001: Indonesia, which the RRT quoted, and annexed to its decision.  The report indicates that the Indonesian government’s human rights record was poor, particularly in regions such as Aceh, West Timor and Papua, and that security forces assaulted persons during search operations for members of militant groups.  It was reported that security forces in Indonesia tortured and abused persons and security forces infringe on citizen’s privacy rights. 

67                  The report made particular reference to Aceh and stated that armed separatists, GAM, had harassed, abducted and killed dozens of civil society leaders, academics, politicians and other local residents as well as civil servants, police and soldiers.  In response, joint civilian-military and various other investigative bodies continued to pursue cases involving army and police officers.  It was also noted that security forces continue to employ harsh measures against separatist movements and the government rarely holds the military or police accountable for committing extra-judicial killings or using excessive force.

68                  In relation to criminal offences, the RRT made specific reference to the following part of the report:-

“The Criminal Code makes it a crime punishable by up to 4 years in prison for any official to use violence or force to elicit a confession; however, in practice legal protections are both inadequate and widely ignored, and security forces continued to employ torture and other forms of mistreatment, particularly in regions where there were active security concerns, such as Aceh and Papua.  Police often resort to physical abuse, even in minor incidents.”

69                  It was pointed out in Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 197 CLR 611 (“Eshetu”) at [40] per Gleeson CJ and McHugh J that to describe reasoning as illogical, unreasonable or irrational may merely be an emphatic way of expressing disagreement with it.  There must be precision as to the nature and quality of the error attributed to the decision-maker and the legal principal or statutory provision that attracts the suggested consequence.

70                  In Eshetu at [131] to [145] Gummow J analysed the long line of High Court authority which had dealt with judicial review of administrative action alleged to go beyond the power conferred by statute or by law.  The authorities included Buck v Bavone (1976) 135 CLR 110 (“Buck v Bavone”) in which Gibbs J said at 118-119 that the Court will interfere if the decision reached by a decision-maker is so unreasonable that no reasonable decision-maker could properly have arrived at it.

71                  Gummow J concluded at [145] by stating that the observations of Gibbs J in Buck v Bavone would permit review of decisions where the satisfaction of the decision-maker was based on findings of fact which were not supported by some probative material or logical grounds.

72                  The observations of McHugh and Gummow JJ in Applicant S20/2002 at [34] – [37] are to similar effect to the views which Gummow J expressed in Eshetu.

73                  In the present case the RRT, as I have said, made a finding that the Indonesian authorities did not mistreat the appellant by reason of political opinion but because of his support for the GAM as an illegal organisation seeking to overthrow the government by violent means and because of the information he may be able to provide about GAM members.

74                  It is true that the RRT made reference to country information which indicated the use of torture and mistreatment.  The RRT also criticised the mistreatment of the appellant by Indonesian authorities when he was in police custody.

75                  However, I cannot accept the submission that the RRT’s decision was so unreasonable that no reasonable tribunal could properly have arrived at it.  As I said at [40], the distinction which the RRT drew between financial support and political opinion was narrow.  However, the findings of fact which the RRT made were open.  The effect of the findings was that the appellant was detained because his financial support for the GAM might enable the authorities to track down or capture GAM members.  The RRT was satisfied by reason of the finding that the authorities kept a watching brief on the appellant and did not re-arrest him, that the authorities did not ascribe any political opinion to him.  That is to say, he had seen the error of his ways and did not have a real ground, as distinct from a speculative fear, of persecution for a Convention reason; see Guo at 572.

76                  Whilst the passage from the transcript set out at [64] above is indicative of political opinion, it was a matter for the RRT as to what weight it gave to that evidence; see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 at 41.  In any event, the RRT found that the “watching brief” indicated an absence of political opinion and an absence of any well-founded fear of persecution for a Convention reason.  The finding may be harsh but it is not illogical.

77                  Although there is no explanation for the failure to run this ground before the Federal Magistrate, it is a ground which finds some connection with the first ground of appeal, ie failure to address an essential integer of the appellant’s claim.  I cannot say that the point is of no merit but I do not consider it has been made good.

78                  I would grant leave to raise this ground of appeal but dismiss it.

Particular social group

79                  The appellant submits that the RRT did not properly consider whether the appellant was a member of a particular social group, or was likely to become a member of such a group, being people detained by Indonesian military and police or prisoners generally, and whether he was or would be persecuted by reason of his membership of that group.

80                  In support of this submission, counsel for the appellant pointed to the RRT’s acceptance of independent country information referred to at [28] and [65] – [66] above, and the RRT’s finding that the appellant may be detained upon return to Indonesia for violating agreed reporting conditions.  It was submitted that the RRT failed to understand that this inquiry should have been made, particularly as the applicants were unrepresented. 

81                  The Respondent’s submission is that there was no material before the RRT to suggest it ought to make such an inquiry, nor any material to support such a contention.  Furthermore, counsel for the respondent submitted that the ground is circular as the defining characteristic of “prisoners or detainees” as a social group is their fear of persecution.  He referred to Applicant A where the majority of the Court observed that a particular social group must be identifiable by a characteristic or attribute common to all members of the group, but that characteristic cannot be persecution itself.  At 242, Dawson J pointed to the circularity of the view that a group exists where what is said to unite those persons is their common fear of persecution.  

82                  Counsel for the appellant resisted this characterisation and submitted that being a prisoner is not defined by fear of persecution.  She argued that a prisoner is a person detained under law for a particular reason in society, deprived of the right to liberty which is ordinarily held by citizens in any State, and put in a position of being under the control of others.  Furthermore, being in detention has the result that a person is viewed and treated differently by society, leaving aside mistreatment or persecution.  She pointed out that there are prisoners in countries around the world, but it is only in some countries, which have a particular attitude to prisoners, where persecution occurs.

83                  The short answer to this point is that there is no suggestion anywhere in the material put to the RRT that the appellant was mistreated because he was a prisoner.  The claim put forward was that he was mistreated by reason of his connection to the GAM.

84                  To permit the argument that the appellant feared persecution by reason of his membership of a particular social group to be run for the first time on appeal would be to offend the basic principle stated in Coulton v Holcombe.  It is fundamental to the administration of justice that the substantial issues be settled at the trial, or in the decision under review.  The point which the appellant now seeks to argue cannot be raised on appeal because the foundation for such a claim was not made in the RRT.

85                  Accordingly, I refuse leave to raise this ground of appeal.

Orders

86                  The orders I will make are that the appeal be dismissed with costs.

Associate:

Date:                6 May 2005