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MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa - whether the applicant has a well founded fear of persecution - whether there is a real chance that the applicant would suffer persecution if returned - whether the Tribunal's decision was unreasonable according to the Wednesbury test.

NASL v Minister for Immigration [2003] FMCA 72 (12 March 2003)

NASL v Minister for Immigration [2003] FMCA 72 (12 March 2003)
Last Updated: 14 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NASL v MINISTER FOR IMMIGRATION
[2003] FMCA 72



MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa - whether the applicant has a well founded fear of persecution - whether there is a real chance that the applicant would suffer persecution if returned - whether the Tribunal's decision was unreasonable according to the Wednesbury test.



Migration Act 1958 (Cth), s.474

Judicial Review of Administrative Action, 2Ed, Aronson and Dyer, 2000

Abebe v Commonwealth of Australia (1999) 162 ALR 1

Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223

Attorney General (NSW) v Quin (1990) 170 CLR 1

Bromley London Borough Council v Greater London Council [1983] 1 AC 786

Canwest Global Communications Corp v Australian Broadcasting Authority (1998) 153 ALR 47

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

Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374

Minister for Immigration, Multicultural Affairs v Eshetu (1999) 162 ALR 577

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 126 CLR 24

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

Plaintiff S157 v Commonwealth of Australia [2003] HCA 2

Pulhofer v Hillingdon London Borough Council [1986] 1 AC 484

Thredgold v Australian Community Pharmacy Authority [1999] FCA 23

Applicant:
NASL



Respondent:


MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 957 of 2002



Delivered on:


12 March 2003



Delivered at:


Sydney



Hearing date:


5 March 2003



Judgment of:


Raphael FM


REPRESENTATION

Solicitors for the Applicant:


Mr Michael Jones



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Spake Helmore Solicitors



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.


FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 957 of 2002

NASL


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of Peru who arrived in Australia with his wife and son on 20 February 2001. On 6 April 2001 he lodged an application for protection (Class XA) visa. On 21 May 2001 a delegate of the Minister refused to grant the protection visa and on 4 June 2001 the applicant applied for a review of that decision from the Refugee Review Tribunal. The Tribunal interviewed the applicant and his wife and made its decision on 28 June 2002 handing it down on 23 July 2002. The applicant seeks review of that decision which was to uphold the decision of the delegate.

2. When the matter came on before me the applicant referred to an amended application filed on 3 February 2003. It was agreed that this amended application excluding paragraph 1 thereof would constitute the applicants pleading in this case. The grounds of the application are:

"(1) The Tribunal erred in law in its finding that the applicants claims were not well-founded in that the finding was unreasonable and no reasonable person could have made it.

Particulars

The Tribunal accepted all of the applicant's claims, including the claim to have been seriously assaulted and threatened by people with apparent military and police connections, and on that basis the only reasonable finding open to it was that there was a real chance that the applicants would suffer persecution on the grounds of imputed political opinion on return to Peru."

3. The applicant is an IT specialist. He worked for approximately ten years between 1990 and March 2000 for a Peruvian bank in Lima. He took voluntary redundancy from the bank on 31 March 2000 but was recalled as a consultant in July of that year. At the end of October 2000 he was called into a meeting with the Manager of Information Security and requested to undertake a detailed investigation of certain accounts at the bank for the previous ten years. He was asked to create a computer program to assist in undertaking this work. The accounts which he was to investigate were those belonging to persons closely connected with the now infamous Fujimori regime including Mr Fujimori's head of National Intelligence Vladimiro Lenin Montesinos Torres. An interim government had come into power in Peru after Mr Fujimori had been ousted and it appeared determined to reveal the extent to which the Fujimori government had utilised the finances of the country for its own purposes.

4. The interim government of Paniagua gave way to the elected government of President Toledo but the applicant's work continued. He discovered a considerable amount of information concerning Mr Mostesinos Torres and others. Some of this information became public. Certain people were charged with offences and Mr Torres was also charged. The General Manager of the bank was revealed to have been in cahoots with Mr Torres and was publicly implicated in his corrupt dealings.

5. On 13 December 2000, a senior person from the bank contacted the applicant on his mobile phone. He was told that there was a new list with names of businesses to search for. As he was proceeding towards the bank at about 6pm that evening an incident occurred. The applicant was stopped by a car with three men inside. One of these men was dressed in a police uniform. They aimed a gun at the applicant's head and pushed him against the car with one arm on the roof of the car and the other up his back. They searched his pockets and took his phone, his wallet and his briefcase. These people forced him into the car and told him that they knew about his work at the bank and that he had something they wanted. What they wanted was the accounts and information in relation to Mr Montesinos Torres, the current President Mr Toledo and his wife who had once worked at the bank. They threatened to kill the applicant. They wanted him to erase all the information about the accounts of people that he had been investigating from the computer system. They told the applicant that they had already been to his home and that his wife had already given them information. They threatened to kill his wife and son if he did not do as they said and told him not to report the incident.

6. The applicant agreed to assist these men. He returned to his home and discovered that what they had said was true. His wife had been beaten around and his son was in a state of shock. The applicant provided the information that was required but he was unable and unwilling to destroy the information on the computers. He and his wife left their home and moved nearby to the homes of relations.

7. The applicant went to live with his aunt and his wife and son went to live with his mother-in-law. The applicant was fearful about his refusal and inability to do anything about destroying the records on the computer. He reported the incident to the bank who told him that they could not protect him but they would assist him to leave the country. This was done. A visa was obtained for Australia. The applicant left in February 2001 having only once returned to his former home.

8. The applicant maintains that he has a genuine fear that if he returns to Peru he will be the subject of persecution from those persons who arranged for this incident to happen and/or from the General Manager of the bank. He believes that the Government would be unable or unwilling to protect him and that the reason for the likely persecution is his imputed political opinion of being against those members of the former Fujimori Regime.

9. It was not disputed by the respondent that since the decision of the High Court in Plaintiff S157 v Commonwealth of Australia [2003] HCA 2 a decision made in excess of jurisdiction is not a "privative clause decision" within the meaning of s.474 of the Migration Act 1958 (Cth) ("the Migration Act"). It was also not disputed that a decision of the type found in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 as discussed by the High Court in Attorney General (NSW) v Quin (1990) 170 CLR 1 and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 126 CLR 24 and applied in migration circumstances in the cases of Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 and Abebe v Commonwealth of Australia (1999) 162 ALR 1 would constitute jurisdictional error.

10. The Tribunal accepted in full the factual details of the applicant's claims (see CB 128.2, 128.5, 129.1, 129.2, 129.3, 129.6, 129.9, 130.1). These claims may be summarised as follows:

(a) He was contracted by his former employer to undertake a confidential investigation of the bank's records to find transactions involving Vladimiro Montesinos, the former head of the Peruvian National Intelligence Service and members of his family, and subsequently to also investigate the banking transactions of other leading political, military and business people.

(b) The evidence, which he gathered, was critical to the criminal investigation and arrest of Montesinos.

(c) Following this, the applicant and his family were assaulted by three men, one in police uniform, and threatened with death if he did not hand over information from the bank about the Presidential candidate (now President) Toledo and his wife, and also demanded that he destroy the bank's records relating to Montesinos and his collaborators.

(d) The applicant was unable to comply with the demands put on him and felt threatened for his life. He informed the bank who were unable to do anything to protect him other than arrange for him and his family to leave Peru.

(e) Between the time of the assault and the family's departure from Peru they did not stay at their home but went to stay with a relative.

(f) The General Manager of the bank, who remains in place, is also implicated in the Montesinos affair.

11. At [CB 130] the Tribunal makes a finding which goes to the core of the applicant's claim. It is in the following form:

"I do not accept the applicant's final evidence at hearing this matter to the effect that he `had to move around' (see page 14 above). Even on his own evidence at the beginning of the hearing he did not `move around' but went to stay at his aunt's place in another suburb of Lima, and only a short distance away (both he and his wife indicated a distance of half an hour). Most importantly, he continued to work at his `day job' until he left Peru in February 2001. I do not accept that these men, or other people not known to the applicant, would not have been able to locate the applicant over these two months if they had a serious interest in him. If the information held by the bank was of such importance to them, they would have ensured that the applicant did something at that time. I do not accept that these people would take revenge against him because he did not destroy the information if he now returned to Peru, when they took no further action against him at that time. I do not find the applicant's explanations that they did not find him then because of God's help and because his wife and son did not go out very convincing (see page 14 above). The applicant's own evidence is that he did go out, and continued to work at the same place. He did not go into hiding, but went to stay at his aunt's in another suburb."

It is the applicant's submission that the conclusion reached by the Tribunal that the applicant was safe from the dangers posed by the three men or their controllers because they had, in effect given up, was made without applying the `real chance' test that he submitted had been formulated in Chan. The applicant submitted that the other findings about the applicant's ability to obtain protection from the current regime could not have been made without an investigation of who was behind the three men and that the only reason the Tribunal did not carry out this investigation was because it had discounted the threat which no reasonable Tribunal could have done.

12. There is a helpful discussion of the doctrine of unreasonableness in Judicial Review of Administrative Action, 2Ed, Aronson and Dyer, 2000 where at 285 the learned authors quoting from cases such as Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 410; Bromley London Borough Council v Greater London Council [1983] 1 AC 786 at 821; Pulhofer v Hillingdon London Borough Council [1986] 1 AC 484 at 518; Canwest Global Communications Corp v Australian Broadcasting Authority (1998) 153 ALR 47 at 83-84; Thredgold v Australian Community Pharmacy Authority [1999] FCA 23; Minister for Immigration, Multicultural Affairs v Eshetu (1999) 162 ALR 577 at par 101 and Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36 indicate that the bar to a finding of unreasonableness amounting to a cause for judicial review is set exceedingly high. Perhaps the best expression of this bar for the purposes of the instant case in found in the judgment of Lord Brightman in Pulhofer (supra) at 518:

"Where the existence or non existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debateable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious where the public body, consciously or unconsciously, has acted perversely."

13. It is the applicant's argument that by applying the `real chance' test found in Chan (supra) I can accept that the Tribunal's decision was unreasonable to the required standard to allow for judicial review. Mason J in Chan at 389 says:

"I agree with the conclusion reached by McHugh J that a fear of persecution is `well-founded' if there is a real chance that the refugee will be persecuted if he returns to his country of nationality."

At 434 McHugh J says:

"But since the appellant was identified with `anti-revolutionary' political opinion and had been exiled for it until he escaped from China, it would be unreasonable to hold that the appellant's fear of further exile or detention was not well-founded. Not withstanding the time which has elapsed since his escape, it would be unreasonable to hold that there was no real chance that he would again be exiled or detained if he returned to China. The authorities have continued to maintain interest in him."

14. Chan was a case in which the court was able to find that there was a real chance of continuing persecution because all the evidence pointed one way and no evidence pointed the other. It was because of this evidentiary situation that the court was able to find that the action of the Tribunal was unreasonable to the Wednesbury standard. The difficulty, which I have, is being able to apply Chan to the facts of this particular case. In the paragraph which I set out at [11] it can be seen that the Tribunal has provided a number of reasons why it comes to the conclusion that the three men are no longer interested in the applicant. Whilst there are some matters of conjecture, "I do not accept that these people would take revenge against him because he did not destroy the information if he now returned to Peru, when they took no further action against him at that time" there are others based on fact "he continued to work at his day job until he left Peru", "the applicant's own evidence is that he did go out", "he did not go into hiding but went to stay at his aunt's house in another suburb". These matters seem to me to indicate that the decision is one of the type referred to by Lord Justice Brightman from the first part of the quotation from Pulhofer and given their existence it would be difficult to say that the public body, consciously or unconsciously, was acting perversely.

15. If the finding of the Tribunal concerning the applicant's objective fear is not susceptible to review then it cannot argued that the other conclusions of the Tribunal which were dependent upon that one finding were made with a want of jurisdiction. The applicant argues that all the constituents of the definition of a refugee were not considered by the Tribunal but this is not consistent with the reasons especially those found between [CB131-133].

16. The applicant has not satisfied me that the Tribunal made findings which were not open to it. This case is not one of those "rare birds" (per Lord Scarman) which fly the flag of unreasonableness. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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