FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1018 MIGRATION – protection visa application under s 36 Migration Act 1958 (Cth) – application for review under ss 476(1)(g) and 476(4)(b) Migration Act 1958 (Cth) – review of Tribunal decision – whether no evidence or other material to justify decision. Migration Act 1958 (Cth) ss 36, 476(1)(g) and 476(4)(b) Administrative Decisions (Judicial Review) Act 1976 (Cth) ss 5(1)(h) and 5(3)(b) Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 applied Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 considered LIEM SAKOLWAREE SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S 1 OF 1999 MANSFIELD J ADELAIDE 21 JULY 1999 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 1 OF 1999 BETWEEN: LIEM SAKOLWAREE SINGH Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: MANSFIELD J DATE OF ORDER: 21 JULY 1999 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. Application dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 1 OF 1999 BETWEEN: LIEM SAKOLWAREE SINGH Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: MANSFIELD J DATE: 21 JULY 1999 PLACE: ADELAIDE REASONS FOR JUDGMENT HIS HONOUR: 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 7 December 1998 affirming a decision of a delegate of the respondent not to grant to the applicant a protection visa. Background 2 The applicant was born on 15 October 1958 and is now forty. She was born in Thailand and is a Thai citizen. She arrived in Australia on 13 October 1996 and on 2 January 1997 applied for a protection visa by application dated 24 December 1996. 3 It is a criterion for the grant of a protection visa under s 36 of the Migration Act 1958 (Cth) ("the Act") that she is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act). In a practical sense, she must qualify as a refugee under Article 1A(2) of the Refugees Convention if she is to be entitled to the visa sought; namely that she is a person who: "… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [her] nationality and is unable or, owing to such fear, is unwilling to avail [herself] of the protection of that country …" The Claims 4 The application for the visa recorded the applicant's claims briefly in the following terms: "… I was a member of the Palang Dharma Party and was persecuted by members of the New Aspiration Party. This party through its members attacked my property and their economic and emotional attacks led to my seeking safety and security outside of Thailand." 5 She proposed to forward a detailed statement to support that claim. The claim was that she had a well-founded fear of persecution for reasons of her membership of a particular social group or by reasons of her political opinion were she to return to Thailand, so as to fall within the definition of refugee under the Refugees Convention. 6 The applicant's claims arose from her political involvement in Thailand. She was a member of the New Aspiration Party and worked full-time for it for a period of time. Some material records that she was a member of that party between 1988 and 1995 and worked full-time for that party between 1988 and 1992, although her evidence to the Tribunal is recorded as indicating that she joined that party in March 1992 and worked full-time for it for a period of several months only and part-time thereafter. 7 She resigned from the New Aspiration Party because that party would not support her wish to stand for a seat in the Parliament. At the Tribunal, she gave evidence also of learning of some corruption on the part of a female politician. The break with the New Aspiration Party was an acrimonious one. She then joined the Polang Dhama Party in June 1995. It is following those events that the applicant claims to have been subjected to harassment by members of the New Aspiration Party, including the female politician about whom she claims to have had evidence of corruption. 8 At that time she was running a clothing business in Phuket. She claims her business premises were damaged and goods were stolen. She complained of receiving threatening telephone calls and letters, of increasing menace. She claimed to have been accosted by strangers. Those matters were the subject, she said, of complaint to the police but they were not responsive to her concerns. The Tribunal recorded those complaints in the following terms: "The applicant claimed that about two months after she left the NAP she had received a telephone call at her shop telling her to sop working for the PDP party. She claimed that her shop windows were also broken with a stone, at night, about 6 months later. She said that some men had driven onto the footpath at her shop, on motorbikes, and acted in a threatening way. She did not know them, and she did not confront them. She indicated that she had tried to report these matters to the police, but they refused to accept her report, because they said they knew this other woman, who was a powerful politician, and they did not want to be involved. The applicant said that she was so distressed that she had to close the shop in Phuket, which she did on 2 June 1996. The applicant said that she continued to get a lot of telephone calls at home in N telling her to stop participating in the PDP. She said that she was also being followed by people when she went out. She said the police would not take a complaint from her there also, because they did not want to get involved with this politician." Evidence was also given that since her departure from Thailand in October 1996, some unknown person or persons on two occasions had been to her mother's house looking for the applicant and had threatened that she would never be found. The Tribunal's Findings and Reasons 9 The Tribunal, having recorded her complaints and her evidence, considered information concerning the state of affairs in Thailand. It then turned to its findings in the light of her complaints and her evidence and the evidence generally. It accepted her evidence as to her political activities. However, it did not accept that the applicant was harassed in the way she claimed by the New Aspiration Party or any of its members. 10 It regarded as "implausible" the claim that she discovered evidence showing party funds were being applied to private use in the circumstance she described, namely material in an unlocked drawer in a general office, and that she was identified by the politician allegedly concerned without the applicant having confronted that politician or having reported the matter. The applicant had said that she had told one other person about learning of that information informally and that that person must have told the politician concerned. The Tribunal also found that this was implausible, as the applicant knew that person to be a long-standing friend of the politician about whom allegedly she had evidence of corruption. In addition, the Tribunal took the view that, as the applicant had not taken copies of any documents and was known to be disaffected with the New Aspiration Party, the politician concerned would not have taken action against the applicant to the extent claimed. In forming that view, the Tribunal took into account the evidence as to the extent of reported corruption of politicians in Thailand, which is not apparently vigorously prosecuted by the authorities. 11 The Tribunal said that its concern about the applicant's story was compounded by the fact that, in the fifteen months or so between her resignation from the New Aspiration Party and her leaving Thailand, she had not been harmed. She continued to live openly at the same address she had lived in for a number of years, and to operate the shop until June 1996. 12 Finally, the tribunal noted that the applicant had no particular knowledge of who had ridden motorbikes onto the footpath outside her shop apparently in a threatening manner, or who had thrown stones to break the shop windows. It is said that "there is no evidence that they were connected with" the politician about whom the applicant claimed to have evidence of corruption or the New Aspiration Party. 13 The Tribunal concluded that it did not accept that the applicant had been harassed as she claimed either by the politician she alleged was guilty of corruption, or by members of the New Aspiration Party. The Ground of Review 14 The applicant relied upon ss 476(1)(g) and (4)(b) of the Act to make out the ground of review. That is, she sought to establish that there was no evidence or other material to justify the making of the decision. Section 476(4)(b) provides that that ground is not to be taken to be made out unless the Tribunal based the decision on the existence of a particular fact and that fact did not exist. 15 Those two provisions have analogues in ss 5(1)(h) and 5(3)(b) of the Administrative Decisions (Judicial Review) Act 1976 (Cth). I accept therefore that it is appropriate to be guided by the observations of Black CJ (with whom Spender and Gummow JJ agreed) in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 in particular at 220-221 in the following terms: "The fact in question was clearly a "particular fact" and, in my view, the decision was "based" upon it. If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact. In Bond's case (supra) Mason CJ said (at 357) that s 5(3)(b) was directed to "proof of the non-existence of a fact critical to the making of the decision" [my emphasis]. See also Luu v Renevier (1989) 91 ALR 39 at 47 where a Full Court of this Court (Davies, Wilcox and Pincuss JJ) used the word "critical" to distinguish unsupported findings of fact that go to the validity of a decision from findings relating only to a matter of peripheral importance that may not affect the validity of a decision. Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion." 16 The particular fact said by the applicant to be critical to the making of the decision, and which fact was said not to exist, was the Tribunal's finding that there are no indications of political killings or politically motivated disappearances in Thailand. The Tribunal said in its reasons: "This belief [that the applicant was not harassed in the way she claimed by the politician or by members of the New Aspiration Party] by the Tribunal is reinforced by the fact that relevant country information, as outlined at pages 7 and 9 of this report, indicates that there are no indications of political killings or politically motivated disappearances." 17 The applicant also referred to certain other passages in the reasons for the decision of the Tribunal but, as her counsel acknowledged in the course of submissions, those other passages do not record findings of fact which, independently, the applicant can show are facts which did not exist. They were said to be findings of fact which flowed from, and depended upon, the one finding of fact which is expressly attached. Accordingly, it is appropriate to focus only on that particular finding for the purposes of considering whether the application should succeed. 18 In my judgment that finding is not "critical" to the decision of the Tribunal in the sense explained by Black CJ in Curragh (above). It is not a link in a chain of reasoning which, if it did not exist, would result in that chain of reasoning being broken. That is because the Tribunal has indicated a number of reasons why it has rejected the applicant's claims of harassment by the politician she alleges to have been guilty of corruption or by members of the New Aspiration Party. I have referred briefly to those reasons. It is at the end of that process of reasoning that the Tribunal has made the observation complained of and quoted above. 19 It introduces the observation with the words, "this belief by the Tribunal is reinforced by the fact …". As the Tribunal has expressed itself, the fact is not one which was necessary to its reaching its conclusion. If the finding were absent from the reasons, there is every indication that the Tribunal would have come to the same conclusion. It has said as much. It is not a factual link in a chain of reasoning. If I may mix metaphors, it is an added piece of twine to an already existing rope, so that the rope is stronger. Its absence would not cause the rope to break. 20 I am also not persuaded that the fact, identified in its context, was found in the clear terms for which the applicant contends or that, in its context, it did not exist. I am prepared to assume, for the purpose of this application, that the passage referred to does constitute a finding by the Tribunal that there are no indications of political killings or politically motivated disappearances in Thailand. The Tribunal's reasons immediately following the finding complained of are as follows: "The Tribunal has noted the applicant's comments that the head of a telephone company and the wife of a Minister were killed in 1996 and 1997 respectively. No independent material was provided to corroborate this statement, or the facts surrounding their deaths. The Tribunal does not accept that the situation is analogous to the applicant's. Even if there were something unusual in these people's deaths, both appeared to be senior people in organisations, whereas, as the applicant herself has indicated, she was an ordinary member only of her organisation, and the information she might have or the extent to which she could impact on the career of a politician would be commensurately more limited." 21 The Tribunal's reasons are not to be read with "an eye keenly attuned to the perception of error". I refer to the observations of members of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 and 291-293. It is apparent that the Tribunal has had regard to the material before it, including the United States Department of State 1998 Country Reports on Human Rights Practices for 1997 – Thailand, March 1998. It has quoted at length from that document in its reasons. Counsel for the applicant referred to a particular passage in that material to show that the fact as found did not exist. That particular passage, in full, is as follows: "There were no reports of political killings. (p 909 … There were no developments in the 1996 killings of environmental protester Thong-in-Kaew-Wattha and of farmer activist Joon Bhoonkhuntod. There were no developments in the unsolved 1995 murder of conservation activist Winai Chantamanao." 22 It was put that because that document refers to information concerning killings in 1996 of an environmental protester and of a former activist and, in 1995, of a conservation activist, the finding of the Tribunal that there are no indications of political killings or politically motivated disappearances in Thailand is a finding of a fact which did not exist. 23 The Tribunal referred explicitly to the pages of that report containing that material. It referred expressly to two instances of killings which the applicant said were relevant. In my view, its reasons indicate that it has had regard to all that material in reaching its conclusion. The apparently absolute proposition that "… there are no indications of political killings of politically motivated disappearances in Thailand …" must be taken in the context of the reference to the material relied upon, and the balance of the paragraph in the Tribunal's reasons, as meaning that there are no indications of political killings or politically motivated disappearances in relation to the sort of circumstances in which the applicant said she found herself, or in relation to persons such as the applicant. The Tribunal's observations were said by the applicant to be based upon the first and third of the sentences from the passage referred to. No other source of those observations was suggested. It is not conceivable that the Tribunal did not have regard to the middle paragraph of that passage. I think its reasons must be read in that light. 24 If the statement is so read, in my judgment it is not shown that that fact did not exist. 25 Indeed, in my view, the applicant has not established the negative of the fact as expressed by the Tribunal in any event. The finding is apparently based upon material available to the Tribunal and immediately proximate to a reference to recorded killings of environmental or conservation activists. In my view, the Tribunal's finding should, at the least, be read as using the expression "political" in a specific sense so as to exclude those sorts of protesters or activists. Consequently, the reference to those three killings does not establish the negative of the fact as noted by the Tribunal. It was only those three killings, as reported in that material, upon which the applicant relied to establish the negative of the fact which the applicant put in issue. 26 For those reasons, in my judgment the applicant has failed to establish error on the part of the Tribunal. The application is dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Date: 30 July 1999 Counsel for the Applicant: Mr M Clisby Solicitors for the Applicant: Mark Clisby Counsel for the Respondent: Ms S Maharaj Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 20 July 1999 Date of Judgment: 21 July 1999