Retribution Can Be Political for the Purpose of Determining the Status of Refugee – Federal Court

The RRT wrongly found by implication that revenge and political motive were incompatible. SZJRI v MIAC [2008] FCA 1090 (24.7.08) concerned a senior Nepalese policeman who became subject to threats of retribution because he was involved in police action leading to the injuring and imprisonment of Maoists opposing the government.

This case represents a useful application of the High Court decision of MIMA v Singh [2002] 209 CLR 533,  the principle of which is encapsulated in the dictum of McHugh J that “A decision-maker makes an error of law by assuming that the fact that an act was one of “revenge or retribution” necessarily makes it a “non-political”. There is no such dichotomy.”

In SZJRI  Gilmour J found the threats against the appellant could not be characterised as personal:

22. The evidence before it, without more, did not support a conclusion that the Maoists had a ‘personal grudge’ against the appellant. True it was that the Maoists threatened revenge against the appellant as an individual but it was in the context of the longstanding armed struggle between the Maoist insurgents and the State of Nepal. The police force was an agency of the State. The deaths, injuries and subsequent imprisonment of insurgents were the result of a fire fight initiated by a group of Maoists against a group of police officers commanded by the appellant. None of the insurgents was known to the appellant and there is no evidence, apart from his position as the officer in command at the time of the fire fight, that he was known to them. The death threats made against him arose out of that armed clash and its aftermath. Indeed the threats were accompanied by demands that he arrange for the release of the four imprisoned insurgents. Counsel for the first respondent conceded that there was no evidence to warrant a conclusion that the appellant was threatened for reasons of personal animus or private retribution.

23. On its face it is difficult, with respect, to see how these threats could, in the circumstances, be characterised as the result of a personal grudge held against the appellant. Apart from other considerations the threats carried with them a demand for the release of the imprisoned Maoists. Counsel for the first respondent, did not identify any basis in the evidence for such a finding. No rationale exists beyond the fact that the appellant acknowledged in evidence that his fear was related to possible revenge by Maoists.

24. Two things immediately may be said about that. First, the appellant’s view of the motives of the Maoists who made the threats could hardly be determinative. Ultimately, it was no more than a matter of inference on his part. The actual motive may not have been revenge. In any event as is obvious and as was conceded by counsel for the first respondent revenge could be politically motivated. Second the Tribunal, in its reasons, in fact noted that the appellant feared revenge from the Maoists “… because of his involvement with (the Maoists) as a police officer in 1998” and “for reasons of his having been responsible for the arrest (and possible mistreatment) of a number of their colleagues after the abovementioned 1998 incident”. The Tribunal evidently accepted this explanation. Accordingly the Tribunal itself linked the threat back to what had occurred in 1998. The Tribunal, in its reasons was prepared to accept that the appellant may be targeted in Sindhupalchok by Maoists because he had been responsible for the arrest and possible mistreatment of a number of their colleagues after the abovementioned 1998 incident. However it seems, in the absence of any other relevant evidence that the Tribunal concluded, on the basis of the appellant’s evidence, that the motive of revenge against him as an individual must necessarily be characterised as ‘personal’. ‘Revenge’, in this case, apparently, inevitably equated to a ‘personal grudge’.

25. It was unreasonable on the evidence before it for the Tribunal to conclude that the motive of revenge, if indeed that is what it was, was equivalent to a personal grudge.