AAR15 v Minister for Immigration

[2015] FCCA 2570

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAR15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2570

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – unreasonableness – whether the Tribunal’s assessment of the country information was unreasonable – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v MZMDS [2010] HCA 16

Applicant: AAR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 65 of 2015

Judgment of: Judge Street

Hearing date: 14 September 2015

Date of Last Submission: 14 September 2015

Delivered at: Sydney

Delivered on: 14 September 2015

REPRESENTATION

Counsel for the Applicant: Mr McIntyre of Senior Counsel

Solicitors for the Applicant: Granich Partners

Solicitors for the Respondents: Mr RJS French
Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 65 of 2015

AAR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 19 of January 2015 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of the Democratic Republic of Congo, and his claims were assessed against that country as the receiving country.  The applicant was born in the province of [X] and claimed he was a member of the [Y] tribe and, relevantly in respect of the ground of the application, that he would be targeted for harm because of that ethnicity. 

3. Mr McIntyre of Senior Counsel on behalf of the applicant pressed ground 1(a) of the application which is as follows:

   1. The Tribunal made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the Applicant does not have a well-founded fear of persecution.

   PARTICULARS

   a. The Tribunal misdirected itself in concluding that the Applicant, of [Y] ethnicity, does not face a real chance of serious harm for reasons of ethnicity if he returns to [AA], when the Tribunal found that trouble and violence erupts in the Democratic Republic of the Congo (''DRC") due to ethnic tensions, but the Tribunal found that over the past few years tensions have decreased and many [Y] have returned to [BB] and [AA], when those conclusions fail to reasonably address or lead to the conclusion that the Applicant could be reasonably expected to seek refuge in [CC], and evidence of a decrease in tension leading to many [Y] returning to [BB] and [AA] does not reasonably lead to a conclusion that the Applicant does not have a well founded fear that there is a real chance of serious harm for reasons of his ethnicity if he returns to the DRC.

4. The applicant abandoned paras. 1(b), (c) and grounds 2 and 3 in the application.  Mr McIntyre focused specifically in developing the argument of unreasonableness upon para.79 of the reasons of the Tribunal, which are as follows:

   79. The Tribunal considers the applicant’s claim that he fears returning to the DRC for reasons of his ethnicity and because of ethnic violence in DRC.  The applicant claims he is of the [Y] tribe but most of the of the people in their area were [X] and the [Y] people were being accused of having contact with rebels.  The applicant claimed that he fears he will be killed because of his ethnicity and the violence that is being inflicted on the population by government soldiers, rebels and through ethnic clashes.  The Tribunal had regard to the country information before it, and the country information submitted by the applicant’s representative.  It acknowledges trouble and violence erupts in DRC due to ethnic tensions, however it does not consider the applicant will be targeted or that he faces a real chance of serious harm should he return there.  Having regard to the country information before the Tribunal, the Tribunal accepts the ICG cited above52 which states that over the past few years, tensions have decreased and many [Y] have returned to [BB] and [AA].  Having regards to all of the evidence, the Tribunal considers that the applicant does not face a real chance of serious harm for reasons of his ethnicity now or in the reasonably foreseeable future if he returns to [AA]. [emphasis added]

   52 See International Crisis Group 2006, [X], the Congo’s Forgotten Crisis, Africa Report No103, 9 January, p.5.

5. The reference to footnote 52 was to an international crisis group 2006 report number 103 at a particular page reference.  In substance, Mr McIntyre put that no reasonable Tribunal could have made the finding accepted by the Tribunal in the italicised sentence when regard is had to the other country information that was before the Tribunal. 

6. Mr McIntyre of counsel identified the earlier reference to the 2006 report in para.49 which he contended was not the most up-to-date information and that in para.52 the Tribunal said as follows:

   52. Little additional information was located regarding the current situation for [Y] living in [X].  In 2011, Minority Rights Group International (MRG) listed the [Y] as a minority group under threat in the DRC, meaning that they are considered to be at future risk of “genocide, mass killing or other systematic violent repression”. The MRG noted that the DRC is one of seven countries that have consistently remained near the top of its watch list.1³

7. Mr McIntyre identified that the 2011 information was consistent with an ongoing state of ethnic violence which was not consistent with the 2006 report.  Attention was also drawn to para.53, albeit under the heading Information on generalised violence in the DRC, where the Tribunal said: 

   53. Violence was particularly prevalent in the eastern regions of the DRC in context of the ongoing conflict between the government and armed groups in these areas.1⁴ …With respect to the rest of the country, reports indicate that violence also occurs outside the key ‘conflict zones’ of the eastern regions.1⁶  It is noted that no sources were found identifying areas where violence does not occur, or is low, in the DRC.

8. The Tribunal under the heading Violence in the eastern regions of the DRC relevantly said:

   54. Sources consulted indicate that violence is particularly high in the eastern provinces of the country, where armed conflict between government security forces and local militia groups (also called Mai Mai)¹⁸ is ongoing.¹⁹

9. The two footnotes, 18 and 19, were referring to 2014 reports.  The Tribunal relevantly said:

   56. The abovementioned 2014 operational profile by the UNHCR similarly states that ‘due mainly to the ongoing instability in the eastern parts of the country, about 450000 refugees from the DRC remain in neighbouring countries, particularly Burundi, Rwanda and the United Republic of Tanzania and Uganda. 

   57. With respect to perpetrators of violence in the eastern regions, the UK FCO reports:

   Security Sector Reform (SSR) in the DRC is essential for conflict prevention as armed forces, which have the primary role in providing security, are estimated to be responsible for half the human rights abuses and violations in the east. 

   58. Nevertheless, reports indicate that violence also occurs in other areas of the country.  The above mentioned September 2014 UN Human Rights Council report states that ‘defence and security forces were responsible for serious human rights violations in various parts of the country, including in non-conflict areas’ outside of the eastern provinces. According to the report, ‘the high number of cases of torture and arbitrary and/or unlawful arrests and detention remains of concern throughout the country, including in the western provinces. 

10. Albeit in the context of information on relocation within the DRC as a heading, the Tribunal also said:

    60. …That said, MRG has reported that most [Y] live in the [Y] region, with a few remaining in [X].³⁶ No further information was located to suggest that [Y] relocating from [X] would experience particular discrimination in the [Y] provinces.

11. The footnote there referred to being one said to be an updated source accessed on 2 August 2011, published sometime after 2004. 

12. It was after the reference to that country information that the Tribunal turned to the assessment of the applicant’s claims and relevantly found:

    67. Having regard to all the evidence before it, the Tribunal finds the applicant is a national of the DRC. The Tribunal accepts the applicant's claim that he is of the [Y] ethnic group. It accepts the applicant's evidence that he obtained a Zambian passport by false pretences and accepts that he is in fact not a national of Zambia. Having regard to the evidence before it, the Tribunal finds the applicant does not have a present right to enter or reside in another country apart from the DRC.

    …

    69. Having regard to the above, the Tribunal finds that the country of reference for the purposes of refugee assessments and complementary protection assessment is the DRC. The Tribunal also finds the applicant is not excluded from Australia's protection obligation by the operation of s.36(3) of the Act.

13. The Tribunal turned to the issue of credibility in certain matters that the applicant had misrepresented, including the applicant’s explanation for why he made the false statements in his application before the Department.  It is in that context that the Tribunal found:

    74. The Tribunal finds that although it accepts some aspects of the applicant's subsequent protection claims as made in his revised statutory declaration, the Tribunal nonetheless finds the applicant is an unreliable witness who has continued to misrepresent on the question of his present family situation in the DRC as is discussed in more detail in subsequent paragraphs.

14. The Tribunal then turned to the assessment of the applicant’s refugee protection claims, and, in addition to the finding referred to in para.79, relevantly said:

    80. …Based on this, and having regard to the Tribunal's finding that the applicant is not a reliable witness, it does not accept his claim that DRC soldiers entered the [DD] Refugee Camp or that the applicant or his brothers were beaten by plain clothed DRC soldiers at [DD] Refugee Camp as claimed.

    …

    82. …However, having regard to all the evidence and in particular that the applicant does not have an antigovernment political profile, the Tribunal does not accept that he would be targeted for harm for reasons of his actual political opinion. Nor is the Tribunal satisfied that the applicant would be targeted for harm for reasons of his brother's letter written in opposition to the government many years ago, or that he would be imputed with an anti-government political opinion for this reason. The Tribunal accepts that ethnic groups in DRC may in broad terms be divided along political lines, however, it does not consider that the chance of the applicant being imputed with an anti-government political opinion for reasons of his ethnicity, and then facing a real chance of harm for such an imputed opinion is anything more than remote.

    83. …Based on the evidence before it, the Tribunal is not satisfied that the applicant will be of any interest to these organisations, or to any others, or that he will be targeted for harm by them now or in the reasonably foreseeable future if he .returns to DRC.

    84. …Having regard to all of the evidence, and to the unfavourable credibi1ity assessment of the applicant made by the Tribunal, it does not accept the applicant was threatened or harmed as claimed, and looking to the reasonably foreseeable future, it does not find the applicant faces a real chance of serious harm for reasons of his brother [EE]’s article or for any political opinion which his brother may have expressed at that time.

    85. …The Tribunal considered the country information on this question, including country information which indicates that tensions have decreased, and rejects the claim that the applicant faces a real chance of serious harm in respect of the applicant's ethnicity.

    86. …However, having regard to all of the country information before the Tribunal, including the information by the UK Border Agency after its fact-finding mission in 2012 ⁵³ , it rejects the applicant’s claim that he will be subjected to persecution for reasons of being a member of the particular social group known as returned asylum seekers.

    87. …However, having regard to the applicant's unreliable credibility as evidenced by his willingness to lie to delegate in his first statutory declaration about the existence of siblings in Australia, and about the claimed circumstances of other family members, the Tribunal does not accept his explanation of the entries in his Facebook account and considers that based on the entries in has Facebook, that the applicant in fact has family and friends in the DRC and that he maintains contact with them.

    88. …The Tribunal rejects the applicant's claim that he would face a real chance of serious harm by John Numbi. It finds the applicant's evidence in this regard was vague and general and notes that John Numbi's name and position is freely available in public information sources. Having regard to this, and to the applicant's lack of credibility and his capacity to misrepresent his circumstances, the Tribunal rejects this aspect of his claim.

    89. …Based on the evidence of the applicant's circumstances, the Tribunal considers the applicant would not be of any adverse interest to the Mai Mai and considers his chance of serious harm at the hands to be remote.

    90. Having considered the applicant's claims individually, the Tribunal finds it is not satisfied that on the evidence before it the applicant faces a real chance of harm which can be described as 'serious harm' of the kind contemplated in s.91 R(2) of the Act should he returns to DRC now or in the reasonably foreseeable future. The Tribunal has also considered the claims and evidence cumulatively and finds it remains satisfied that the chance of serious harm motivated by one or more of the Convention grounds should the applicant return to DRC now, or in the reasonably foreseeable future, is not a real chance but rather one that is remote.

    91. For these reasons, the Tribunal finds that the applicant does not have a well-founded fear of persecution should he return to the DRC.

15. The Tribunal turned to the issue of complementary protection and relevantly held:

    95. …For these reasons, the Tribunal finds that the operation of s.36(2B) in this case provides that there is taken not to be a real risk that the applicant will suffer significant harm in the DRC as the Tribunal considers that the risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal therefore finds the applicant does not satisfy the requirements prescribed in s.36(2)(aa) of the Act.

16. Mr McIntyre of counsel took the Court to maps identifying the relevant province of the Democratic Republic of Congo, and, in particular, the south-east region which identifies where the applicant was born.  Mr McIntyre put that, relying on the 2006 report, in the circumstances, identifying ongoing violence in the relevant province does not reasonably or logically provide a basis for a conclusion as to the risk of persecution of the applicant at the time of the Tribunal’s decision in 2015. 

17. Specifically, Mr McIntyre identified the material identifying genocide, mass killings or other systemic violence: a violent repression in 2011;  the alleged situation worsening in early 2013; a 2014 report identifying serious human right violations, particularly in the eastern provinces affected by the conflict, including the relevant province; and a 2014 report identifying  the situation remaining volatile. Mr McIntyre submitted that these reports meant that no reasonable Tribunal could find as the Tribunal found in the present case, set out in para.79 in the sentence the subject of emphasis, and this meant that no reasonable Tribunal could conclude that the applicant did not face a real chance of serious harm for reasons of his ethnicity if he returned to the city where he was born in, the particular province. 

18. There was no issue in relation to principles to be applied, albeit that, as identified in the Minister for Immigration and Citizenship v Li [2013] HCA 18, albeit that the Court was also taken to the discussion of irrationality in Minister for Immigration and Citizenship v MZMDS [2010] HCA 16, relevantly at [39] to [40], [114] to [115], and [122] to [130].

19. The Tribunal’s reasons are to be read without a keen eye for error.  I accept the first respondent’s submission that the reference in para.79 to, “the country information before the Tribunal” is a reference to the whole of the information to which the Tribunal has referred in its reasons and clearly to which the Tribunal has had regard. That information includes each of the reports referred to by Senior Counsel for the applicant.

20. On a fair reading of the Tribunal’s reasons, the sentence preceding the emphasised sentence in para.79 is clearly an adverse finding taking into account the whole of the country information to which the Tribunal has had regard.  It is a matter for the Tribunal to determine which country information the Tribunal accepts.  It is clear in this case that the Tribunal did have regard to the most up-to-date country information available but accepted in its findings the position identified in the 2006 report in its findings in para.79.

21. Whilst I accept Mr McIntyre’s proposition that there is other information that might have been open to the Tribunal to come to a different view, I do not accept that no reasonable Tribunal could accept the 2006 report in relation to the findings made in para.79.  That adverse finding is not one that could be said to lack an evident and intelligible justification within the principles identified in The Minister for Immigration and Citizenship v Li.

22. It is not open to this Court to make fresh findings of fact, and this Court’s jurisdiction is limited to determine whether or not there has been any jurisdictional error by the Tribunal.  For the reasons given, I am not satisfied that there is any jurisdictional error of the kind identified in ground 1(a).  I should note that I also regard the grounds that were abandoned as having been properly abandoned by Senior Counsel given the adverse findings of the Tribunal.  The application is dismissed. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 23 September 2015