AGS15 v Minister for Immigration

[2015] FCCA 2114

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGS15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2114

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – no jurisdictional error found – application dismissed – costs.

Legislation: 

Migration Act 1958 (Cth)

Applicant: AGS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 257 of 2015

Judgment of: Judge Vasta

Hearing date: 28 July 2015

Date of Last Submission: 28 July 2015

Delivered at: Brisbane

Delivered on: 28 July 2015

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. All outstanding applications be dismissed.

2. The Applicant pay the Respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

3. The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 257 of 2015

AGS15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By application filed on 18 May 2015, the applicant AGS15 seeks judicial review of a decision of the then Refugee Review Tribunal that was made on 5 March 2015.  That Tribunal affirmed a decision of the delegate of the Minister for Immigration and Border Protection on 21 February 2014 to refuse to grant a protection (class XA) visa to the Applicant. 

2. A short chronology is that the Applicant is a citizen of Ethiopia.  He had been working in the equivalent of a planning and environment public sector job in Ethiopia.

3. He has said that he has, in that position, had to look at a number of government and private sector proposals for mining and development.  He says that there have been hundreds of times where he has said that the proposal ought not be accepted, but he has on a great number of occasions been overruled by government authorities.  He says for this reason that he is of the view that he is seen by the ruling party as being anti-government.  He says that in June of 2013, he had attended a rally that was an anti-government protest.

4. He said that after the second of those rallies (the first one being on 2 June 2013, the second one being 7 June 2013), he was arrested and imprisoned for 21 days.  He was then released and there was no charge but he was given a warning not to participate in such actions again.  I pause to note that the Tribunal found no country information that verified this.  There were widespread reports of the two demonstrations as the fact that such demonstrations occurred, were seen by the western world as being an illustration of a loosening of the restrictions that the Ethiopian government had, in the past, had.

5. The Applicant says that he had been the acting director of the particular unit for some 18 months or so.  He says that the reason he was not made the actual director was that he had refused to join the Ethiopian People’s Revolutionary Democratic Front (EPRDF).  He said that if he had joined that party, he would have been made the director of that unit, but he had refused to do so.  Notwithstanding that, he was allowed to stay in the position because of his educational qualifications, which is a Master of Science.

6. The Tribunal had before it a copy of what was purported to be the qualifications of the Applicant, and I accept that he does have those qualifications.  The Tribunal also had regard to some country information which they quoted at paragraph 39 of their judgment, which read:

   “…The civil service in its entirety can be regarded as highly politicized.  Administrative personnel are recruited not on the basis of professional standards and personal merit but mainly through patrimonial networks.  Membership in the ruling party is a practical necessity for appointment to any public sector job.  Even higher education graduates need to be a member of one of the Ethiopian People’s Revolutionary Democratic Front (EPRDF) parties, based on their ethnicity.  As EPRDF numbers its members in the millions, attaining employment is strongly linked with membership.  At the lower administrative level (woreda and Keeble), ownership of micro- and small businesses, as well as access to financial grants and loans, requires demonstration of loyalty to EPRDF...”

7. The Tribunal found that it was very unlikely that the Applicant could voice any anti-government stance and have achieved this job, let alone stay within it.  Considering that the Applicant also said that he has rejected hundreds of proposals, even if those proposals are reversed higher up along the line, it is almost impossible to see how this government would have allowed him to remain in that position.

8. What was also of interest to the Tribunal was that notwithstanding what the Applicant said his situation was, he was able to procure an AusAID sponsored student visa.  He had travelled in his capacity as acting director to a number of countries, but more importantly after his supposed release in June, he travelled to Ghana in October 2013 and then on 11 November 2013 with the AusAID sponsored student visa he was able to travel to Australia.  On 16 December 2013 he applied to the Department of Immigration for the visa, the subject of this application.

9. He presented two letters supposedly from a police department saying that, notwithstanding the fact that he had been released, he was still wanted for questioning regarding his involvement in these protests.  I am not going to reiterate what the Tribunal said, but the Tribunal, for various reasons, gave no credibility at all to the genuineness of those two letters. 

10. The Tribunal ended up finding that the Applicant had very little credibility. Notwithstanding that there is evidence that all may not be well in Ethiopia, the Tribunal could not find that the Applicant brought himself within the protection obligations that Australia has under the convention or under the complementary provisions. Therefore, the Tribunal affirmed the decision of the Minister.

11. The application to this Court has two grounds set out below:

    “1. The decision to of the second respondent was affected by jurisdictional error because:

    a. The second respondent asked itself the wrong question by failing to consider whether I, as an individual, faced a real chance of harm on return to Ethiopia.

    Particulars

    i. The second respondent made a finding that, as a low level political activist, I may face a remote, but not a real, chance of harm from the Ethiopian authorities because of my political opinion.

    ii. In doing so, the second respondent inferentially divided political activists in Ethiopia into high and low profile political activists and then assumed the generalized position that only high profile activists attract persecution in Ethiopia.  The generalization ignored the subjective question of whether I as an individual, had a well founded fear of being persecuted as a result of my anti-government political opinion.

    b. The second respondent asked itself the wrong question by failing to consider whether I am being forced to live as a low profile political activist in Ethiopia is, of itself, persecution of the government giving rise to a well-founded fear of persecution now or in the reasonably foreseeable future.

    Particulars

    i. The second respondent accepted that I have an anti-government political opinion and that I am a low-level political opponent of the government.

    ii. The second respondent accepted that the Ethiopian authorities have targeted in the past and continue to target, opposition members for harm.

    iii. The second respondent made a finding that I would not be politically active in Ethiopia in the future, beyond having a low-level anti-government opinion.

    iv. The second respondent failed to ask itself weather it would be forced not to be politically active and to live as a low profile political activist in order to avoid a threat of harm, and if so, weather that is, of itself, persecutory conduct on the part of the government, giving rise to a well-founded fear of persecution now or in the reasonably foreseeable future.”

12. In effect, that ground is saying that the Tribunal ignored the subjective question of whether the Applicant had a well-founded fear of being persecuted as a result of his anti-government political opinion.  In reading the decision and, even in the parts that I have highlighted earlier in these reasons, it cannot be said that the Tribunal ignored this subjective question.

13. The Tribunal explored it and explored all of the evidence that it had, to ask itself whether or not there was a well-founded fear of being persecuted as a result of the Applicant’s anti-government political opinion.  The fact is, whatever the Applicant says now about his political opinion, the Tribunal found that he had not voiced such opinion whilst he was Ethiopia. In the Tribunal’s opinion if the Applicant had voiced such an opinion, there is no possibility that the Applicant could have travelled to Ghana in October 2013, let alone Australia in November 2013.  In my view, Ground 1 has not been made out. 

14. Ground 2 is that the Tribunal failed to consider whether the applicant faced harm upon return to Ethiopia as a result of being forced to live as a low-profile political activist.  It is my view on reading the Tribunal’s decision they have not said that he is a low-level political activist.  The fact is the Tribunal has found that he could not have gotten to the position he was without being a member of the EPRDF or showing loyalty to it and that he could not have stayed in his position if he had not had those particular views, nor could he have left the country as he has, if he had in any way voiced those opinions.

15. So it is clear that the Tribunal did not accept that he did have an anti-government political opinion, or that he was a low-level political opponent of the government.  Therefore, I find that Ground 2 has not been made out.

16. The problem with both of these grounds is that, realistically, the Applicant is seeking a merits based review.  His submissions to me in this Court were really matters that went to the merits of the application.  He reiterated that if he had been a member of the party he would have been made director instead of acting director for 18 months and he only got there because of his qualifications and that his travel was simply because of his qualifications.

17. He said that other directors have had a lot more opportunities to travel and to do things than he has had.  He reiterated that his opposition of the government is genuine and that if he does go back to Ethiopia he would suffer the consequences.  Those matters are merit based grounds. 

18. For this application to succeed, I have to be satisfied that the Refugee Review Tribunal has made a jurisdictional error.  I cannot simply substitute my view of the evidence for that which the Tribunal has come to.  In my view, the Tribunal thoroughly discharged its obligations.  It set out what its obligations were at the start of the reasons and followed through with them.

19. Simply because the eventual finding is not to the Applicant’s liking does not mean that there has been an error.  Just because they did not accept certain evidence and preferred other evidence does not mean that there is an error of law.  Having looked at the matter thoroughly I do not accept that there has been any error in the approach of the Tribunal. 

20. I dismiss the application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:6 August 2015