AZAEB v Minister for Immigration

[2014] FCCA 3169

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAEB v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3169

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth), s.36(2)

Applicant: AZAEB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 255 of 2013

Judgment of: Judge Simpson

Hearing date: 16 April 2014

Date of Last Submission: 16 April 2014

Delivered at: Adelaide

Delivered on: 16 April 2014

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Mr R Prince for the Australian Government Solicitors

ORDERS

1. The name of the First Respondent be changed from Minister for Immigration and Citizenship to Minister for Immigration and Border Protection.

2. The application filed on 22 August 2013 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

3. The Applicant pay the First Respondent’s costs fixed in the amount of SIX THOUSAND, SIX HUNDRED AND FORTY DOLLARS ($6,640.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 255 of 2013

AZAEB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

1. I have before me an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a Delegate, of what is now the Minister for Immigration and Border Protection, not to grant the Applicant a Protection (Class XA) visa.  The Applicant has appeared in person and is unrepresented.  He speaks very good English and has not needed an interpreter.  I gave the Applicant the opportunity of having the matter adjourned so that he could seek legal advice but he felt confident about being able to proceed with the matter without such legal advice.

2. I have been assisted by an Outline of Submissions filed by the First Respondent. 

3. The Applicant is a citizen of Uganda.  He arrived in Australia on 21 October 2012 and lodged a protection visa application the next day. 

4. The Applicant claimed to fear harm from the Ugandan government because of his political opinion.  He claimed to have been active in politics and to have held the positions of Minister in the local government, as a District Councillor and then as a District Chairperson.

5. Throughout his political career, he claimed to have been subjected to threats of violence, especially by one of his political opponents, a man called Nyanzi.  The Applicant ended his political career in 2011 and thereafter conducted volunteer work relevant to Vanuatu.  He briefly returned to Uganda for medical reasons before again returning to Vanuatu.  He claimed that without a political office he will not be assured of protection. 

6. On 14 January 2013, the Delegate refused to grant the visa.  The Applicant applied for review by the Tribunal on 23 January 2013.

7. On 2 May 2013, the Tribunal invited the Applicant to appear before it.  A hearing was conducted on 31 May 2013.  It made a decision on 25 July 2013 affirming the decision on review. 

8. In its reasons, the Tribunal identified the question that it had to answer, as whether the Applicant had a well-founded fear of persecution for reason of his political opinion and his past rivalry with Nyansi, should he return to Uganda in the reasonably foreseeable future.

9. The Tribunal accepted the substance of the Applicant’s claim in relation to Nyansi.  It noted that neither the Applicant nor his family suffered actual harm in the past, amounting to serious harm.  The Tribunal found that the Applicant did not, and does not, have a substantive fear of persecution in Uganda.  The reasons supporting that finding were, firstly, the Applicant’s failure to apply for protection at the first possible opportunity; secondly, his return to Uganda; and, thirdly, his failure to pursue other options for seeking protection in the East African community.

10. The Tribunal did not accept the Applicant’s claim that the Ugandan authorities will detain, torture or imprison him upon return.  In so concluding, the Tribunal had regard to country information, the absence of adverse attention from the authorities after he left political office, and the fact that he was able to depart Uganda without incident in March 2012. 

11. The Tribunal addressed and rejected the assertion that the Applicant will face harm from Nyansi. 

12. In short, the Tribunal said that it was not persuaded that the Applicant was a political threat to Nyansi, or that Nyansi has any ongoing interest in the Applicant.

13. The Tribunal next addressed the Applicant’s ability to maintain a livelihood.  It said that the Applicant was a capable and resourceful person.  His wife was employed in her own business, and even if he was prevented by the authorities from earning a living, his wife’s income could support the family. 

14. It concluded by finding that the Applicant did not satisfy the requirements of s.36(2)(a) of the Migration Act 1958 (Cth), including the alternative criterion in s.36(2)(aa).

15. The Applicant lodged his application in this Court, as mentioned previously, on 22 August 2013.  He sought orders that the decision of the Tribunal be quashed and that a writ of mandamus directed to the Tribunal or Minister be issued requiring them to determine the Applicant’s application according to law. 

16. The Applicant’s grounds are quite extensive.  I have decided that I will address each of the grounds in the order that the Applicant provided them and give my decision in relation to each such ground.

Ground one

1. The first ground was in these terms:

   “The first and second respondents accepted all the evidence I put for persecution, torture, ill treatment, intimidation, harm, physical harassment, violence and unfair treatment towards me by government and opponents but they did not carry them to the final decision on grounds that I was never detained.  Both respondents erred when they unfairly disregarded the evidences they accepted to be true and factual.”

2. In my opinion, the Tribunal did not disregard the evidence that the Applicant refers to.  At paragraph [24] of the Tribunal’s reasons, they said this:

   “The question for the Tribunal is whether the Applicant has a well-founded fear of persecution for reason of his political opinion, including his political career and his past rivalry with Nyansi, should he return to Uganda in the reasonably foreseeable future.  After considering all of the Applicant’s claim and evidence and relevant country information, the tribunal has concerns about both the subjective and objective elements of the well-foundedness of his claimed fears.”

3. The ground that the Applicant relies upon starts with an incorrect statement.  In paragraph [25] and following of the Tribunal’s reasons, the Tribunal made numerous findings in relation to the evidence that the Applicant refers to.  The Tribunal found that the Applicant did not have a subjective well-founded fear of persecution in Uganda and explained the reasons for their conclusion.  The Tribunal had evidence to support this finding.  In those circumstances, I consider ground one to be without merit and should be dismissed.

Ground two

1. Ground two of the application was in these terms:

   “The first and second respondents did not take into account my effort to protect myself from harm and loss of life with the help of bodyguards provided by virtue of the Office of District Chairperson for Mityana in Uganda, support of the electorates (my supporters) and hiding from my opponents.”

2. It seems to me that the same comment as in relation to ground one, can be made in relation to this ground.  The Tribunal did not ignore the evidence.  In this regard, I refer, in particular, to paragraph [24] of the Tribunal’s reasons.

Ground three

1. Ground three is in these terms:

   “The first and second respondents erred when they contradicted each other as they denied me protection. On page 14 of the findings of the delegate say that the harm claimed is significant harm for the purpose of subsection 36(2A) of the Migration Act, whereas the tribunal member on page 9, item 33, says that the tribunal is not satisfied that there are substantial grounds for believing that the Applicant will suffer significant harm. On page 12, the delegate says it is more likely that I would be of almost no interest or relevance to the political process in Uganda, while the tribunal member on page 10 says that I would re-enter politics and run in future elections. I have been in politics since 1988. I have a lot of support from the electorate areas of Mityana district and Busujju constituency in Uganda and that is why I am persecuted.”

2. In my view, this is not a proper ground for review.  It simply compares and contrasts the findings of the Delegate in the Delegate’s reasons and the Tribunal in the Tribunal’s reasons.  It is not a proper ground and therefore, in my view, ground three is without merit and should be dismissed.

Ground four

1. Ground four is in these terms:

   “The first and second respondents made jurisdictional error in assessing of my protection in relation to the complementary protection provisions 36(2)(aa), given that there is real risk for me to suffer significant harm if I am forced back to Uganda.  The finding of the delegate at page 14 show that he was satisfied that the harm I claimed is significant harm and yet the member of the tribunal on page 9 is not satisfied that I will suffer significant harm.”

2. There is no jurisdictional error revealed in this ground.  The Tribunal did not find that the complementary protection criteria were met.  The Tribunal found that the subjective and objective elements necessary for a finding of well-founded fear of persecution were made out.  It follows – and the Tribunal reasoned – that the complementary protection criteria were not met.  This ground is, in my view, without merit and should be dismissed.

Ground five

1. I turn to ground five.  It is in these terms:

   “The First Respondent included material that did not apply to me in his decision (see page 15 – findings).  It is likely that this may also have affected the conduct in which the delegate decided on my application.  I did bring this issue to the attention of the tribunal member during my interviews on 31.5.2013.”

2. This is not a proper ground.  It is referring to the findings of the Delegate and, as I mentioned to the Applicant during submissions, we are not here concerned about the Delegate’s decision but, rather, the decision of the Tribunal.  The other comment I would make about this ground is that the Applicant’s written submissions to the Tribunal on this topic were considered by the Tribunal and dealt with in their reasons.  Ground five is therefore without merit and should be dismissed.

Ground six

1. Finally, I turn to ground six, which is in these terms:

   “The second respondent erred to assume that my wife can support me on the income from her small business.  My wife has a very small business where she earns an average of $4 a day and I cannot subsist on that income nor can my family.”

2. This ground does not raise any instance of a jurisdictional error.  The ground is without merit and this ground should be dismissed. 

3. For all of these reasons, in my view, the application must be dismissed and I order accordingly.

4. I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 12 May 2015