BEY15 v Minister for Immigration

[2015] FCCA 2996

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEY15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2996

Catchwords:
MIGRATION – Application for class XA visa – whether Tribunal gave proper consideration to applicant’s claim for complementary protection – where no proper consideration given – jurisdictional error not established.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2)(a)

Applicant: BEY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 586 of 2015

Judgment of: Judge Jarrett

Hearing date: 3 November 2015

Date of Last Submission: 3 November 2015

Delivered at: Brisbane

Delivered on: 6 November 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent: Ms Tattersall

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 28 September, 2015 be dismissed.

2. The applicant pay the first 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 the “Administrative Appeals Tribunal”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 586 of 2015

BEY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of a refugee review tribunal given on 3 June, 2015 which affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Protection (class XA) visa.

2. The first respondent opposes the application.  The second respondent enters a submitting appearance.

3. I have the benefit of both written and oral submissions made on behalf of both parties.  The applicant presented his own case.

Background

1. The applicant is a citizen of Zimbabwe.  He arrived in Australia in February, 2004 as the holder of a student visa.  After holding a succession of student visas, he lodged an application for a protection visa on 4 September, 2012.

2. In his protection visa application the applicant claimed to fear returning to Zimbabwe on the basis of his actual and/or imputed political opinion.  In support of that general claim, the applicant asserted that his father was a police officer during the Smith Rhodesian era and his father’s retirement from the police force a few years after independence would be regarded as “a betrayal of trust and loyalty to the Mugabe regime”.  His father now resides in Botswana. 

3. The applicant claimed that his brother was a strong supporter of the Movement for Democratic Change, an opposition political party in Zimbabwe.

4. Further, in 2008 the applicant returned to Zimbabwe in order to renew his Zimbabwean passport.  He was issued with an emergency travel document from the Zimbabwean embassy in Canberra to facilitate his return to Zimbabwe.  Upon attending at the Registrar General of Passports in Zimbabwe the applicant was told to go the Central Intelligence Organisation headquarters to obtain the passport and while there, he was alleged to be a “government traitor” and assaulted.  After his passport was processed the applicant claims that he was taken to a police station, asked about his father and again assaulted.  The applicant says that he was released after paying a bribe to the government officials reportedly from an organisation described in the material as the CIO.

5. The applicant claimed that in 2009 his sister also returned to Zimbabwe to renew her passport and was also assaulted.  He could give no particulars of the assault or any injuries sustained by her.

6. On 11 July, 2013 a delegate of the first respondent refused to grant to the applicant a protection visa. 

7. The applicant applied for review of the delegate’s decision by a refugee review tribunal.  The tribunal was not satisfied that it could make a decision favourable to the applicant on the material presented in his application for review and so invited the applicant to attend a hearing before the tribunal so that he could give evidence and present arguments.

8. The applicant’s older brother had also applied for the grant of a protection visa.  That application had also been refused and an application for review lodged in respect of that refusal.  The tribunal conducted the hearing of the applicant’s review and his brother’s review together.  The tribunal’s reasons for decision record:

   7.  The applicant appeared before the tribunal on 27 May 2014 to give evidence and present arguments. As noted above, the tribunal conducted the hearing as a joint hearing with the applicant’s brother. The tribunal ensured both applicants were able to give their own  evidence and present their own arguments. At one point during the hearing when the tribunal discussed some information with the applicant using the procedure in s.424AA, the tribunal asked the brother to leave the hearing room. As discussed in more detail below, the information discussed has not been a reason or part of the reason for the tribunal’s decision

9. A hearing before a tribunal took place on 27 May, 2014.  The applicant appeared before the tribunal and gave evidence.  He presented arguments in support of his application and he was represented by a migration agent.  His migration agent made written submissions, both before and after the tribunal’s hearing.

The tribunal’s decision

1. The tribunal made its decision on 3 June, 2015.  It delivered written reasons for its decision.  In those reasons, the tribunal summarised the applicant’s claims as follows:

   1.  The applicant is 28 year old man from Zimbabwe. According to the applicant, he was assaulted by the police in Zimbabwe when he returned to that country in July 2008 to obtain a new passport. When his sister returned to Zimbabwe for the same reason in 2009, she too was assaulted. The applicant believes he was targeted for harm because: their father resigned from the Zimbabwean police force and therefore is considered a traitor; as a schoolboy his brother was a Movement for Democratic Change (“MDC”) youth wing supporter and because he studied in Australia. He fears he will be harmed by the Zimbabwean authorities or the ruling Zimbabwe African National Union-Patriotic Front (“Zanu-PF”) party if he returns to Zimbabwe for those reasons, as well as because he would return as a failed asylum seeker, his support for the MDC and his career goals. He fears too he may be harmed by other supporters of the MDC opposed to his views regarding leadership change.

2. The tribunal correctly identified that the matters for its determination were:

   3.  …

   a.  Does the applicant have a well-founded fear of persecution in the reasonably foreseeable future if he returns to Zimbabwe.

   b.  Are there substantial grounds for believing there is a real risk the applicant will suffer significant harm if the applicant is removed to Zimbabwe

3. The tribunal resolved each of those matters against the applicant.

4. The tribunal did not accept that the applicant had suffered serious harm in the past in Zimbabwe.  Whilst the tribunal accepted that:

   a)the applicant was detained, assaulted and incurred injuries arising from an assault by Zimbabwean authorities when he went to get his passport as he claimed;

   b)during the assault the officers made reference to his father being a police officer; and

   c)during the assault the officers made reference to the applicant and his siblings being involved with the MDC youth wing

   the tribunal found that the essential and significant reason the officers assaulted him was financial gain rather than his political opinion.  After recounting the applicant’s evidence that he had paid bribes to several people, including a person at the passports office, border guards at the border into Zimbabwe from Botswana, police at various police checkpoints and a dentist who treated the applicant for his injuries, the tribunal said:

   25.    Although the applicant claims the CIO officers assaulted him due to his political opinion, the applicant’s evidence is once he paid a bribe to the CIO officers, they ceased assaulting him and he was released. The tribunal is mindful there could be multiple reasons the CIO officer’s assaulted the applicant and has considered the possible reasons for the assault include his political opinion. But the assault ceasing once the applicant paid the bribe leads the tribunal to conclude the CIO officers were motivated to beat the applicant with the intention of extracting a bribe from him. The applicant provided evidence too of the prevalence of bribery by government officers in Zimbabwe. For these reasons, the tribunal considers the essential and significant reason the CIO officers assaulted the applicant was the financial gain of his paying a bribe to them and not his political opinion. Seeking a bribe is not a Convention reason. The tribunal therefore finds the applicant did not suffer serious harm when assaulted by police in 2008. The tribunal discusses this aspect of the applicant’s claims further below in relation to Complementary Protection criteria.

5. The applicant sought to assist his claims by evidence in the form of a letter from his father in Botswana.  In the letter, the applicant’s father claimed that the applicant had a life of “living hell” after his father left Zimbabwe, that the applicant had fled from his village to farms, and that the applicant had go to school in secret and was subsequently sent away to live in peace once he was able to study at university.  However, the tribunal compared these claims to other evidence before it and determined that the applicant’s father’s claims in the letter were exaggerated.

6. The tribunal was not satisfied that the applicant had suffered serious harm in the past for a convention reason.  Whilst he had suffered harm as a result of the assault at the time of the renewal of his passport, that harm had not come about because of a convention reason, but rather because of the relevant CIO officers wishing to extract money from the applicant.

7. The tribunal turned its mind to whether there was a real risk that the applicant would suffer serious harm in the future.  The applicant pointed to seven matters from which he claimed there arose a real risk of serious harm in the future.

8. The first concerned his relationship with his father.  As to that, the tribunal:

   a)was not satisfied the applicant’s father would be considered a traitor due to resigning from the Zimbabwe police force;

   b)found that the applicant’s father exaggerated a particular incident when he described it as an attempt on his life;

   c)was not satisfied that the applicant faced any chance of serious harm as a result of his father’s former employment as a police officer; or

   d)because the applicant is a member of his father’s family.

9. The tribunal summarised its reasoning about this aspect of the application as follows:

   34.    Considering all of the evidence before it, the tribunal is not satisfied the applicant’s father would be at risk of harm because he is considered a traitor due to resigning from the Zimbabwe police force. The father continued to serve under the Mr Mugabe regime between 1980 and 1986 and then resided in Zimbabwe for several years between his resigning from the police force and moving to Botswana in the early 1990s. While the evidence is the father did not return to Zimbabwe for 10 years, the tribunal is not satisfied on the evidence before it that is because the father considered himself at risk of harm from the Zimbabwean authorities, this is because he then travelled to Zimbabwe monthly thereafter. In relation to the letter the father provided on behalf of the applicant to the delegate, for the reasons discussed with the applicant and his brother at the hearing set out above, the tribunal considers the father has exaggerated the situation. This leads the tribunal too to conclude the father has exaggerated the training incident as an attempt on his life. The tribunal places weight on the letter from the Zimbabwe Reserve Bank. It considers the father seeking foreign exchange from the Zimbabwe Reserve Bank, revealing the address of the aunt and revealing the foreign exchange was for the purpose of the tuition of the applicant and the brother too is not consistent with the father having a real fear of being targeted for harm by the Zimbabwe authorities because he resigned as a policeman or for any other reason. The tribunal notes too that more than 28 years have passed since the father resigned from the police.

10. The second concerned the applicant’s relationship with his brother.  The tribunal accepted that the applicant’s brother had been an active supporter of the MDC youth wing as a school boy and had undertaken activities associated with public support for the MDC.  However, the tribunal found that the applicant’s brother had only a low level involvement with the MDC youth wing, more than a decade ago and it was not satisfied that the applicant faced serious harm as a result of his brother or because he is a member of his brother’s family.

11. The third matter identified by the applicant was his relationship with his sister.  The tribunal considered that the evidence in relation to the applicant’s sister was lacking in detail.  It considered that the claim his sister was harmed by Zimbabwean authorities was speculative and accordingly, there was not a real chance of serious harm arising from what may have happened to his sister in 2009.

12. The fourth matter to which the applicant pointed in support of his claim of a real risk of harm in the future was the fact of his study in Australia and that he would be viewed as a failed asylum seeker should he return to Zimbabwe.  As to that matter, the tribunal noted that these matters were raised by the applicant’s migration agent and not spontaneously by the applicant (or his brother), although ultimately it gave that matter no weight.  Rather, the tribunal focussed upon the country information available to it.  That information indicated that Zimbabwean authorities were not targeting returnees who had lived or studied abroad.  It did not appear to the tribunal that the applicant had the same profile as those who had reportedly suffered harm when they returned to Zimbabwe from abroad.  Accordingly, the tribunal said:

    47.    The tribunal has regard to the country information before it which indicates the Zimbabwean authorities are not targeting such groups or individuals. Therefore, the tribunal is not satisfied the applicant faces a real chance of serious harm now or in the reasonably foreseeable future due to any actual or imputed political opinion opposed to the Zimbabwean authorities and/or Zanu-PF or associated militias because he studied in Australia nor if he returns to Zimbabwe as a failed asylum seeker.

13. The fifth matter to which the applicant pointed in support of his claim of a real risk of harm in the future was his support of the MDC.  The tribunal analysed, in detail, the information that it had before it about the political climate in Zimbabwe, the prevalence of election related violence and the nature and extent of the applicant’s political profile.  It considered the submissions made on his behalf by the applicant’s migration agent.  The tribunal made the following findings:

    54.    Having considered the country information the tribunal finds that the political climate has changed in Zimbabwe since the July 2013 elections and the cyclical violence associated with the election has passed and as consequence so has much of the associated electoral based violence. Noting the change in political climate since the 2013 elections, the tribunal has carefully considered the applicant’s political profile in Zimbabwe and whether he would face a real chance of serious harm in Zimbabwe now or in the foreseeable future based on his imputed and/or actual political opinion of support for the MDC. The tribunal considers MDC supporters are in the majority in his home town of Bulawayo.

    …

    59.    For those reasons, the tribunal considers there is only a remote and therefore not a real chance the applicant will suffer serious harm because of his political opinion in support of the MDC. Therefore, the tribunal is not satisfied the applicant faces a real chance of serious harm now or in the reasonably foreseeable future due to his political opinion of support for the MDC actual or imputed political opinion opposed to the Zimbabwean authorities and/or Zanu-PF or associated militias.

14. The sixth matter raised by the applicant was his own support for a change in the leadership of the MDC.  The tribunal considered that country information provided by the applicant did not indicate that MDC supporters in favour of a change of leadership were being harmed.  Accordingly, it considered the claim to be vague and without detail and was not satisfied that the applicant faced a real chance of serious harm on that basis.

15. Finally, the applicant relied upon his future career goals as something which exposed him to a real risk of harm in the future for a Convention reason should he return to Zimbabwe.  The tribunal recorded that the applicant:

    62.    … described himself as someone with a legal background with a passion for human rights, social justice and international law.  He will be in danger on return to Zimbabwe because he will be a vocal person.

16. However, after discussing the applicant’s evidence and highlighting certain internal “tensions” in the applicant’s evidence, the tribunal said:

    64.    The tribunal does not accept the applicant will be a ‘vocal’ person on return to Zimbabwe because of his having a legal background. The tribunal is willing to accept the applicant supports the MDC, supports human rights and international law. The tribunal accepts he undertook some legal studies in Australia, albeit for complicated reasons, he was not officially enrolled (which is discussed in more detail below). However, the tribunal considers the applicant has exaggerated his ‘passion’ for these issues so as to create a profile for himself upon which to make claims for a protection visa. For those reasons, the tribunal is not satisfied the applicant faces a real chance of serious harm now or in the reasonably foreseeable future because of his career goals.

17. The tribunal expressed its findings in relation to  whether the applicant has a well-founded fear of persecution in the reasonably foreseeable future if he returns to Zimbabwe as follows:

    70.    After assessing all the evidence and being mindful of the applicant’s personal circumstances, the tribunal has considered the claims of the applicant individually and cumulatively. For the above reasons, the tribunal finds the applicant faced no serious harm in the past. The tribunal is not satisfied the applicant faces a real chance of serious harm by the Zimbabwean authorities/Zanu-PF or associated militias because of his actual or implied political opinion arising from his father, his brother, his sister, his own future support for the MDC, his having studied in Australia or his returning to Zimbabwe as a failed asylum seeker, his career goals nor from MDC supporters opposed to his political opinion in favour of a change of leadership of the MDC. The tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if he returns to Zimbabwe. Therefore the applicant does not satisfy the requirements of s.36(2)(a).

18. The tribunal then turned its mind to the applicant’s claims for complementary protection pursuant to s.36(2)(aa) of the Act. In that respect, the tribunal repeated the findings and conclusions that it had made with respect to the applicant’s claims of past harm. It recorded the evidence about the harm suffered by the applicant in the assault that took place when he renewed his passport:

    75.    The evidence is the applicant was detained and assaulted for a few hours. He required a crown to one tooth. He required care from a nurse to stem bleeding. He defecated himself and had to journey from the police barracks to the home a relative dressed in soiled clothing. He suffered mental trauma. In his written statements he referred to harming himself, which was prevented by his brother. When asked at the hearing, he stated he has never sought any medical attention for any mental condition other than one failed attempt at counselling through his university. The evidence before the tribunal does not suggest he has a diagnosed     mental condition.

1. The tribunal recorded that it was satisfied that the detention and assault claimed by the applicant had occurred.  It accepted that the applicant suffered physical and mental harm as a result of the detention and assault.  However, the tribunal was not satisfied that the applicant’s detention and assault involved severe physical or mental pain or suffering and therefore did not meet the definition of torture, nor:

   limb (a) in the definition in s.5(1) of cruel or inhuman treatment or punishment, nor could the detention and assault be reasonably regarded in all the circumstances as cruel or inhuman in nature for the purpose of limb (b) of that definition.  

2. The tribunal accepted that the detention and assault may have caused some humiliation to the applicant, in particular, his having to journey while dressed in soiled clothing. However, the tribunal expressed that it was not satisfied that the detention and assault caused “extreme humiliation which was unreasonable”.

3. The tribunal was not satisfied that the harm that the applicant suffered from the detention and assault was significant harm for the purposes of s.36(2)(aa) of the Act. The tribunal was not satisfied that there was a real risk the applicant would be assaulted or detained in the future and found that he did not have a real risk of significant harm if he was removed to Zimbabwe.

4. In relation to the balance of the applicant’s claims, the tribunal relied on its previous findings in relation to the real chance of serious harm (for the purposes of s.36(2)(a) of the Act) and was not satisfied the applicant faced a real risk of significant harm upon return to Zimbabwe.

Grounds of review

Ground 1

1. The first ground of review relied upon by the applicant is:

   1. The tribunal failed to perform its statutory duty by failing to consider an unarticulated case raised squarely on the material, the particulars of which are:

   a. The Applicant was the victim of an assault by Zimbabwean officials, in Zimbabwe, in 2008 (“the 2008 assault”);

   b. The tribunal held at [25] that the 2008 assault resulted from the motivation of CIO officers to extract a bribe from the Applicant;

   c. The Applicant provided evidence of the prevalence of bribery by government officers in Zimbabwe;

   d. In considering whether the Applicant was at risk of significant harm if he returned to Zimbabwe for the purposes of section 36(2)(aa) at [73]-[76], the tribunal failed to consider if the Applicant was at risk of significant harm because of the prevalence of corruption and/or bribery in Zimbabwe.

2. Although his submissions were at times confused and confusing, the applicant’s argument is that the tribunal did not take into account an argument not articulated by him, but open and plain on the material before the tribunal.  As I understand his argument, it is that when considering his complementary protection claim, the tribunal did not properly consider whether as a necessary and foreseeable consequence of his being removed from Australia to Zimbabwe, there is a real risk that he will suffer significant harm, namely assaults by government officers such as the CIO, who would be seeking to extract bribes from him.

3. The tribunal accepted that the applicant had been assaulted in 2008 when he returned to Zimbabwe.  The applicant gave evidence that he paid bribes to a lady at the passport office, to border guards twice on crossing the Zimbabwe/Botswana border as well as (with all the other passengers) when passing police checkpoints on the bus. He gave evidence too, regarding his bribing the dentist to treat him (because the dentist was obliged to report the applicant’s injuries to the police because he told the dentist how he suffered the injury). He stated when crossing the border back into Botswana, despite still having injuries, he paid a little bit of money and there were no more questions. 

4. The tribunal concluded that the CIO officers who assaulted the applicant were motivated to beat the applicant with the intention of extracting a bribe from him.  The tribunal appears (at [25]) to have accepted the applicant’s evidence of the prevalence of bribery by government officers in Zimbabwe.  The tribunal says (at [25]):

   For these reasons, the Tribunal considers the essential and significant reason the CIO officers assaulted the applicant was the financial gain of his paying a bribe to them and not his political opinion.

5. The tribunal dealt with the applicant’s claim to complementary protection from paragraphs [72] – [78] of the tribunal’s reasons.  Of those, paragraphs [73] – [76] deal with the claim based upon the applicant’s 2008 experience.

6. As I have set out above, the tribunal considered the applicant’s evidence about the injuries that he sustained in the assault.  It also considered the other effects of the assault upon the applicant.  The tribunal concluded that the effects that it found made out in the evidence did not amount to significant harm for the purposes of s.36(2)(aa) of the Act and so concluded that the applicant did not suffer serious harm.

7. But plainly open on the evidence was a case that there was a real risk that the applicant would suffer significant harm at the hands of the CIO who might wish to exort money from the applicant by the use of physical violence against him. 

8. The tribunal did consider such a case.  The tribunal considered, and made findings about the risk that the applicant would be detained and assaulted in the future.  At paragraph [76], the tribunal said:

   Having regard to all of the evidence before it, the Tribunal is not satisfied there is a real risk the applicant will be assaulted or detained in the future and finds he does not have a real risk of significant harm if he is removed to Zimbabwe.

9. In my view, although brief, that was sufficient to dispose of the applicant’s case that he would be at real risk of significant harm of detention and assault should he be returned to Zimbabwe.  That finding was made having regard to the applicant’s claims about the prevalence of corruption and bribery in Zimbabwe.

Ground 2

1. The second ground of review relied upon by the applicant is:

   2. The tribunal erred in law by failing to consider whether the need to act discreetly (by the Applicant concealing his political opinion) to avoid the threat of serious harm constituted persecution, the particulars of which are:

   a. The Applicant gave evidence that he will be asked about his political opinion at the border, if he has to return to Zimbabwe;

   b. The tribunal’s reasons at [48] state in effect that it discussed with the Applicant that it was reasonable to require the Applicant to protect himself and avoid disclosing his political opinion at the border.

2. The applicant gave evidence that border officials would ask about his political opinion when he crossed the border into Zimbabwe.  At paragraph [48] of the reasons (set out above), the tribunal recorded its discussion with the applicant about the steps he might take to protect himself when crossing the border by avoiding disclosing his political opinion at that time.

3. The applicant contends that this represents an unreasonable imposition upon him of a requirement to modify his behaviour so as to live peaceably in Zimbabwe.  He argues that the imposition of such a requirement and the use of such a requirement to refuse the grant of a protection visa is an error by the tribunal.  The applicant argues that the tribunal based its determination, in part, on the proposition that the applicant could have no well-founded fear of persecution if he could avoid persecution by not disclosing his political opinion.

4. However, the tribunal’s decision was not so based. 

5. The tribunal at [48], in response to the applicant’s claim that he would be asked about his political opinion at the Zimbabwe border crossing, merely recounted information discussed at the hearing, namely that it was reasonable to require the applicant to take prudent steps to protect himself and that he may be able to avoid disclosing his political opinion when crossing the Zimbabwe border.

6. However, in reaching in its findings in relation to the applicant’s risk of harm upon return to Zimbabwe, in the context of s.36(2)(a) of the Act the tribunal did not suggest that the applicant should hide or not disclose his political opinions. Rather, its findings acknowledged that the applicant’s political opinion would be known and not hidden. The tribunal found however, at [59] of the reasons for decision that it:

   is not satisfied the applicant faces a real chance of serious harm now or in the reasonably foreseeable future due to his political opinion of support for the MDC actual or imputed political opinion opposed to the Zimbabwean authorities and/or Zanu-PF or associated militias.

7. The tribunal did not make a finding, nor impose upon the applicant a requirement, that a level of discretion was expected by the applicant in order to avoid persecution as the applicant claims.  Its findings were made on the basis that the applicant’s political views would be known.

8. No jurisdictional error is revealed by the applicant’s second ground of review.

Conclusion

1. The application does not demonstrate that the tribunal’s decision is affected by jurisdictional error.  The application must be dismissed with costs.

2. I make the orders set out at the commencement of these reasons.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  6 November 2015