BZK16 v Minister for Immigration

[2017] FCCA 877

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZK16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 877

Catchwords:
MIGRATION – Protection Visa – whether tribunal’s decision affected by jurisdictional error – where no error established in tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.424A, 424AA

First Applicant: BZK16

Second Applicant: BZL16

Third Applicant: BZM16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 677 of 2016

Judgment of: Judge Vasta

Hearing date: 21 April 2017

Date of Last Submission: 21 April 2017

Delivered at: Brisbane

Delivered on: 21 April 2017

REPRESENTATION

Counsel for the Applicants: Mr W.J. Markwell

Solicitors for the Applicants: Direct Brief

Counsel for the Respondent: Ms A.J. Stoker

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application filed 26 July 2016 be dismissed.

2. That the First Applicant pay the First Respondent’s costs of and incidental to today’s hearing fixed in the sum of $7,206.00 (inclusive of GST).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 677 of 2016

BZK16

First Applicant

BZL16

Second Applicant

BZM16

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 26 July 2016, the Applicant, BZK16, and with him BZL16 and BZM16, asked this Court to judicially review a decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 29 June 2016, which affirmed a previous decision by a delegate to the Minister not to grant the Applicants protection visas. 

2. In short compass, the facts are that the Applicants are citizens of Ethiopia, and the Tribunal accepted that they belonged to Amhara ethnic group and were orthodox Christians.  The main Applicant, who I will just refer to as the Applicant, BZK16, was living in the capital of Ethiopia, Addis Ababa. 

3. He arrived in this country on 10 January 2012 under a student visa.  He had been given an AusAID scholarship to study a Masters of Environment at Griffith University.

4. BZL16, who is the wife of BZK16, and BZM16, who is their infant son, arrived on 4 December 2012 on a visa reflecting status as a family member of a person on a student visa. 

5. On 23 December 2013, some 18 days before the student visa would have lapsed, the Applicants all applied for protection visas.  They were interviewed by the delegate on 10 March 2014, and, on 11 September 2014, their applications were refused by the delegate.  Within time, the Applicants filed applications for review of that decision with the Administrative Appeals Tribunal, who made the decision that I am now asked to review.

6. The summary of the claims from the first Applicant, BZK16, are that the Amhara ethnic group was the historic enemy of the Ethiopian People's Revolutionary Democratic Front (“the EPRDF”) and that the Applicant faced numerous physical, emotional, psychological, health and economic harms by party officials and members. 

7. He detailed that, in 1991, the property of his parents was confiscated by that ruling party and his father was imprisoned due to his ethnicity and the fact that he had a blood relationship with the previous monarchy of Ethiopia.  When the father was finally released, he was given only a quarter of the farmland that was given to other farmers in the region, and he was threatened several times.  The Applicant himself says that he was imprisoned by soldiers for the EPRDF and forced to work for nine days.

8. He said that seven years later, local officials attempted to send him and his brother to war without any military training, but they managed to flee.  He said in 2002 he participated in a peaceful university protest, following which he was detained for three months, tortured and suspended from university for a year.

9. Then in 2005 he became a member of the Coalition for Unity and Democracy (“the CUD”).  He said that he was active in the CUD.  He became a coordinator, and that they won the election that year, but all its top leaders were imprisoned and more than 200 citizens were killed, assaulted, tortured and imprisoned.  He said that he was arrested at this time.  He said that because of his ethnicity and his membership of the CUD, the only regions that he could work were in Addis Ababa and his birthplace.

10. He said that he couldn’t obtain a scholarship but he studied for a Master of Pharmaceutical Chemistry for two years and officials forced him to interrupt his study and live and work in a hostel for six months. It was there that he claimed he caught a bacterial infection and that caused him to develop central diabetes insipidus. 

11. He was then successful in obtaining an AusAID scholarship. His employer, Addis Ababa Water and Sewerage Authority (“AAWASA”), signed an agreement with him and with AusAID that essentially provided that it would continue paying him a salary and provide him with a professional position upon his return on the proviso that he, the Applicant, would be required to work in that position for at least two years.

12. The Applicant claimed that the EPRDF ordered the employer, AAWSA, to cancel the agreement. But, the Applicant says, with the help of a scholarship officer at the Ministry of Education, he was able to finish all the processes secretly and leave the country. 

13. The Applicant also claimed that in 2010 or 2011, the government had charged him with corruption for teaching at the Medico College after hours and on weekends and had attempted to jail him indefinitely. He also claimed that here in Australia, he receives treatment for his central diabetes insipidus but that the medicine is expensive and it is not available in Ethiopia. He claimed that without his medication the condition becomes life-threatening.

14. His wife, BZL16, claimed that she had been degraded, terrorised and mistreated due to her political view, ethnic background and refusal to commit crime, and that while she was a student she refused to become a member of the EPRDF, and then was targeted and had unprovoked violence committed upon her on the campus. 

15. She graduated and did become a member of the EPRDF so as to be able to gain employment at the Land Administration Office. She claimed that she refused to threaten customers who weren’t members of the party or who were of Amhara background, and she claimed that as a result the party was ready to put her in prison. 

16. She claimed that she actually cancelled her party membership and was forced to do what she claimed were unacceptable jobs without rules or regulations.  When she refused, she was attacked. She claimed she had no right to annual, sick or maternity leave and had no pre-natal or post-natal leave.

17. So those claims were quite extensive.  The Tribunal, as I noted during argument, did give a very lengthy and thorough 75 page decision. 

18. The Tribunal found, in effect, that the claims of the First and Second Applicants were inherently incredible and unreliable.  In particular, the Tribunal found that the First Applicant’s history was not consistent with claims that he had been regarded adversely by authorities. 

19. The Tribunal noted that the Applicant, BZK16, had been employed continuously and had obtained an AusAID scholarship and found that it was really unbelievable to accept that he was able to gain that scholarship and come to Australia after government officials had allegedly forced the manager of his employer to cancel his contract.

20. The Tribunal found that his claims that he was being closely monitored by authorities could not be true if he was then able to depart Ethiopia to go to Kenya for an interview, and then come back to the country, and then leave again to come to Australia.

21. The Tribunal found that the Applicant’s explanations regarding his departure from Ethiopia, as well as his resignation from his employment, were inconsistent. 

22. Ultimately, the Tribunal found that the Applicant departed Ethiopia on the scholarship with the knowledge of the Ethiopian authorities, and that this, therefore, undermined his claims to have been a person of adverse interest to those authorities. 

23. In relation to the claims about the employment, the Tribunal didn’t accept that the Applicant had been discriminated against in the workforce.  The Tribunal found that the Applicant had been employed from December 2004 to December 2011, and that over that period his title had changed and his pay had increased.  It found that the Applicant being assigned a management position in a public sector organisation was inconsistent with his claims to have had an adverse profile with the authorities.

24. In relation to his claims regarding being a member of the CUD, the Tribunal didn’t accept that he was ever a member of, or involved in, the CUD.  The difficulty with the Applicant’s evidence was that he claimed to have joined the CUD eight months before it came into existence.  The CUD was actually made up of four parties.  He was unable to correctly name those four parties that made up the CUD. 

25. The Tribunal found that the inconsistency of his evidence of the time he joined and the parties making up the CUD, with the actual time of formation and the parties involved, led them to consider that he was making up his tale of CUD membership.  That fundamentally undermined his credibility that he was politically involved.

26. The Tribunal found that it was surprising that a person who was politically active, and in the role of a local coordinator, would not know which parties made up the CUD.  The Tribunal also found that it was inherently incredible that someone who was a member of the CUD could have a long term public sector job and also obtain an AusAID scholarship and come to Australia and have obtained the considerable benefits he had obtained from the government authorities. 

27. In relation to the Applicant’s claims that his family had been discriminated against for its relationship to the royal family, the Tribunal had doubts about the relationship to the royal family, but, in any event, didn’t accept the circumstances of the family were consistent with his claimed profile or that the family had suffered discrimination, intimidation or had otherwise been targeted.

28. In relation to his claims to having been detained, the Tribunal did not accept he had been detained by authorities and forced to withdraw from his studies for six months, for the purposes of engaging in a project, because, one would think, if that project was for the benefit of other municipal agencies, then why would there be someone with those political beliefs working for the agencies.  It did not stand to reason.

29. Importantly, when considering the claims regarding the illness, the central diabetes insipidus, the Tribunal accepted that he did suffer from this disease but didn’t accept that he contracted it as a consequence of mistreatment whilst being detained by the authorities. The Tribunal did not accept that he had been denied medical treatment. 

30. The Tribunal found that there was independent evidence that the drug was available in Ethiopia, and the Applicant’s willingness and ability to take on study, as well as working fulltime while he was in Ethiopia, was not consistent with the circumstances of a person who was unable to access adequate treatment for a potentially fatal disease. 

31. The Tribunal did not accept that the Applicant would be unable to access effective treatment in Ethiopia, and even if they were incorrect on that, the Tribunal didn’t accept that the unavailability of the medication would constitute persecution for a Convention reason.

32. In relation to his claim that he was charged with corruption for teaching after hours and on weekends during 2011 and 2012, the Tribunal did not regard this claim as credible.  It was raised for the first time in a document provided at the Tribunal hearing and, given that such a charge would have been a very significant matter, there was no satisfactory explanation for the failure to raise it earlier when he first applied for the visa, and in his interviews with the delegate.    

33. In relation to the peaceful protest claims, the Tribunal found that the evidence was inconsistent and that led to the Tribunal not accepting that he had any involvement with protests or demonstrations.

34. The Applicant made a claim that his telephone calls were being monitored by Ethiopian authorities whilst he was in Australia, and the Tribunal found that these claims were very much lacking in credibility. 

35. The claims that he and his brother were forced to join the military to fight in the Ethio-Eritrea war in 1998, but were able to flee and were hidden, were incredible.  This is because the Applicant was somehow still able to finish secondary school in 1999 and go on to university, which seems very odd if he were taken out of school in 1998.  The documents show that the Applicant’s schooling was unbroken at a single educational institution during this time.  Therefore, that claim was not credible.

36. The Tribunal looked at the other claims about whether he was free to move around Ethiopia, and the Tribunal regarded the chance of his being persecuted, if he were to travel to other parts of Ethiopia, as being remote. 

37. In relation to the claim to be persecuted on the basis of his Amhara ethnicity, the Tribunal accepted that Ethiopian authorities had been guilty of some human rights abuses, but did not accept that Amhara people, generally, face persecution or a danger of genocide. And, noting the circumstances of the Applicant and the findings it made, rejecting the claims to have been politically involved and of a profile antagonistic to authorities, the Tribunal did not accept that there was a real chance he would be persecuted in Ethiopia for reason of his Amhara ethnicity or any actual or imputed political opinion.

38. The Tribunal then considered that there were no Convention criteria or complementary protection criteria that had been fulfilled, and, because of that, affirmed the decision not to give the Applicant a protection visa. 

39. In relation to the wife’s claim to have been threatened, harassed, targeted and discriminated, the Tribunal found that those claims were lacking in credibility because it appears that she worked continuously from March 2009 to, it seems, February 2013.  Having left the country in December 2012, it seems she was paid until February 2013 and she did not have her employment terminated.  The Tribunal found the evidence that she was repeatedly asked to engage in improper transactions sat uncomfortably with her claimed political profile.

40. The Tribunal considered that the country information indicated the Ethiopian public service was highly politicised and that there were reports of public sector workers having their employment terminated for refusal to join the EPRDF. It seems inconsistent that someone who says that she refused to do what the EPRDF asked her to do, and actually terminated her own membership of that party, would still have been someone who was employed in the continuous way in which she was. 

41. The other claims about discrimination against her family were also found to be lacking credibility, and her claims about political activity were also found to lack credibility. 

42. So the Tribunal did not find that she met the criteria for the Convention protection or the complementary protection, and so, in her case, did also affirm the decision of the delegate not to issue the visas.

43. There are a number of grounds that have been advanced for the Applicant.  Mr Markwell has appeared today to argue those grounds.  I will go through them one by one. 

44. Ground one is:

    “1. The Second Respondent has disregarded its own findings in regards to the independent ‘Country Information’ and has only considered the ‘Country Information at a superficial level and, accordingly, has not taken a relevant consideration into account and/or has asked the wrong question and/or has misdirected itself and a jurisdictional error has occurred. 

45. Mr Markwell expanded upon this ground where, realistically, his argument was predicated upon an acceptance that the Applicant was someone who was going to be prejudiced.  That is, that because the country information said that there was a highly politicised civil service, therefore, because of the Applicant’s beliefs he would have to have been someone who was persecuted.

46. The problem with this argument is that the Tribunal accepted the country information, but found that the Applicant was not a person who had the particular profile and was not a person who was going to be persecuted. Whilst there is a highly politicised civil service, the Applicant was able to not only exist within that civil service from 2004 until the end of 2011 (when he left to come to Australia), but he thrived in it. His position changed, his pay increased, he was given responsibilities and he was allowed to leave the country on the AusAID scholarship, with the blessing of the Ethiopian authorities.

47. So when one looks at that ground, there is nothing contradictory in the way in which the Tribunal has gone about looking at country information.  In fact, the country information is quite consistent with its findings. 

48. The gravamen of this ground is found in a non-acceptance, by the Applicant, that the Tribunal had made those adverse findings against him.  But when one takes into account those adverse findings, there is no contradiction in the manner in which the Tribunal has acted.  Therefore, there is no jurisdictional error, and there is no merit in that ground.

49. Ground Two is :

    “2. The second respondent in its decision has misdirected itself in relation to the independent ‘Country Information’ in relation to the treatment of asylum claimants being returned to Ethiopia.  The Second Respondent has also asked the wrong question and a jurisdictional error has occurred. 

50. This ground is based upon the Tribunal saying this:

    “At the hearing, the Tribunal put to the applicant that it had not seen information to suggest that the authorities harmed refugees, generally.  The Ethiopian government is reportedly reluctant to accept involuntary refugees.  Nonetheless, DFAT assesses that people who are returned to Ethiopia, and who are perceived as being political activists to the government, face a high risk of being monitored, harassed, arrested and detained, particularly if they continue to engage in political activities upon their return, and if they are associated with groups that have an armed military component.  DFAT also assesses that people who openly criticise the Ethiopian government while they are outside, face a high risk that the Ethiopian authorities will be aware of these activities and may take action against these people upon their return.”

51. The argument, again, is predicated upon an acceptance that the Applicant is the sort of person who would be targeted by the authorities because of his political beliefs and activities, and what he has done and said in regards to the Ethiopian government. But the ground fails to recognise that the Tribunal has already found that the Applicant is not one of those persons. 

52. So, therefore, the DFAT information, that was quoted, would be that there is no realistic harm to be expected to be occasioned to the Applicant if he returns to Ethiopia, because he is not one of that class of persons who would be subject to the persecution.  There is, then, no merit in that ground.

53. However, Mr Markwell, as it were, opened a new sub-ground, in relation to that aspect, and I was able to articulate that ground for him.  That ground was that the Tribunal has ignored evidence that, whilst in Australia, the Applicant has been openly critical of the Ethiopian government, and has engaged in activities designed to embarrass the Ethiopian government on the world stage. 

54. This was not particularly mentioned in any of the submissions. It was something that came up on the day.  There does not seem to have been anything mentioned about this particular activity at all, in the 75 pages, and there does not seem to have been any evidence of any activities done, whilst in Australia, by the Applicant.

1. The only reference in all of the material that could be found to any sort of activities of a human rights nature is found in a letter, at page 498 of the Court book, from the local Ethiopian leader of the community here in Brisbane.  That letter was given to the Tribunal.  Whilst it talks about what the Applicant has done, in my view, it is not something that actually descends to outright political activity that would be embarrassing the Ethiopian government on the world stage. 

2. But, nevertheless, the ground is that the Tribunal has ignored that evidence.  Quite helpfully, Ms Stoker was able to point me to paragraph 40 of the decision of the Tribunal.  In that paragraph, the Tribunal says this, and it was dealing with the Applicant’s reply to a request for more information after the hearing had occurred, that there was actually a response given.  The Tribunal said this:

   “Attached to this response was a letter from Anteneh S. Anteneh, president of the Ethiopian Community Association of Queensland Incorporated, and vice-president of the Ethiopian Community Associations Council in Australia.  The Tribunal has considered the submissions of 13 June 2016, and the letter from Anteneh S. Anteneh.”

3. The Tribunal, in that paragraph, say that they have considered the letter, therefore it cannot be said that they have ignored evidence of the activities of the Applicant whilst he was in Australia.  Therefore, I find that there is no merit to ground two or the amended part of ground two. 

4. Ground 3 was this:

   “In regard to the Applicant’s medical condition, the Second Respondent has asked the wrong question and/or has misdirected itself and a jurisdictional error has occurred.”

5. In the argument, Mr Markwell submitted that the fact of the drug Minirin, or Desmopressin, being on the list of drugs available in Ethiopia, was a matter that should have been put to the Applicant. The claim is made, quite boldly, that this was not put to the Applicant, and it needed to be put to the Applicant, pursuant to s.424A and s.424AA of the Act. The problem is that the Tribunal has, at paragraph 120, said the following:

   “The Tribunal accepts the applicant does have the medical condition described by Dr Russell, and is sympathetic to this.  However, it does not accept that the applicant contracted the disease in the manner he claimed.  As the Tribunal has put to the applicant, there is independent information suggesting that Minirin is available in Ethiopia.  It is apparent that Dr Russell is simply repeating what the applicant has told him about the availability of the drug.  The Tribunal notes that the sixth edition of the List of Medicines for Ethiopia…

   And it gives a reference and website address for it.

   … lists Desmopressin.  The Tribunal notes the applicant’s claims about this list being a guideline only, and about his inquiries indicating that the drug was not available in Ethiopia.

6. Paragraph 120 clearly shows that the Tribunal did put the information regarding to the drug to the Applicant, and it noted the Applicant’s response to the putting of that information.  If it were that the Applicant wished to maintain that such was not put to the Tribunal, the Applicant had ample opportunity to provide the Court with a transcript, or even have an affidavit from someone who had listened to the proceedings. 

7. Mr Markwell, quite honestly, submitted that he had not, himself, listened to the hearing, and he had not caused a transcript to be provided, but he relied almost on a Dennis Denuto-like “vibe” that this did not happen.  Clearly it did happen, otherwise there would be a claim that the Tribunal has actually been dishonest in what it said in paragraph 120.

8. If the Tribunal was actually being dishonest, that in and of itself would be a jurisdictional error, in my view, and would have caused me to have issued the writs asked for.  In fact, if it had been shown that there was dishonesty, the Minister, I am sure, would have conceded the point that we have a dishonest Tribunal member and there would be other repercussions. 

9. But, of course, none of this happened and I cautioned Counsel about making unfounded allegations about the conduct of Tribunal officers. There was no obligation in any event, as far as I’m concerned, to put that information. It is information that does not involve the Applicant himself, but is simply information about a circumstance of the country and there is no need, under s.424A or s.424AA to put such to the Applicant.

10. Mr Markwell submitted that it was still a matter of procedural fairness for that to happen, however that is not so, because s.424A and s.424AA are within the section of the Act that codifies what is procedural fairness. Once it is codified then the common law aspect of procedural fairness does not obtain. That is why I am of the view that there is no merit in ground three.

11. With regard to ground four, that is not really a ground.  It says:

    “4. The Applicant refers to the decision of the Second Respondent marked with the letters “BSW-1” and annexed to the Applicants Affidavit dated 22 July 2016”

12. Ground five is that

    “5. The second respondent has not taken a relevant consideration into account and has contradicted itself.”

13. That is very vague, and Mr Markwell conceded that such was really an extension of ground two, and I am of the view that there is no merit in that ground. 

14. The final ground, ground 6 is that

    “6. The Second Respondent has made a decision that is so illogical and irrational that no other decision-maker would have made.”

15. When going through the facts in the length that I have, at the beginning of these reasons, it showed that the conclusions made by the Tribunal were well and truly open to it.  It is not the case to argue that these are findings that should not have been made.  It is for the Applicant to establish that these are findings that could not have been made.  The former is merely a merits review, whereas the latter is something that would constitute a jurisdictional error.

16. As the recitation of those facts does show, the findings were well and truly open to the Tribunal.  That being said, there is then no merit in ground 6.

17. Therefore there has been no jurisdictional error established. I dismiss the application and order that the Applicants pay the costs of the Minister, fixed in the sum of $7,206.00.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  24 May 2017