DTZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 44
•3 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DTZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 44
File number: ADG 265 of 2019 Judgment of: JUDGE YOUNG Date of judgment: 3 February 2022 Catchwords: MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal to refuse protection visa – where the applicant is of Ndebele ethnicity and a citizen of Zimbabwe – where the applicant claims he has suffered violence and a fear of persecution based on his political affiliations – where the Tribunal was not satisfied the applicant was politically active – where the Tribunal was unconvinced by the applicant’s claims – where the applicant claims the Tribunal failed to consider relevant country information – where the applicant claims the Tribunal failed to consider his ethnicity as a relevant risk – Court satisfied the Tribunal dealt with the claim adequately – Court satisfied the application should be dismissed. Legislation: Migration Act 1958 (Cth) Cases cited: Applicant WAEE v Minister for Immigration, Multiculturalism and Indigenous Affairs (2003) 236 FCR 593
NABE v Minister for Immigration and Multicultural Affairs (2004) 144 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 9 December 2021 Place: Darwin Solicitor for the Applicant: Ms Rutherford of Camatta Lempens Counsel for the First Respondent: Ms Hooper Solicitor for the First Respondent: Australian Government Solicitor The Second Respondent: Filed a submitting notice, save as to costs ORDERS
ADG 265 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DTZ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
9 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The costs of the first respondent be paid by the applicant, such costs to be taxed pursuant to Part 40 of the Federal Court Rules 2011 in the absence of agreement.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE YOUNG:
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 24 June 2019 affirming a decision of the Minister’s delegate made on 7 February 2014 to refuse the applicant a protection visa. The applicant first sought review of the delegate’s decision in the Federal Circuit Court (as it then was) and the decision was quashed and the matter was remitted for rehearing by consent to the Tribunal on 14 December 2017. It was reheard on 24 June 2019.
Background
The applicant is a citizen of Zimbabwe. He came to Australia on a tourist visa on 21 September 2012 and applied for a protection visa in December 2012. From the beginning of 2009 until his arrival in Australia the applicant resided in South Africa.
The applicant's claims recorded by the Tribunal can be summarised as follows. He has a well-founded fear of persecution based on his Ndebele ethnicity; his membership of an opposition political group, MDC-N (Movement for Democratic Change – Ncube, one of the factions of the MDC); he suffered violence from the government party, ZANU–PF (Zimbabwe African National Union – Patriotic Front), during the 2008 election in Zimbabwe; incidents involving him and his family in more recent years indicate that the ZANU-PF and agencies of the Zimbabwean government have a continuing hostile interest in him and he fears to return to Zimbabwe because of its poor human rights record.
The applicant claimed to have been assaulted by ZANU-PF members and threatened with death while he campaigned for the election of an opposition candidate in 2008. He said he was injured in the assault and fled to South Africa for medical treatment and refuge. Although the Tribunal accepted that the applicant had been assaulted during election campaigning in 2008 it did not accept that the applicant had fled to South Africa for medical treatment or refuge. The Tribunal noted that the applicant was employed in Zimbabwe until December 2008 and commenced employment in South Africa in early January 2009 in a managerial capacity with a South African company. The Tribunal considered that this appeared to be a smooth transition between employers and did not appear consistent with the applicant hastily fleeing. The applicant was employed in South Africa from the beginning of 2009 until 2012 when he came to Australia.
The applicant said he had been active in the opposition group MDC in Zimbabwe since 2006 when he was a tertiary student at Mutare Polytechnic College in Zimbabwe. He said that after he fled to South Africa in 2008 he remained involved in the MDC in South Africa and was subject to monitoring by individuals whom he believed were agents of the Zimbabwean government.
The applicant said that he and his family had been subject to continuing hostile interest or harassment by the Zimbabwean government. He said that his stepbrother was killed in a car crash in 2015 while driving a car registered in his, the applicant's, name. He said he heard from a relative that someone tampered with the brakes of the car and he believes he was the intended target. He said also that agents of the government party, ZANU-PF, had harassed his paternal grandmother.
He said that in July 2018 he received a threatening voicemail message sent from Zimbabwe telling him to cease any political activity. He said that although he had been in Australia at that time for six years he had donated $100 to an opposition political figure or a person campaigning for an opposition political figure and he believes this is why he was threatened.
The applicant also provided documentary evidence. The applicant told the Tribunal that he had become a member of the MDC in 2007 or 2008 but he produced a letter from the MDC in Bulawayo which stated that he joined MDC in 2006. The applicant said that he assumed this was a reference to his activities in 2006 while a student at the Mutare Polytechnic College, although he had not previously claimed to have been active on behalf of the MDC while a student there. He also provided a letter from an MDC official based in South Africa stating that the applicant had been involved in community projects on behalf of the MDC and had been monitored by “suspicious individuals” outside his home. The applicant produced an MDC membership card which stated he joined in 2010, not 2007 or 2008 as the applicant claimed, and that his subscription was paid until 2012. The card gave the applicant's address as Bulawayo although the applicant did not live in Bulawayo, but rather South Africa from 2009 to 2012.
The Tribunal did not accept that the applicant had been politically active in South Africa. It concluded that his activities had been limited to involvement with an investment scheme or product and, according to the applicant, providing information about events in Zimbabwe.
The Tribunal concluded that the claim the applicant was being monitored by suspicious individuals was implausible. The Tribunal considered that the claim that he was the target of a murder plot by tampering with the brakes of his car was unconvincing and the claim of having received threats in July 2018 over providing a $100 donation to a person who was supporting an opposition candidate in the Zimbabwe elections was implausible.
The Tribunal concluded that the applicant's claims were embellished and were not supported by the inconsistent documentary evidence he proffered.
The Tribunal was not satisfied that the applicant would continue to be involved in opposition politics were he to return to Zimbabwe and was not satisfied that he had been involved in opposition politics since leaving Zimbabwe. The applicant said that he had been involved in Zimbabwe community organisations in Australia but they were multi-ethnic and across the political spectrum.
The Tribunal noted that the applicant did not claim that he was at risk of harm because of his ethnicity or membership of the Ndebele ethnic group.
Grounds of review
The applicant's first ground of review is:
The Administrative Appeals Tribunals failed to perform the statutory task required of it to conduct a review of the applicant's application for a Protection visa, by failing to consider relevant country information advanced by the applicant, and instead relying on outdated country information, and by failing to consider the country information advanced in the context it had been relied upon.
The applicant provided particulars of this ground which, in summary, alleged that the Tribunal had ignored reference to some 34 news articles dated from 2018 and 2019; had relied upon a DFAT country information report (dated 11 April 2016) on Zimbabwe which was outdated, when more current information was available; the more current information considered by the Tribunal consisted of only three articles which considered only economic issues and failed to consider the political aspects of the country information offered by the applicant.
The applicant’s second ground of review is:
The AAT failed to consider an integer of the applicant's claim, namely that his Ndebele ethnicity was relevant to the risk of his (sic) being targeted for political reasons, due to the potential for an association by the authorities of his ethnicity to a secessionist movement.
Particulars
2.1 The applicant advanced a claim to the AAT with respect to his ethnicity, being that some politically motivated violence was directed towards people from his ethnicity who wanted secession from Zimbabwe.
2.2 While the AAT was correct to identify that the applicant did not fear harm on the basis of his ethnicity alone, it failed to appreciate that the applicant's ethnicity was a factor which he feared would exacerbate the risk of his being persecuted for political reasons.
2.3 The AAT therefore failed to appreciate the true nature of the claim advanced by the applicant, and failed to determine the requisite state of satisfaction under section 65 of the Migration Act 1958.
Consideration
Ground 1
The argument in this ground was that the 2016 DFAT report did not adequately address the true situation in Zimbabwe because, being produced in 2016, it did not address the deterioration in the political and security environment of Zimbabwe before, during and after the 2018 elections. It was submitted that the applicant had provided 34 newspaper or online articles describing the, then, current situation in Zimbabwe. It was submitted that the Tribunal’s failure to expressly or specifically refer to any of those newspaper articles required the inference that it had not given consideration to those articles. Counsel confirmed that the articles meant were the articles appearing in the footnotes to the applicant’s submission of 19 February 2019 to the Tribunal. The articles are listed again at the end of the submission (Court Book 360).
This submission must fail at the outset. At paragraph [34] of its reasons for decision, referring to the submission of 19 February 2019, the Tribunal said:
The submission includes reference to country information sourced from Human Rights Watch, Amnesty International and the International Crisis Group as well as news reports from the BBC and ABC. This country information is provided as evidence that people opposing the current regime are at risk of harm. Country information is also provided as to the treatment of the applicant’s ethnic group, the Ndebele people.
The allegedly ignored 34 articles include nine articles from Human Rights Watch, Amnesty International, the International Crisis Group, the BBC and the ABC. The passage quoted briefly summarises the articles. No inference is available that the articles were ignored. On the contrary, the only available inference is that some, if not all[1], of them were considered by the Tribunal.
[1] It is also apparent that a number of the articles were inaccessible or not easily accessible because of broken links or typographical errors in the URL provided by the applicant, according to the affidavit of Ms Feehan of 29 November 2021.
In addition, the Tribunal referred to and quoted from three newspaper articles not referred to in the applicant’s list of articles. These articles from Associated Press, Reuters and Bloomberg, dated from November 2018 to January 2019, describe economic hardship, food shortages violent protest and the killing of rioters by the army in Zimbabwe. The court asked counsel for the applicant to indicate if the articles said to have been ignored by the Tribunal described a substantially different situation to the one described in these three articles. Counsel asserted they did and pointed to three articles appearing in the affidavit of Ms Feehan. The first article dated 21 January 2019 from the Sydney Morning Herald, This Is Worse Than Mugabe, describes fuel price riots and the accidental shooting of bystanders. The second article dated 16 January 2019 from The Guardian, Civilians Beaten and Abducted in Major Zimbabwe Crackdown, describes roundups and beatings of civilians by the army following rioting in Bulawayo and elsewhere. These two articles appear to refer to much the same events as the Bloomberg article referred to by the Tribunal. The third article dated 14 August 2018 from Bulawayo 24 News, Ibhetshu, MLF in Trouble Over Gukurahundi, refers to the intimidation of persons seeking justice for the Gukurahundi massacres of Ndebele people carried out by the Mugabe regime in the 1980s. Although the applicant is an Ndebele person he is not among those involved in seeking justice for the Gukurahundi massacres and these issues were not directly relevant to his claims.
There is no evidence that the Tribunal failed to consider the country information advanced by the applicant, specifically the 34 newspaper and online articles. On the contrary, the Tribunal referred to and summarised some of those articles in its reasons for decision. There is no evidence that the Tribunal failed to consider the country information “in the context it had been relied upon”. On the contrary, the articles quoted by the Tribunal in its reasons for decision referred to substantially the same events as those included in the articles referred to by the applicant. The Tribunal, in relying on the 2016 DFAT report, did not rely on “outdated” information. On the contrary, much of the assessment in that report remained relevant and anticipated the situation in Zimbabwe in 2018 and 2019, the period which is the subject of the country information provided by the applicant. The applicant himself relied on the 2016 DFAT report in his submissions of 19 February 2019 for that reason.
There is no error in the Tribunal’s approach. This ground fails.
Ground 2
This ground is said to relate to the applicant’s Ndebele ethnicity and his claimed involvement with a secessionist party, Mthwakazi, in South Africa. In his statutory declaration dated 15 February 2019 the applicant expressed his claim this way:
16.I have had some dealings with a group called Mthwakazi, which is a group calling for secession of Matabeleland from Zimbabwe. I share some ideological beliefs with them though I think their position is somewhat unrealistic. The issues they advocate on which I share relate to marginalisation of people from our area. We are essentially second class citizens in Zimbabwe.
17.I used to meet up with them in South Africa and hold candid conversations.
18.Recently, the Provincial Secretary, Henry Dube, of the party, was shot in Bulawayo. If I were associated with this group, even by imputation, this could lead me to be a target.
Under the subheading “Ethnicity”, his migration agent submitted as follows:
40.The applicant has also had some involvement with the secessionist party Mthwakazi in South Africa, and holds some views sympathetic to their own. Recently, the Provincial Secretary Henry Dube was shot in Bulawayo.
The applicant relied on the transcript of hearing conducted by the Tribunal on 26 February 2019. At page 21 the member asked and the applicant answered as follows:
… is there any other concerns (sic) you have on returning to Zimbabwe, say, in regards to your religion, membership of a particular special (sic) group? Or is it more because your ethnicity and your political opinion? ---- I think it’s more for – the ethnicity does not necessarily play that much of a part, but it does play a part – but more of my political opinion and being a member of a particular organisation. Or being associated with some organisations.
Later at page 40 of the transcript there was the following exchange between the member and the applicant:
So is there anything you fear in terms of your ethnicity if you go back to Zimbabwe? ---- I was included (sic) a member of (indistinct) who was killed during the riots.
Yes? ---- And he was targeted, and I have associated myself with those because they are what you call (indistinct). I have been associated with them but not directly but I’ve been part of that. But when I was in [South] Africa, I used to obviously proudly hang around with them, talk to them, stuff like that, so might be guilty by association.
This exchange appears to refer to Henry Dube who was shot during rioting in Bulawayo (although the newspaper article referred to by the applicant does not assert that Mr Dube was shot because of his involvement with Mthwakazi or that he died as a result of the shooting).
Counsel for the applicant submitted that the Tribunal “mischaracterised” this claim. She submitted that it was a claim relating to the applicant’s “Ndebele ethnicity” and the applicant was more likely to be imputed to hold the views of, or to be associated with, the secessionist movement, and thus be targeted, because of his Ndebele ethnicity.
In my view, this is not how the claim was put before the Tribunal. While I accept that it might be thought that a person who was not Ndebele would be unlikely to be imputed to agree with the aims of an Ndebele secessionist movement, the applicant’s claim does not directly relate to his ethnicity. His claim is directly based on his alleged “dealings”, “involvement”, some shared “ideological beliefs”, “views sympathetic …”, “conversations”, “hanging around”, and “talk” with the group Mthwakazi or its members in South Africa.
The applicant’s claim before the Tribunal can be fairly stated as a claim to have a well-founded fear of persecution by reason of imputed political opinion resulting from the applicant’s association with members of the party/group Mthwakazi in South Africa, notwithstanding his lack of membership of that party/group and his disagreement with its “position” (presumably its aim of secession of Matabeleland from Zimbabwe).
This integer of the applicant’s claim was not specifically or expressly addressed by the Tribunal. It is not in question that failure by the Tribunal to deal with such a claim can constitute jurisdictional error. Counsel for the first respondent submitted that, nevertheless, a factual premise of the claim was rejected or the specific claim was subsumed in adverse findings, including adverse credit findings, of greater generality, referring to the Full Court of the Federal Court decisions in NABE v Minister for Immigration and Multicultural Affairs[2] and Applicant WAEE v Minister for Immigration, Multiculturalism and Indigenous Affairs[3]. In NABE the Court said at [63]:
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):
‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’
[2] (2004) 144 FCR 1.
[3] (2003) 236 FCR 593, [47].
The Tribunal made a number of findings against the applicant. It found he was not politically active apart from during elections in 2008 in Zimbabwe ([67] of Reasons); that his claims of political activity in South Africa were “embellished” or “unconvincing” ([67] and [69] of Reasons); that the applicant did not engage in political activity in South Africa ([69] of Reasons); that the applicant is not of “any ongoing interest to political opponents of (sic – or) government agencies” ([77] of Reasons); that the applicant was not monitored in South Africa by Zimbabwean security ([79] of Reasons); and he had no ongoing interest in political activities should he return to Zimbabwe ([82] of Reasons).
Taken as a whole these findings are, at least, inconsistent with the applicant’s claim that he has a well-founded fear that he may be imputed to hold the political beliefs of the party/group Mthwakazi because of his association with its members while in South Africa. However, in my view the findings go further than inconsistency. The finding that the applicant’s claims about political activity in South Africa with the MDC were “embellished” or “unconvincing” is, in substance, is a finding that the applicant’s evidence about his activity in South Africa was not credible and was not probative. The finding that the applicant was not of any ongoing interest to the government or political opponents is a rejection of a premise of each of his claims, including his claim to have a well-founded fear of persecution because of a political belief imputed to him by the government or political opponents. For these reasons, I am satisfied that the Tribunal dealt with the substance of his claim and, further, that it rejected the premise of each of his claims relating to his claimed conduct in South Africa. This ground fails.
The application will be dismissed. The applicant is to pay the first respondent’s costs as agreed or taxed.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Dated: 3 February 2022
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