MZJAV v Minister for Immigration - [2004] FMCA 134

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZJAV v MINISTER FOR IMMIGRATION

[2004] FMCA 134

MIGRATION – Application for a protection visa – review of a decision of the Refugee Review Tribunal – whether the material and evidence before the Tribunal raised a case of political persecution – whether applicant afforded natural justice – no reviewable error disclosed – application dismissed.

Migration Act 1958 (Cth)
Migration Regulations 1994

Re Refugee Tribunal and Another; ex parte Aala (2000) 176 ALR 279
Kioa v West (1985) 159 CLR 550
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajahsingham [2000] 74 ALJR 405
R v Hickman; Ex prate Fox and Clinton (1945) 70 CLR 498

Applicant:

MZJAV

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 1112 of 2002

Delivered on:

12 March 2004

Delivered at:

Melbourne

Hearing date:

12 September 2003

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicant:

Mr Nicholas

Counsel for the Respondent:

Ms Riley

Solicitors for the Respondent:

Clayton Utz

ORDER

The application is dismissed.
The applicant pay the costs of the respondent as agreed and failing agreement application is to be made to the Court by telephone mention for a date as to the hearing and determination of the quantum of costs to be awarded.
It is certified that pursuant to Rule 21.15 of the Federal Magistrates Court Rules2001 this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1112 of 2002

MZJAV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This application together with applications against the Minister by applicants MZJAX and MZJAZ and MZKAA were all heard concurrently. This approach was agreed to by the parties.
The applicant was born on 26 September 1962 in the Democratic Republic of the Congo. On 19 July 2001 after departure from the Democratic Republic of Congo on a passport issued in this own name he entered Australia on a subclass 420 temporary resident visa obtained in Malaysia. On 23 August 2001 he lodged an application for a protection (class XA) visa. His claim was in essence that he faced a real chance of persecution in the Democratic Republic of the Congo for reason of his real or imputed political opinion. On 18 December 2001 a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 24 December 2001 an application was made to the Refugee Review Tribunal (“RRT”) for review of that decision. The tribunal affirmed the delegate’s decision on 30 August 2002. The decision was handed down on 4 October 2002.
The applicant filed an application in this Court on 1 November 2002. That application was amended by amended application filed 19 May 2003. Paragraphs 1.1 to 1.3 set out the grounds of the application wherein it is said by the applicant that the decision of the RRT was made without jurisdiction or is affected by jurisdictional error. Included in those grounds was an application that the RRT had breached s 424A of the Migration Act 1958 (Cth) (“the Act”). In addition the decision of the RRT was challenged by the applicant on the basis that the review was conducted and decision made in breach of the rules of natural justice and/or the duty to accord procedural fairness and that the satisfaction of the Tribunal under s 65 of the Act was based on findings or inferences of fact which were not supported by probative material or logical or rational grounds. Pro bono counsel has acted throughout on behalf of the applicant and the Court is grateful to counsel for the work undertaken by him. Likewise, considerable work has been undertaken by the respondent solicitors and counsel. The submissions made by counsel for the respondent I accept and her summation of the matters before the Tribunal have been adopted by me in these reasons as a result of their accuracy, detail and relevance.
Australia has protection obligations toward refugees. The definition is established by Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol as being a person who:
“owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
The source of power for granting or refusing a protection visa is section 65 of the Migration Act 1988. Criteria to be satisfied at the time of decisions are prescribed in the Migration Regulations 1994, Schedule 2 Point 866. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

Joint statutory declaration

The applicant arrived in Australia with five other men who were all members of a 15 person musical group known as the Congo Boys. The six men made a joint statutory declaration outlining their common histories which was submitted to the Department with their initial application. In it the following claims were made as succinctly set out in the respondent’s contentions of fact and law:
a)the six men fled the DRC to escape certain death at the hands of the government now controlled by Desire Kabila, son of the recently assassinated President Laurent Kabila;
b)the six men were members of ORFAZ, a musical unit within the army of the former President Mobutu;
c)when Mobutu’s regime was overthrown by Laurent Kabila, they were turned upon by the civilians; soldiers of Mobutu’s regime were beaten, burnt and killed in large numbers; the six men ran away from Kinshasa to places where the civilians did not know them;
d)Mobutu’s former soldiers were called upon to surrender their weapons and undergo military retraining at Kitona;
e)in early 1999, the applicant was contacted by those connected with the Kabila government who wanted to re-establish a musical group that could perform at government functions;
f)the Kabila government already had a musical unit but it wanted something more civilian looking;
g)the applicant recruited 15 former members of ORFAZ; the band played at a welcoming event on about 20 February 1999 with which the government was very pleased; the band members were then given uniforms;
h)the group were asked by senior staff from the Ministry of Culture to play again soon after and again in late 1999; they would also perform at local government functions and meetings;
i)in March 2000, the group went on tour to Congo Brazzaville for three weeks; they were approached there by some ex-Mobutu soldiers who talked about the terrible events in the DRC and then took the group to a party. At the party they were introduced to some soldiers who had held high rank under Mobutu. They said that they would be approached by someone when they went back to the DRC;
j)back in Kinshasa they were approached by a man who gave them the address of a meeting and US$20. The meeting was in a suburb of Kinshasa;
k)at the meeting on 5 April 2000, there were many people known to the band as ex-soldiers from the Mobutu time; people talked about welfare issues. The group attended a second meeting where they were given US$60 and a third where they were given US$250. At the third meeting the talked turned to being more critical of Kabila’s government;
l)at a meeting on 10 December 2000 they saw a person they recognised as Rashidi the bodyguard of President Kabila;
m)after that meeting the group was told there was a plan to get back into power and eliminate Kabila. The group was told that a mission was planned that involved them. They were told that the 15 members of the group would each be paid US$15,000 half now and half later. They were told to consider the proposal and come back in seven days;
n)the group met and decided to tell the police. Eight members of the group went to the police station on 12 December 2000. They each took $2000 as proof that they had been paid;
o)the commanding officer slapped the applicant and the police yelled at the eight members of the group. They were detained for seven days and tortured. When they were released on 19 December 2001 [sic], the eight lots of US$2000 were not returned to them;
p)the eight members of the group decided to leave the country. None of them stayed in their homes from then on. A Convocation dated 23 December 2000 was sent to their homes requiring them to report on 24 December 2000 to a police station;
q)after seeing the Convocation the eight members of the group went to the provinces. Whilst there they heard that President Kabila had been killed by Rashidi, his bodyguard, on 16 January 2001;
r)the person the group paid to arrange their departure from DRC told them their photographs were now everywhere around the capital;
s)six of the group came to Australia via Kenya where they arrived on 10 March 2001 and Malaysia.

Individual statutory declaration

The applicant also lodged an individual statutory declaration with his initial application. The applicant said in summary:
a)he volunteered for the army on 1 January 1986; after his initial training, he was selected for a musical unit; he was transferred to the special Presidential division; he was given an apartment and paid a wage;
b)on 16 May 1997, General Mayele was assassinated; the applicant left the military residence and went to a civilian area; however, he was recognised; after four days Kabila had gained power;
c)the applicant tried to return his guns but the soldiers said he must have more; they went to where the applicant was living and he was beaten and tortured; they sexually assaulted his sister-in-law; they took the applicant’s property and left him for dead;
d)later in May, the applicant left town but was identified by civilians; he was taken by soldiers and beaten with metal hooks; his left arm was badly injured;
e)he was imprisoned for three days; a former Mobutu soldier who had changed sides arranged for the applicant’s release on the basis that he was going to die anyway; his wound became infected; because of his injury, he was not forced to go to the Kintona army camp;
f)the applicant eventually recovered and began to farm; he was approached by people from the Ministry of Culture; he re-established the band.
The applicant also supplied a number of documents in support of his application.

The Refugee Review Tribunal hearing

The applicant was invited to attend a hearing before the Refugee Review Tribunal (RRT) on 27 March 2002 and the 18 June 2002. An interpreter was provided to assist the applicant. His legal adviser was present. Prior to that the applicant’s adviser had sent the Tribunal further documentation relating to the group’s activities in Malaysia and foreshadowed a further statement by the applicant. Under cover of a letter dated 24 March 2002 the applicant’s advisers supplied to the Tribunal a statutory declaration of MZJAX made on 23 March 2002 and a statutory declaration of the applicant made the same date.
The statutory declaration of the applicant asked that it be placed on the files of all six Congo Boys applicants. It said in summary that:
a)after being released from detention in December 2000, the eight members of the band went to a suburb called Mont Ngafula and stayed in a partly constructed house. They each tried to visit their families in the night; they all found out about the Convocations on 23 December 2000, except MZJAY who had not been visiting his home. MZJAY has not proceeded with his application;
b)the applicant suggested that they go to Bas Congo (in the provinces) where he had relatives. Someone else then persuaded them to try to go to the South Pacific; they all gave him their passports and some money; he went to Kinshasa and made contact with Kubanza, who arranged everything;
c)news came through on the radio on 17 January that President Kabila had been assassinated. Kubanza came to town and said Kabila had been killed by his bodyguard and the borders had been closed;
d)the applicant bought two blank DRC letterheads in Nairobi and the letter from the Ministry of Culture (a document produced by the applicant to the delegate and before the RRT) was typed and signed there;
e)the group eventually travelled to Malaysia and then Australia;
f)the applicant was aware that Mr Lumumba went to Malaysia at the behest of the African Information Network to assist the group with interpreting for the purposes of getting their entertainment visas; the applicant did not meet Mr Lumumba only MZJAX met him.
The statutory declaration of MZJAX also asked that it be placed on the files of each of the other applicants. MZJAX said that he and not the other members of the band had dealt with Mr Lumumba in Malaysia.
A hearing was conducted before the Tribunal constituted by Margaret Holmes on 27 March 2002 with a further hearing taking place on

18 June 2002 as stated in paragraph 8 hereof. At both hearings the applicant claimed that the band played in the presence of President Kabila five times. The Tribunal undertook to provide to the applicant an account of the evidence before it and relevant country information. These items were provided by the Tribunal under cover of letter dated 21 June 2002. The Tribunal also provided with that letter a list of “issues” arising from the material "to assist in the framing of further submissions." The issues identified by the Tribunal were essentially that:
a)country information showed that ordinary soldiers under Mobutu did not face continued risks;
b)it was implausible that members of a band that had only been in close proximity to President Kabila five times in the two years would be recruited for an assassination attempt;
c)the wanted notice produced by the applicant, being a poster showing photographs of 12 people including the applicant, was dated before the assassination of President Kabila; and
d)country information did not indicate that former soldiers would have difficulty obtaining a passport (as the applicant had claimed).
A further submission was lodged with the Tribunal on 31 July 2002. That further submission took no issue with the summary of evidence except to reiterate that the documents obtained by the applicant in Nairobi were bogus.
In relation to the issues identified by the Tribunal, the applicant submitted that:
a) the applicant’s injury was consistent with country information;
b)the people who approached the group may have seen them as at least a possibility and may have thought they had more contact with President Kabila than they actually did and the plotters might have had other plans as well;
c)his musician's identity card was manufactured by Kubanza. The wanted poster did not relate to the assassination but the failure of the group to answer the Convocation.
d)The applicant believed, as a former Mobutu soldier, that he would have been refused a passport. Objectively he may have been overly cautious.

Reasons of the Refugee Review Tribunal

The Tribunal accepted that the applicant had been an ORFAZ band member in President Mobutu's army for 11 years and that he was a member of the band when it was re-established under President Kabila's regime in early 1999. The Tribunal also accepted that between early 1999 and November 2000 the band played in the presence of President Kabila five times.
Otherwise the Tribunal considered the applicant's claims were implausible or over stated and used country information in assisting it in reaching that conclusion. Significantly the Tribunal did not find it credible that the applicant and his fellow band members who had played in President Kabila's presence only five times in the space of two years would have been asked to participate in a plot to kill him. The Tribunal did not accept that the band members would have been paid US$15,000 each when the plot was first mooted.
The Tribunal did not accept that eight members of the band went to the police station and were detained and mistreated. In any event the Tribunal found it implausible that people involved in a plot to assassinate the President would have been released from jail and then recalled by means of a Convocation rather than being arrested. The Tribunal was not satisfied that the Convocation or the wanted notice were genuine and did not accept that they indicated that the applicant was or is wanted by the authorities.
The Tribunal considered there was no credible evidence before it to indicate that the applicant would be suspected of any involvement in a plot to assassinate the President. As the Tribunal did not accept that the applicant was approached by anyone associated with such a plot it did not accept that there was a real chance that any such people would harm the applicant if he were to return.
The Tribunal considered the various events in Kenya and Malaysia were irrelevant. It did not accept that the applicant would have been unable to obtain a passport in the normal manner.
The Tribunal found to be overstated the earlier claims of the applicant dealing with the treatment of former Mobutu soldiers at the time President Kabila came to power in 1997. The Tribunal found it implausible that the new regime would have been so concerned about a former army musician to have treated him as he claimed. The Tribunal did not accept that the applicant was detained for three days shortly after President Kabila came to power. The Tribunal concluded that the applicant did not face a real chance of persecution in the DRC for his real or imputed political opinion or for any other Convention reason.

Consideration

The applicant contended that the rules of natural justice and/or the duty to accord procedural fairness were breached and/or not accorded to the applicant in five respects. Firstly the applicant contends the Tribunal did not give the applicant notice of matters or issues adverse to his interests which the Tribunal proposed to, and did take into account, in conducting the review and/or making the decision. The applicant claimed the Tribunal did not in particular give him notice of two matters that it took into account, both matters concerning the events immediately after the fall of Mobutu.
I reject this submission. The Tribunal did notify the applicant of the matters with which it was concerned in paragraph 1 of its “issues” paper. That paragraph did give a summary of country information to the effect that ordinary soldiers under Mobutu did not face sustained problems after President Kabila gained power. The Tribunal's conclusion in relation to these matters was that the applicant's claim concerning the position of former Mobutu soldiers in general was overstated and in relation to his personal experience was “implausible”. These conclusions were clearly encompassed within paragraph 1 of the “issues” paper.
In relation to the general contention of the applicant I note there is no requirement that the Tribunal give an applicant notice of every possible adverse finding. In re Refugee Tribunal and Another; ex parte Aala (2000) 176 ALR 219 Gaudron and Gummow JJ said at 76:
There is no universal proposition that before the Tribunal ever makes a finding adverse to an applicant, it is necessary for the Tribunal to put to the applicant the concerns which are inclining the Tribunal towards such an adverse finding .. the requirement of procedural fairness did not require the Tribunal .. to treat .. (the hearing before it) 'as though it were a trial in a court of law.'

In Kioa v West (1985) 159 CLR 550 at 587 Mason J said that an applicant for an entry permit:
Is entitled to support his application with such information and material as he thinks appropriate, and he cannot complain if the authorities do not accept, without further notice to him, what he puts forward.
Mason J in Kioa v West then went on to identify two possible exceptions - one was information personal to the applicant obtained from a source other than the applicant and the other was the “critical issue” on which the decision turned. Neither of those exceptions applied in this case. The information the Tribunal relied upon was not personal to the applicant and the matters the applicant has raised were not the critical issue on which the decision turned.
The critical factor in this case was that the Tribunal did not accept the pivotal claim made by the applicant. The pivotal claim was that members of the band were approached by ex-Mobutu soldiers to assassinate President Kabila. The Tribunal found it implausible that the band would have been approached as alleged.
The Tribunal is under no obligation to notify an applicant that it finds his claims implausible. A finding of implausibility is part of the evaluation of the material before the Tribunal rather than information of a type which may need to be disclosed. In Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 Merkel J, said at 63:
In general, a decision-maker .. is not under an obligation to inform a party of his or her evaluative conclusions on the material upon which the decision-maker proposed to act.
A finding that the applicant's claims were implausible was an obvious possibility on the material and evidence before the Tribunal. The adverse findings of the Tribunal related to its evaluation of the material before it and which was open to it and nothing further needed to be drawn to the applicant’s particular attention.
The Tribunal provided the applicant with two hearings and an opportunity to respond to certain matters which the Tribunal required clarification as to. It was a matter for the applicant to put such information as he wished before the Tribunal. I reject the submission that the Tribunal mislead the applicant in any way in its matters raised in the “issues” paper. Further, the applicant does not argue that he would have done something differently had he not been misled as claimed, and that it might arguably have produced a different outcome.
The applicant submitted that the Tribunal further breached the rules of natural justice by not disclosing an allegation made by a third party in a telephone call to the effect that the applicant’s claims were not true. The Tribunal referred to this call in its decision and said that it had not taken the allegation into account. The telephone call was taken by a departmental officer and the details of the call were recorded by her in an email addressed to some other departmental officers.
There are circumstances in which adverse information obtained from a third party must be disclosed to an applicant and his comments sought. In Kioa v West (1985) 159 CLR 550, at 629, Brennan J said:
“in the ordinary case, where no problem of confidentially arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.”
In this case, there was a problem of confidentiality. The information was given on a confidential basis. Moreover, the information could not be described as credible. It simply said that the applicant’s claims were not true. It provided no detail about any particular aspects of the claims that were not true. It was a bare, unsubstantiated assertion. The information could not described as significant to the decision to be made. The claims did not add anything to the Tribunal’s decision-making process. Thus, I find the information did not call for disclosure and an opportunity to respond in the sense referred to by Brennan J in Kioa.
The applicant submits the Tribunal, constituted by Margaret Holmes, heard four of the Congo Boys matters and inevitably took into account in this matter evidence given in the other hearings. The applicant says that the Tribunal should have been constituted differently to conduct each review or should have disclosed to the applicant relevant evidence from the other applicants.
The applicant has pointed to no evidence that was relied on in this case that was derived from the hearing in the other cases, much less any such evidence that was not disclosed to the applicant – save the evidence of MZJAX in the statutory declaration of 23 Mach 2002 which the applicant requested be taken into account.
The Tribunal’s decision itself contains no reference to any evidence derived from any other proceeding save any evidence included at the request of the applicant. The applicant’s complaint is, I find, unsubstantiated.
It was open to the Tribunal to not be persuaded by the evidence the applicant put forward. Conclusions about credibility are a matter for the decision-maker in any event: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajahsingham [2000] 74 ALJR 405.
The applicant claimed there was no probative material before the Tribunal to the effect that other people had frequent access to President Kabila. That is no so. Country information referred to a number of people who, it would be readily inferred, had frequent access to the President. There is included a reference to Rashidi whom it was said carried out the assassination.
The Tribunal carefully examined all the material and evidence before it and made findings on all the material questions of fact raised by that material and evidence. The Tribunal gave to the applicant an opportunity to address concerns it had as to his credibility and evidence. It cannot be said the applicant was misled by the Tribunal. No denial of natural justice or jurisdictional error has been established. The decision is a privative clause decision. It has not been suggested that there has been a failure to satisfy any of the so-called Hickman provisos. The application must be dismissed.

I certify that the preceding thirty-eight (38) are a true copy of the reasons for judgment of Hartnett FM

Associate: T. Jones

Date: 12 March 2004