MZWYY v Minister for Immigration - [2006] FMCA 54

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWYY & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 54

MIGRATION – Protection Visa – whether jurisdictional error.

Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22
VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255
Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24
SCAM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 964
SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1022
SFXB v Minister for Immigration [2002] FMCA 296
SZADZ & Ors v Minister for Immigration [2003] FMCA 346

Applicants:

MZWYY, MZWYZ & MZWZA

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 381 of 2005

Judgment of:

McInnis FM

Hearing date:

20 December 2005

Delivered at:

Melbourne

Delivered on:

31 January 2006

REPRESENTATION

Counsel for the Applicants:

Mr J.R. Hamilton

Solicitors for the Applicants:

Goz Chambers Lawyers

Counsel for the Respondents:

Mr G. Gilbert

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Amended Application filed 9 August 2005 be dismissed.
The Applicants shall pay the First Respondent’s costs fixed in the sum of $6,500.00

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 381 of 2005

MZWYY, MZWYZ & MZWZA

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this application, the Applicants seek to rely upon an amended application filed on 9 August 2005 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 February 2005.
The principal Applicant is a male national of Kenya aged 35 years. The other Applicants are his wife and two children. The Applicant and his family arrived in Australia on 18 September 2001. He lodged an application for a protection visa on 28 September 2001 and provided with that application a statutory declaration in support together with country information. Only the First Applicant made claims that he satisfied the Refugee Convention. A delegate of the First Respondent refused the application on 29 January 2002.
An application for review of that decision was then made to the Tribunal. The Tribunal affirmed the decision of the delegate. However, following an application for review in the Federal Magistrates Court, the matter was remitted by consent to a differently constituted Tribunal for reconsideration. The Applicant's Migration Adviser made written submissions to the newly constituted Tribunal and enclosed further country information for the Tribunal's consideration. The Applicant attended a hearing before the Tribunal on 13 January 2005 and was assisted by his adviser.
As indicated, the decision currently the subject of the amended application is a decision of the Tribunal dated 28 February 2005, which affirmed the delegate's decision not to grant protection visas to the Applicants.
The relevant background material has been set out in some detail by the Tribunal under the heading "Claims and Evidence". The Tribunal recites the claims arising from the application, which include reference to the Applicant being an auto mechanic by trade who had worked in the auto industry for many years. The claims set out by the Tribunal are as follows:-
·He is a Kenyan national and was a member of the Muungano wa Mageuzi (movement for change) organisation.
·     Muungano wa Mageuzi is a “bi-partisan organisation designed to influence a political change in Kenya. Since assuming office in 1978 President Daniel Arap Moi, leader of Kenya African National Union (KANU), has used brutality and intimidation to oppose any move to remove him from power.
· Although the Constitution provides for freedom of speech and of the press, and peaceful political meeting, the government of President Arap Moi makes it unlawful for citizens to express their political opinion or organise political gatherings.
·     Since February 2001 protests, in which police brutalised members of Muungano wa Mageuzi during a public meeting, the police have devised a means of killing Muungano wa Mageuzi members by connecting them with armed robbery. In some cases police shot innocent Muungano wa Mageuzi members, dropped guns by their side and claimed that they (word missing?) during exchange of gunfire.
·     In July, police arrested and shot dead eight members of Muungano wa Mageuzi who were travelling on public transport.
·     I was arrested on two occasions, but was lucky to escape after my wife paid a large sum of money to the police officers. After the last arrest, the officer concerned warned me to leave the country immediately with my family.
·     I know for certain that I would have been killed if I'd stayed back in Kenya. Kenya is not safe for my family and me under the present government. Therefore we seek protection in Australia.”
In the Tribunal decision it is noted that reference is made to the claim by the Applicant that he was a volunteer security organiser in 2001 for the organisation Muungano wa Mageuzi (MwM). It is further noted that the Government of the then President Daniel Arap Moi considered this organisation to be a threat to his power. It was because of his involvement that the Applicant claimed he had been assaulted, arrested, detained and threatened by police.
The Tribunal made reference to written submissions filed for and on behalf of the Applicant by letter dated 10 February 2004 and 23 March 2004. In its decision, the Tribunal made some findings which are clearly favourable to the Applicant. After hearing the matter on

13 January 2004, it invited the Applicant to then provide any further information that he may have about fellow members of MwM since he left Kenya.
Reference was made at the hearing in response to those questions to the Applicant apparently speaking to a few of his colleagues who were not residing in Kenya but lived in Uganda, the United States and Tanzania. These were all security personnel like the Applicant. When asked by the Tribunal what they said to him, the Applicant replied that they just wanted to know how his life was.
Reference was made by the Tribunal to the Applicant of James Orengo, who is now with the State Democratic Party, and that MwM no longer exists. The reference to James Orengo was made in the context of that person previously, like the Applicant, being a member of MwM. The Tribunal stated to the Applicant that Orengo is still very operational and continues to be operating as a politician; and the Applicant, according to the Tribunal's decision, replied that, "The authorities would not dare touch a public figure."
The Tribunal then stated that there was no further country information suggesting that persons who had been members of MwM were in fear of persecution since the elections of 2002, which resulted in a complete change of Government in Kenya. It was put to the Applicant that there was no country information to suggest that if he returned to Kenya he would suffer persecution, as the party was now defunct. The Applicant replied to this that the same policemen are working there and some have been promoted. When asked why he thought they would wish to persecute him, the Applicant apparently replied that they just wished to get back at him as they are "really feeling bad, because Moi is out of power".
Further discussion occurred between the Tribunal and the Applicant concerning his exit from Kenya, and ultimately when asked if he wished to add anything the Applicant indicated a desire to provide further submissions to the Tribunal. The following appears in the Tribunal's decision:-
“I asked the applicant if he wished to add anything. He replied that he had nothing further to add. I asked the adviser if he wished to add anything to his previous submissions which were received by the Tribunal. He replied he wished to provide some further submissions to the Tribunal as it was his submission that persecution was still continuing of persons who have been in the applicant's position with the MwM. He requested further time to provide the relevant material. I informed the adviser that his further submissions should be provided to the Tribunal by close of business on 18 February 2005.”
Written submissions dated 17 February 2005 were received by the Tribunal from the Applicant on 18 February 2005. Significantly, the Tribunal makes reference to those submissions in the following paragraph:-
“On 18 February 2005 the Tribunal received by facsimile further written submissions from applicant’s advisor. The Advisor noted that the Tribunal “contended at the hearing that there was no evidence to support the applicant’s claim that members of the Muugano wa Mageuzi are being persecuted in Kenya. In other words that it is safe for the applicant and his family to return to Kenya because there is a change of government. We submit that such is not the case. As noted in our previous submission, “the applicant’s fear of persecution emanates from continues [sic] secret police brutality against members of Muungano wa Mageuzi because of their opposition to former President Daniel Arap Moi’s government. The persecution of Muungano wa Mageuzi members was initiated by the government of former President Moi who banned the organisation. Thereafter, the government used the Police and other law enforcement agencies to hunt down and persecute members of the organisation. It was in this process that the Applicant and members of the armed forces made enemies of each other. Police persecution of members of Muungano wa Mageuzi is reported by the Human Rights Watch World report 2001.” (emphasis added by Tribunal).
The advisor then stated that the Tribunal had referred to the US Department of State Reports in support of the Tribunal’s view that Country Information indicates that there is positive political change in Kenya. The advisor stated that a US Department of State Country report on Human Rights Practices 2003 details instances of the security forces, particularly the police continuing to commit unlawful killings, torture and beatings detainees. Reference is also made to journalists and civil society leaders being arrested and detained. The advisor went on to state that “The information further supports the applicant’s claim that as a person targeted in the past because of his political activities, his enemies would not have great difficulty in tracing him on return to Kenya. It is therefore submitted that the applicant faces a real chance of persecution should he return to Kenya under the control of the very members of the armed forces and his political enemies who are after his life”. The advisor stated in the conclusion, that the applicant comes within the definition of refugee. “Furthermore, the US Department of State’s reports that some victims of police killings died in suspicious circumstances, corroborates the applicant’s claim that people who are know or perceived to be involved in the removal of Daniel Arap Moi such as Muungano wa Mageuzi members are targeted by police.”
The advisor attached a Human Rights Watch World Report 2001 which referred to President Daniel Arap Moi continuing to block process in Kenya. The report refers to matters in Kenya at that time. Reference is made to President Moi banning country wide rallies called by Muungano wa Mageuzi. Also attached is a report from the UN office for the co-ordination of humanitarian affairs dated 18 February 2005 referring to Nairobi on 2 February 2005. The report referred to Kenyan lawyers reporting that human rights violations continued, “despite the government’s earlier pledges that it would strive to entrench respect for civil liberties. As part of its election platform, the new government promised to eliminate violations of human rights, which the previous government had not managed to bring under control, the Law Society of Kenya said in its 2004 Human Rights report.” The report also discussed the hesitation of the government in committing itself to the abolition of the death penalty even through Capital Punishment was last carried out in 1987. The report did not make any reference to President Moi or the Muungano wa Mageuzi Party (emphasis added by Tribunal).”
After receiving that information, the Tribunal then proceeded to highlight what had occurred in Kenya following the elections which had occurred on 27 December 2002 when new members of Parliament were voted into power. Reference was made to Commonwealth election observers declaring that the poll was "free, fair, peaceful and transparent". The election handed a landslide victory according to the Tribunal to Mwai Kibaki's NARC in both the Presidential and Parliamentary elections. In its findings, the Tribunal significantly states the following:-
“I am satisfied that the applicant was the victim of adverse police attention during 2001. I am satisfied that the applicant and his family departed Kenya because of a well-founded fear of persecution at that time. In his protection visa application dated 28 September 2001 he stated that Kenya is not safe for the applicant and his family “under the present government”.
I accept the applicant’s claims about what occurred in 2001 prior to his departure from Kenya. However, since President Moi lost the election in December 2002, I am satisfied that there has been substantial political change in Kenya such that former supporters of MwM will not be seen or treated adversely in the reasonably foreseeable future. I also note, and as was put to the applicant at the hearing, that the founder of MwM James Orengo MP, who was the victim of persecution on more than one occasion, remains in Kenya and is continuing an active political life which suggests that he is not in fear of any harm from the new government.
I note that in the written submissions provided on two occasions by the applicant’s advisor, he has not provided any independent Country Information (apart from the applicant’s assertions) to support the applicant’s claims that previous members of Muungano wa Mageuzi are currently being persecuted in Kenya. I am not satisfied that “in the circumstances the applicant would be faced with returning to the ranks of disenchanted members of the security forces who are still loyal to Arap Moi who will seek revenge against him”, if he returns to Kenya in the reasonably foreseeable future. I am not satisfied that there is more than a remote chance that the applicant will suffer harm in the reasonably foreseeable future. Accordingly, I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.”
It is clear from the above extract from the Tribunal's findings, when it refers to it being satisfied that the Applicant and his family departed Kenya "because of a well founded fear of persecution at that time" (emphasis added) that it had considered the position of the Applicant upon departing Kenya and also made reference to the lack of safety as stated by the Applicant in his application both for himself and his family "under the present Government".
However, in its decision the Tribunal refers to the founder of MwM as still remaining in Kenya and continuing an active political life, and further makes comment that submissions provided on two occasions by the Applicant's adviser did not result in the provision of any independent country information apart from the Applicant's assertions to support the Applicant's claims that previous members of MwM are currently being persecuted in Kenya.

The Amended Application

Although the amended application raises a number of grounds, it is apparent in the contentions filed for and on behalf of the Applicant and in submissions made before the Court by the Applicant's representative, that reliance is placed upon ground (5) which provides:-
“5. The RRT erred in law in that, given the RRT acceptance that "the applicant and his family departed Kenya because of a well‑founded fear of persecution" The Tribunal failed to take into consideration the applicant's subjective state of mind in considering whether he had a well founded fear of persecution were he returned to Kenya, and/or failed to record a finding In this area, and/or failed to considered whether conditions under the new regime, In themselves, or together with the applicant's subjective state of mind, could amount to persecution for a Convention reason.”[sic]

The Applicants Submissions

It was submitted on behalf of the Applicant that in this instance the Tribunal has failed to have regard to the Applicant's subjective state of mind, and in particular emphasis was placed upon the prospect of the Applicant returning to Kenya under the new regime. Reliance was placed upon the decision of Gaudron J in Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 (3 May 2001), (2001) 206 CLR 56, and in particular reference was made to paragraph 62 of her Honour's decision which provided as follows:-
“62. For the purposes of this case, it is necessary to note three important matters with respect to the Convention definition of "refugee". The first is that the Convention looks both to the position of the individual and to the conditions which pertain in the country of his or her nationality. More precisely, the question whether a person has a well-founded fear of persecution is one that has both subjective and objective elements and necessitates consideration of the mental and emotional state of the individual and, also, the objective facts relating to conditions in the country of his or her nationality[16].”
It was submitted in the present case that by not addressing itself to the subjective state of mind of the Applicant when assessing whether or not he comes within the Convention definition of "refugee", that the Tribunal has committed a jurisdictional error.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).

The Respondents Submissions

It was submitted on behalf of the Respondents that in this instance the Tribunal had noted that there had been a substantial political change in Kenya due to the election loss of President Arap Moi. It further analysed the role of the President in the suppression of MwM and referred to relevant country information. It was submitted on behalf of the Respondents that the contentions of the Applicant are without foundation.
It noted that reliance had been placed upon paragraph 62 and paragraph 70 of the judgment of Gaudron J in Miah before the Federal Court in SCAM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 964 (6 August 2002). In that case, Von Doussa J made reference to the decision of Gaudron J in Miah in the following passages:-
“19 The argument was developed by reference to the applicant's position. It was said that in his formative years his life experiences occurred in the context of fear and persecution by the Taliban. He found himself suddenly removed from the security of his family when he left with the smugglers because of increasing risk to his own safety. It was his first journey beyond his local geographic area. He had a frightening, dangerous trip to Australia. In Australia he has suffered loneliness and anxiety about his family and his future, and the view could have been taken by the Tribunal, had it considered the issue, that by reason of his experiences he could not accept that it would now be safe for him to return to Afghanistan. Counsel argued that on these facts, when properly analysed, the experiences of the applicant constituted the objective basis to well found his continuing fear which made him unwilling to return. In short, it was said that the Tribunal should have considered - and erred in an essential respect in not doing so - whether the applicant was now by reason of his past experiences too scared and anxious to return.
20 In support of this argument, which if correct could apply to a great number of asylum seekers, Counsel relied on the passages from the judgment of Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 (Miah) at [64] and [65] (Miah). Those passages do lend support to the argument, but greater support is to be found at [68] to [70] of that case and in the following passage in her Honour's judgment in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 415:
"The definition of `refugee' looks to the mental and emotional state of the applicant as well as to the objective facts. It is a commonplace, encapsulated in the expression `once bitten, twice shy', that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience. Although the definition requires that there be `well-founded fear' at the time of determination it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well-founded or otherwise without due regard being had to the applicant's own past experiences.
If an applicant relies on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality. To require more of an application for refugee status would, I think, be at odds with generally accepted views as to its application to persons who have suffered persecution ... [references omitted]."
21 In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 658 [150], Gummow J pointed out that Gaudron J's view in the above passage did not represent the view of the Court in Chan. In Miah at [69] Gaudron J acknowledged that fact but said:
"However nothing that was said in Chan or that has been said in subsequent cases suggests that what I said was wrong."
The statements of Gaudron J lend support to the applicant's case. The statements support the view that if the decision maker finds that past experiences engendered at the time in the applicant a well-founded fear of persecution for a Convention reason, and if the applicant has a genuine continuing fear of persecution were he to return to his country of nationality, then the Tribunal must go further and ask this question : Are the changed circumstances such that the fear of a reasonable person in the position of the applicant would be allayed? If the answer is no, then a continuing well-founded fear ought to be accepted.
22 It is established by the judgments of Mason CJ, Dawson, Toohey and McHugh JJ in Chan (at 389, 398, 406 and 429 respectively) that the definition of refugee in Article 1A(2) of the Refugees Convention involves mixed subjective and objective elements. Counsel for the respondent contended that it is clear from the principles emerging from these judgments that both the subjective and objective elements necessary to constitute a well-founded fear must be present at the time when the asylum seeker's claim for protection is determined - in this case at the date of the Tribunal's decision: see also Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288. Counsel relied in particular on the following statements in Chan.
…
26 In my opinion it is implicit in these passages that the real chance of persecution necessary to meet the objective element of the definition of refugee must be present at the time when the claim for refugee status is determined. I consider it follows that where the threat of persecution that caused an asylum seeker to hold a well-founded fear at the time of departure from the country of nationality has in the meantime evaporated, and the circumstances pertaining in the country have so changed that there is no longer a real chance that the asylum seeker would risk persecution for a Convention reason if he or she were to return, any persisting fear of persecution held by that asylum seeker does not have the objective quality of being well-founded.
27 I am unable to reconcile this interpretation with the view of Gaudron J in Chan and Miah referred to above. I consider that I am bound to follow the majority view expressed in Chan, and to decline to follow the view of Gaudron J.
28 The interpretation which I adopt is consistent with the objective of the Refugees Convention which is to provide protection from real risk of persecution. Moreover, the interpretation which I adopt gains support from a consideration of the structure of the definition in Article 1A(2) (set out at [16] above). The definition has two components: the first concerning the requirement that the refugee be outside the country of nationality, and the second concerning the inability or unwillingness of the refugee to avail himself of the protection of that country. The requirements of both limbs of the composite definition must be present at the time when the determination of refugee status is made under the Act. In the first limb the requirement of a well-founded fear of persecution will be met only when both the subjective and the objective elements that constitute a well-founded fear are present. The requirement in the second limb of the definition, in a case where the claim for protection is based on an unwillingness to avail himself of the protection of the country of his nationality, is an unwillingness "owing to such fear". "Such fear" is grammatically, a reference back to the well-founded fear referred to in the first limb of the definition, and the words impose the same requirement that there must then be present both the subjective and the objective elements that constitute the well-founded fear which satisfies the first limb.
29 This interpretation of Article 1A(2) is also supported by overseas authority. In Mileva v Canada (Minister of Employment and Immigration) (1991) 81 DLR (4^th) 244 the Federal Court of Appeal of Canada considered a case of an applicant for recognition of refugee status who came from Bulgaria. She made her claim on arrival in Canada on 18 December 1989, but before the claim was determined substantial political changes occurred in Bulgaria. The statutory provisions in the Immigration Act, RSC 1985 (Can) for relevant purposes closely reflect the definition of a refugee contained in Article 1A(2) of the Refugees Convention. Pratte JA, with whom Desjardins JA concurred, said at 248:
"The fact that the political situation existing in a claimant's country of origin has developed in such a way as to remove the reasons causing him to fear persecution is obviously a fact relevant to the question of whether that person can validly maintain that he is a Convention refugee. The question raised by a claim to refugee status is not whether the claimant had reason to fear persecution in the past, but rather whether he now, at the time his claim is being decided, has good grounds to fear persecution in the future."
And Marceau JA at 256 said:
" ... whatever the circumstances a person must be considered a refugee only if the fear of persecution which caused him to flee his country has continued to be objectively reasonable despite the political changes that have taken place in the meantime."
30 In the United Kingdom, the House of Lords in Adan v Secretary of State for the Home Department [1998] 2 All ER 453 (Adan), considered the application of Article 1A(2) of the Refugees Convention in the case of an asylum seeker who had fled from Somalia fearing persecution by the government for Convention reasons. Before his application was determined there was a change of regime in Somalia. The Secretary of State refused the application, and the matter found its way to the highest court where the Secretary of State's decision was upheld on the ground that it was necessary, under Article A1(2), for the applicant to have a current well-founded fear of persecution for a Convention reason, at the time when his claim was determined, in order to be recognised as a "refugee". Lord Slynn of Hadley said at 454 - 455:
"The first matter to be established under the article is that the claimant is outside the country of his nationality owing to a well-founded fear of persecution. That well-founded fear must, as I read it, exist at the time his claim for refugee status is to be determined; it is not sufficient as a matter of the ordinary meaning of the words of the article that he had such fear when he left his country but no longer has it. Since the second matter to be established, namely that the person `is unable or, owing to such fear, is unwilling to avail himself of the protection of that country' (art 1A(2)), clearly refers to an inability or unwillingness at the time his claim for refugee status is to be determined, it seems to me that the coherence of the scheme requires that the well-founded fear, the first matter to be established, is also a current fear. The existence of what has been called an historic fear is not sufficient in itself, though it may constitute important evidence to justify a claim of a current well-founded fear."
31 Lord Lloyd of Berwick (with whom Lord Goff of Chieveley, Lord Nolan and Lord Hope of Craighead agreed) referring to the second limb of the definition of "refugee" in Article 1A(2) said at 458:
" ... the starting point must be the language itself. The most striking feature is that it is expressed throughout in the present tense: `is outside', `is unable', `is unwilling'. Thus in order to bring himself within category (1) Mr Adan must show that he is (not was) unable to avail himself of the protection of his country. If one asks "protection against what?' the answer must surely be, or at least include, protection against persecution. Since `is unable' can only refer to current inability, one would expect that the persecution against which he needs protection is also current (or future) persecution. If he has no current fear of persecution it is not easy to see why he should need current protection against persecution, or why, indeed, protection is relevant at all.
But the point becomes even clearer when one looks at category (2), which includes a person who is (a) outside the country of his nationality owing to a well-founded fear of persecution, and (b) is unwilling, owing to such fear, to avail himself of the protection of that country. `Owing to such fear' in (b) means owing to well-founded fear of being persecuted for a convention reason. But `fear' in (b) can only refer to current fear, since the fear must be the cause of the asylum-seeker being unwilling now to avail himself of the protection of his country. If fear in (b) is confined to current fear, it would be odd if `owing to well-founded fear' in (a) were not also confined to current fear. The word must surely bear the same meaning in both halves of the sentence."
The criticism of Lord Lloyd's speech made in Khawar at [71] - [72] is not directed to the above passage. Whilst the precise point argued by the applicant in the present case was not raised by Adan, the passages I have referred to from their Lordships' speeches support the construction that I adopt. The conclusion that there must be, at the time of the determination of the status of the asylum seeker, an objective element arising from present circumstances in the country of nationality to constitute a well founded fear gains support from the following passage in The Law of Refugee Status (Toronto: Butterworths, 1991) by Professor James Hathaway at 68 - 69 which is cited by Lord Lloyd in Adan at 459 - 460:
In the Convention as ultimately adopted, therefore, persons determined to be refugees under earlier arrangements are not required to demonstrate a well-founded fear of being persecuted, and are not automatically subject to cessation of refugee status if conditions become safe in their homeland.
It was the intention of the drafters, however, that all other refugees should have to demonstrate `a present fear of persecution' in the sense that they `are or may in the future be deprived of the protection of their country of origin'. Thus, it was agreed that the first branch of the IRO test which focused on past persecution should be omitted in favour of the `well-founded fear of being persecuted' standard, involving evidence of a present or prospective risk in the country of origin. The use of the term `fear' was intended to emphasize the forward-looking nature of the test, and not to ground refugee status in an assessment of the refugee claimant's state of mind."
32 In the present case it is accepted that it was open to the Tribunal to find that the circumstances which founded the applicant's fears of persecution in Afghanistan have been removed by the changes which have happened since the applicant left, to the point where there is no longer a real chance that he would be persecuted for a Convention reason if he were to return. In my opinion it therefore follows that, at the date of the Tribunal's decision, there was not an objective basis for whatever continuing fear of persecution the applicant then held. Given the applicant's age and life experiences, that he remains fearful is understandable, but such a state of mind, does not quality as a well-founded fear within the meaning of Article 1A(2).”
It was submitted on behalf of the Respondent that, applying the decision of Von Doussa J in SCAM, the Court should not find that in this case the Tribunal has erred in determining the question of whether the Applicant had a well founded fear at the time of the Tribunal's decision in February 2005.
It was noted in passing that the approach of Von Doussa J in SCAM was also applied again in SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1022 (26 August 2002), which, although overturned on appeal, was not overturned on this point. That decision was applied by Barnes FM in SFXB v Minister for Immigration [2002] FMCA 296 (28 November 2002) at [22], and by Raphael FM in SZADZ & Ors v Minister for Immigration [2003] FMCA 346 (7 August 2003).
It was further noted that the view of Gaudron J in Chan was further disapproved of by Lee and Tamberlin JJ in WAHK v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 22, where their Honours state as follows:-
“[14] The relevant question is whether, as at 29 May 2002, the objective facts establish that the appellant had a well-founded fear of persecution. This is to be assessed on an objective basis, and not on the basis that the fear of a reasonable person in the position of the claimant would not be allayed by knowledge of subsequent changes in the country of nationality. The reference to a “well-founded fear” is a reference to the objective factual position at that time.”
It was argued that in this case, the question of whether there had been a substantial political change was a matter of fact for the Tribunal to determine. If the Tribunal found that this had occurred after the Applicant's departure from Kenya, which it did, the objective basis for his claimed fear could not be established as at the time of the decision. Even if the Applicant as it was argued continued to have a subjective fear, this was not enough to satisfy the dual requirements of the subjective/objective test.
It was argued the alleged failure to separately consider the question of subjective fear at the time of the decision was not therefore a failure of a kind that would constitute jurisdictional error. Such an inquiry or finding was unnecessary given the finding as to the substantial political change. It was further argued that failure to record a finding of whether the Applicant had or continued to have a subjective fear is of no consequence.

Reasoning

In my view, the submissions for and on behalf of the Respondent are correct, and the authorities referred to should be preferred over and above the view expressed and recited from Gaudron J in Miah. It is clear that other cases, including the decision of Von Doussa J in SCAM and the Federal Court decision applying that reasoning in WAHK, leads this Court to conclude that in this instance the Tribunal has considered the relevant information including all the submissions made for and on behalf of the Applicant in reaching a decision based on those submissions and available country information.
As to the nature of the change in Kenya, the Tribunal it has made an objective assessment of that change; and, having made that assessment in a manner which would lead to a conclusion that former members of the MwM are not at risk of persecution upon return to Kenya, the Tribunal was not then required to further consider the subjective fear of the Applicant. The claimed failure by the Applicant of the Tribunal's decision in not reaching a conclusion concerning the subjective state of mind of the Applicant does not on the authorities referred to by the Respondent in my view, provide a basis upon which the Court can conclude that there has been jurisdictional error.
Having made a considered decision reasonably open to it on the available material concerning the political change in Kenya since the departure of the Applicant, it is clear that the Tribunal did not then have to proceed to make a finding in relation to the claimed subjective fear of the Applicant. It follows therefore, for the reasons given, that the application should be dismissed with costs.

I certify that the preceding thirty (30 paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 31 January 2006