MZXTY v Minister for Immigration - [2008] FMCA 1196

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXTY v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1196

MIGRATION – Application for judicial review – consideration of Convention nexus – consideration of other alleged jurisdictional error – application dismissed.

Applicant:

MZXTY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 228 of 2008

Judgment of:

Burchardt FM

Hearing date:

11 July 2008

Date of last submission:

11 July 2008

Delivered at:

Melbourne

Delivered on:

2 September 2008

REPRESENTATION

Counsel for the Applicant:

Mr G. Gilbert

Solicitor for the Applicant:

Asylum Seeker Resource Centre

Counsel for the Respondents:

Mr R. Knowles

Solicitor for the Respondents:

Clayton Utz Lawyers

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 228 of 2008

MZXTY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) signed on 10 January 2008. This matter was heard contemporaneously with a very similar application in the matter MZXTX (MLG 227 of 2008) at the request of all parties.
Both of the Applicants were members of the Tanzanian boxing team at the Commonwealth Games in 2006 and, although there are some minor factual differences in their personal histories, it is clear that the applications raised identical issues. Counsel for the Applicant in this case (who also appeared for MZXTX) only made one set of submissions to cover both proceedings.
I have decided not to give one judgment. Notwithstanding the fact that there are separate judgments however, my process of reasoning is the same in each case and the decisions are close to identical in their terms.
For the reasons which follow I have come to the conclusion that the application must be dismissed.
The issues raised by the proceeding can be stated as follows:
a)Did the Tribunal find a Convention nexus in respect of the likely treatment of the Applicant upon possible return to Tanzania or did it not?
b)Did the Tribunal's alleged failure to consider what the arrest of the Applicant upon return to Tanzania would mean cause the Tribunal to fail to deal with the claim and thus fall into jurisdictional error?
c)In the alternative to (b), did the Tribunal have a duty to make further inquiries of its own, such that its failure to do so amounted to jurisdictional error?
d)Did the Tribunal misunderstand the real chance test?
e)Did the Tribunal fall into jurisdictional error by finding that the Applicant would only be the subject of questioning if he was arrested upon return to Tanzania in circumstances where there was no evidence to support that finding?
It should be noted that (c) above reflects a fourth ground raised by counsel on behalf of the Applicant at the commencement of the hearing.
I granted that leave to amend because it seemed to me that it was a matter that did not of its nature take the First Respondent by surprise, and because it was arguably open to argument on the grounds of application as filed in any event.

The Convention Nexus

Both counsel agreed that if the Tribunal as a matter of analysis was found by this Court to have disposed of the proceeding on the footing that the conduct likely to occur to the Applicants upon return to Tanzania was not the subject of a nexus with the Refugee Convention, then in the ultimate that would dispose entirely of the case.
At this point it is necessary to refer to the Tribunal's reasons for decision.
The Tribunal commenced by setting out details of the application and reciting the relevant law. The Tribunal then traversed claims and evidence (CB 174-176). The Tribunal categorised the Applicant's claims as follows:
“He fears persecution on return because he defected from the Tanzanian Commonwealth Games Team in Melbourne. He states that he has brought shame onto the country and newspapers and other media have indicated the displeasure of the authorities at his actions; he would thus be persecuted for the Convention reason of imputed political opinion as a member of a particular social group that being ‘athletes who have defected while representing their nation’
Further, the applicant claims that he fears persecution because he, as a prison officer, does not agree with the arbitrary use of force that is condoned and accepted by people employed in his position against prisoners and civilians.”
It should be noted that that characterisation of the claims has not itself been the subject of any criticism by the Applicant in this case.
The Tribunal went on to detail the claims and evidence summarised above.
The Applicant stated that he would be killed on return because he had defected from the team in Melbourne. He gave details of alleged harassment of his wife and parents.
The Tribunal's findings and reasons run from CB 176-182. The Tribunal's recorded country information (at CB 176-179) included that:
a)there were no reports of members of the armed forces or prison service being mistreated because of their opposition to government or prison service policies;
b)failed asylum seekers face no negative consequences upon return to Tanzania.
Further country information at CB 178-179 showed that:
a)it is hard to imagine on what grounds Tanzanians could be considered for refugee status, except possibly homosexuals;
b)while both the applicants were named in a BBC News article, a Tanzanian government minister is reported to have said that whilst the government was unhappy it was not embarrassed;
c)“the Head of Mission of the International Committee of the Red Cross reported that, "The applicants will most likely be arrested should they be returned to Tanzania, although they were unlikely to be treated 'inhumanely'." This was not (in his opinions and words) the Tanzanian government's style. He and other interlocutors pointed out that the issue was not, as far as the Tanzanian government was concerned, that they had sought asylum (the claim is regarded as merely opportunistic, rather than based on actual circumstances in Tanzania), but rather the public and highly embarrassing manner in which it was done”; and
d)armed forces or prison service members would not be mistreated because of their opposition to government, but a member of the armed forces would face disciplinary action if they disobeyed orders from superiors.
The Tribunal found that:
a)Tanzania does not interpret the defection as an expression of political opinion;
b)Even if the applicant were to be arrested, there was no evidence to indicate what this actually means or what the motivation for such an arrest would be;
c)The Tribunal did not accept that the applicant would be subjected to anything other than questioning; and
d)If the failure of the applicant to report back to his work was an offence in the paramilitary context of prison work, the punishment would not constitute persecution and would not be discriminatory as it would apply to those in the prison guard services as a whole and thus was not a matter which fell within the Refugees Convention (CB 180).
The Tribunal went on at CB 181 to find that the social grouping that the Applicant asserted he belonged to (persons who have defected) was not a particular social group in terms of the Convention.
The Tribunal went on to say:
“No other Convention reasons have been claimed or are apparent in the consideration of the defection of the applicant. Given that the Tribunal has found that no political opinion would be imputed to him for the defection, and that the applicant would not be persecuted for the Convention reason of a particular social group (given the absence of a particular social group in terms of the Convention), the Tribunal finds that the claims relating to the defection are not Convention related and therefore would not lead to a real chance to persecution for any Convention reason.”
The Tribunal went on at CB 181-182 to consider the Applicant's claim that he would be persecuted on return for reason of refusal to engage in acts of violence against prisoners and other innocent people.
The Tribunal did not accept the assertions made by the Applicant in this regard and went on to say:
“Given these findings it is not necessary for the Tribunal to consider whether the applicant would be persecuted as a member of the postulated particular social group” prison officers who oppose the oppressive practices of the security forces and prison officials”.”
The Tribunal went on to find that there was not a real chance that the Applicant would face persecution for any Convention reason should he return to Tanzania, and concluded (at CB 182) that it was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention.
Having set out these passages, which are relevant to some of the other issues live before the Court, it is quite plain that the Tribunal did not regard the matters of which the Applicant complained - other than the matter of being in a social group of refusenik prison personnel - to be capable of grounding a Convention nexus in any event. In respect of that latter point, the Tribunal simply disbelieved the Applicant.

The Tribunal's failure to consider what arrest would mean and the consequential failure of the Tribunal to deal with the claim

In my view, this aspect of the case can be dealt with relatively briefly. The Tribunal made a finding of fact at CB 165 that:
“The Tribunal has considered that the applicant might be questioned on re-entry about his defection, however because the Tribunal is of the view that the defection itself is seen as an attempt by the applicant to improve his life situation, it does not accept that the applicant would be subject to anything other than questioning”.
This finding followed immediately after the following passage:
“The arguments adduced in relation to the defection being seen as an expression of political opinion seem to hinge on the fact that it is thought that the applicant would be arrested. Even if that were the case, there is no evidence to indicate what this actually means or what the motivation for such an arrest would be.”
Those observations clearly flowed from the reports of the Head of Mission of the International Committee of the Red Cross to the effect that the Applicants will "most likely be arrested should they return to Tanzania", although they were unlikely to be treated "inhumanely". This was not (in his opinions and words) the Tanzanian government's style.
While the Tribunal has clearly referred to the Head of Mission's opinion, in my view the correct characterisation of the Tribunal's reasons for decision is that it simply made a finding of fact that the Applicant would be only subject to questioning. That was in my view a finding of fact for the Tribunal to make. In my opinion, the Tribunal considered exactly what arrest might mean and came to the conclusion which I have set out. It did not fail to deal with the claim and did not fall into error in this regard.

The alleged duty of the Tribunal to inquire

I accept that the Tribunal was not obliged to make further inquiries. Substantial inquiries had already been made by the Department and these had not produced an absolutely unequivocal outcome. There was nothing in the material provided by the head of mission of the International Committee of the Red Cross that suggested that any further answer would be either conclusive or quickly obtained.
The Tribunal is a body charged with arriving at an informal and expeditious resolution of the controversies before it. The matter and procedure it adopts to do so are quintessentially matters for it. The Tribunal did not, in my view, fall into any error by the manner in which it sought information and/or in this instance fail to seek further information in this case.

The misunderstanding of the real chance test

Counsel for the Applicant conceded this ground added nothing to the other grounds in the proceeding and it is not necessary to deal with it further.

The absence of evidence that the Applicants would only be questioned if they were the subject of detention upon return

I do not think that there was no evidence upon which the Tribunal could reach the conclusions that it did. There was evidence before the Tribunal that:
a)Although the Applicants would be most likely arrested if they returned, they would not be treated inhumanely;
b)One interlocutor stated that it was hard to imagine on what grounds Tanzanians could be considered for refugee status, except possibly homosexuals;
c)Failed asylum seekers face no negative consequences upon return to Tanzania; and
d)There was evidence that Post had not seen or heard of reports of members of the armed forces or prison service being mistreated because of their opposition to government.
In these circumstances, the Tribunal’s conclusion that any detention would involve only questioning was plainly open to it.

Conclusion

The Convention nexus ground has not been made out. As was conceded by the Applicant’s counsel that alone disposes of this proceeding. Nonetheless, I also find that none of the other grounds of the application have been made out. The application must therefore be dismissed with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Brooke Evans

Date: 2 September 2008