MZYCY v Minister for Immigration & Anor - [2009] FMCA 657

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYCY v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 657

MIGRATION – Alleged jurisdictional error – consideration of whether Tribunal imposed onus of proof, asked itself wrong question or made findings unsupported by evidence.

Migration Act 1958, s.91R(3)

Abebe v the Commonwealth of Australia (1999) 197 CLR 510

Applicant:

MZYCY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1589 of 2008

Judgment of:

Burchardt FM

Hearing date:

4 June 2009

Date of Last Submission:

4 June 2009

Delivered at:

Melbourne

Delivered on:

13 August 2009

REPRESENTATION

Counsel for the Applicant:

Ms N. Karapanagiotidis

Solicitors for the Applicant:

Asylum Seekers Resource Centre

Counsel for the Respondents:

Ms S.A. Burchell

Solicitors for the Respondents:

Clayton Utz Lawyers

ORDERS

The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1589 of 2008

MZYCY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) on 4 December 2008.
By an amended application filed on 16 March 2009, the applicant puts forward the following grounds in support of his claim:
a)The Tribunal imposed an evidentiary onus of proof on the applicant by requiring that his claims be corroborated;
b)The Tribunal asked itself a wrong question, relied on irrelevant material or ignored relevant material and in particular asked itself the wrong question, namely, whether torture in Egypt was rife and whether it needed to be found to be rife before it could be accepted or considered plausible;
c)The Tribunal misconstrued s.91R(3) of the Migration Act 1958 (“The Act”) and/or failed to consider the applicant's sur place claim;
d)The Tribunal made findings for which there was a lack of supporting evidence and/or failed to consider other relevant evidence before it in relation to
i)the applicant's claims as to torture and detention;
ii)the applicant's circumstances of departure from Egypt.
For the reasons that follow, I do not think any of these grounds are made out and the application must be dismissed.

Introductory facts

It is common cause that the applicant is a citizen of Egypt born on 22 June 1974. He is of Nubian ethnicity.
He arrived in Australia on 14 September 2003 on a visitor visa and lodged an application for a protection visa on 29 October 2007.
In addition to this claim based upon the matters said to have occurred in Egypt, the applicant also has a sur place claim arising out of an article he wrote in The Migrant magazine in 2008.

The onus of proof point

In oral submissions counsel for the applicant submitted that the reasons of the Tribunal needed to be read as a whole and, if this were done, it was clear that despite denying doing so, it had imposed upon the applicant the burden of meeting an onus of proof.
It is common cause that it is not appropriate for there to be a burden of proof in cases of this sort (Abebe v the Commonwealth of Australia (1999) 197 CLR 510).
It was submitted that the Tribunal had explicitly or implicitly required the applicant to have independent corroboration of his claims in circumstances where that was not required.
The central issue in the facts asserted by the applicant was his participation in the Nubian organisation called Onati. The various misfortunes that the applicant said he had experienced all flowed from his alleged membership of and participation in the activities of that organisation.
The Tribunal did not believe the applicant's assertions in this regard and came to the conclusion that Onati did not even exist.
Once this conclusion was reached, it was inevitable that this would, at the very least, cast considerable doubt on a number of the applicant's other factual assertions.
The Tribunal's reasons in respect of this aspect of the matter are set out at paragraphs 92 to 99 of the reasons for decision (CB 256-258).
I would paraphrase those reasons as follows:
a)The applicant claimed that the reason there was no information available to support Onati's claimed existence is that it must work underground in the Egyptian political climate and that information on Onati was deliberately restricted to protect members against persecution by Egyptian intelligence services.
b)
The Tribunal found that if Onati was a cause of concern for both the Sudanese and Egyptian authorities and they were monitoring it, it did not accept there would be no reference to it anywhere in the information available to the Tribunal or the Department.

The Tribunal pointed out that apart from the applicant's own assertions, there was no reference to Onati in any of the areas of research that the Tribunal had reviewed. The Tribunal pointed out that its review was very wide-ranging.
c)If Onati existed and intended to remain secret, the Tribunal found that on the applicant's evidence, the secrecy had in any event been lost. On the applicant's version of the evidence, the Egyptian and Sudanese authorities knew enough about the organisation to persecute the applicant.
d)The applicant's own evidence was that he handed out flyers to non‑members to promote Onati's aims which appeared inconsistent with an organisation attempting to maintain secrecy.
e)Candidates supporting Nubian land rights had run in Egyptian elections as was apparent in country information contained in a Refugee Review Tribunal decision of 2006. That Refugee Review Tribunal country information did not seem to the Tribunal to suggest state intolerance of Nubian political activities.
In the light of all these matters, which I have only attempted to paraphrase rather than reproduce in full, the Tribunal concluded that Onati did not exist at all. The Tribunal said at paragraph 88 (CB 257):
“I therefore reject the claim that the applicant has "a profile" because he has actively advocated for Nubian rights as a member of Onati.”
The Tribunal went on to say at paragraph 99:
“It follows, therefore, that I give very little weight to the flyers submitted by the applicant and note, also, that in any event there was nothing in the materials submitted by the applicant that would lead me to have any confidence in their provenance.”
I confess that while the Tribunal's observations as to the lack of any material about the provenance of the flyers seems to be correct, I would myself, if confronted with those documents, have formed the view that they appear on their face to be genuine documents rather than, as one would otherwise have necessarily to infer, some sort of sham or false documentation.
Nonetheless, the Tribunal's line of reasoning about the existence of Onati was in my view clearly open to it. Even if Onati did exist at the relevant time, there were significant inconsistencies in the applicant's evidence about it (most obviously that it was an organisation determined to remain secret but at the same time was handing out flyers), and the evidence to which the Tribunal referred about the involvement of parties sympathetic to the Nubian cause and Egyptian politics was clearly of significance.
Likewise, the Tribunal was entitled to rely upon the evidence of the absence of any reference whatever, anywhere, to Onati other than in the applicant's own assertions and in the flyers, which the Tribunal effectively was not satisfied proved anything.
Findings on the evidence are pre-eminently the responsibility of the Tribunal. The Tribunal in evaluating the evidence in this regard did not misconceive its task, did not in my view ignore relevant evidence or rely upon irrelevant evidence. It was certainly not a decision that could be said to give rise to the application of Wednesbury principles.
Accordingly, I accept the Tribunal did not fall into error in making a finding that Onati did not exist.
Once that finding is made, it is clear that the Tribunal was not in error in concluding that the applicant did not suffer persecution as a result of his membership of the organisation that did not exist.
There were three other sub-parts of the evidence addressed in oral submissions which were said to give rise to the total picture of the way in which it was asserted the Tribunal dealt with the evidence and imposed an onus of proof on the applicant.
The first was the Tribunal's treatment of the applicant's allegations about what happened to his mother.
At paragraph 111, (CB 262), the Tribunal said the following:
“He claimed that his mother had been detained and treated in a manner that caused her to die, albeit following her release.

The applicant provided no evidence of this, such as a death certificate. On his own evidence, his mother had been released and had been admitted to a hospital. In that case, there would be no reason why the applicant should not be able to obtain a death certificate or some other form of evidence relating to this claimed hospitalisation. Furthermore, given my findings about the applicant's other claims, including in relation to the existence of Onati and the treatment of Nubians, I query the applicant's credibility and I consider his claim to have been made with a view to supporting his protection claims and I do not accept it.”
It will be seen that the Tribunal's rejection of the assertions made about the applicant's mother flowed in part from the lack of documentation which the Tribunal thought should reasonably have been available, and in part from the overarching credibility finding that the Tribunal had made in relation to the critical issue of the existence of Onati, together with the finding about the treatment of Nubians generally.
The Tribunal, having made a finding of lack of credit on the part of the applicant, is entitled to bear that credit finding in mind in considering other claims. After all, the existence of Onati and the applicant's purported involvement with it stood, as I have said, at the absolute heart of the applicant's claims.
I do not think that in making the observation the Tribunal did make about the lack of available documentation from hospitals and the like, the Tribunal did more than draw a conclusion that was open to it on the materials.
The next matter raised in this regard was the question of the way in which the Tribunal dealt with the applicant's torture claims.

The reasons for judgment are set out at paragraphs 133 – 142

(CB 268). Taking those reasons as a whole, it is clear that the Tribunal simply did not believe the applicant. The Tribunal did say:
“There was no evidence, other than the applicant's oral evidence, which I do not accept, to support these claims.”
Nonetheless, the Tribunal made the following findings:
a)the Tribunal did not accept that if such torture was carried out against Nubian activists in Egypt it would not be known, given the considerable amount of publicly available material concerning Nubians and their cause;
b)the evidence did not indicate to the Tribunal that the Egyptian government saw the Nubian movement as a serious threat to it, nor indeed did the evidence support the proposition that it was;
c)the idea that the applicant would be subjected to such extreme torture in circumstances where there was only a suspicion he was involved in Onati activities would appear to indicate that the authorities (if this were true) resorted to torture quite readily; if that were the case, the Tribunal would have expected that there would be more information available to support this type of torture but there was not any such evidence;
d)the fact that the applicant was released to local police and was held at an official facility mitigated against the proposition that there had been a detention by rogue officers;
e)a legal search warrant to search the applicant’s house was executed while the applicant was under suspicion but a copy of the warrant had not been provided and it was incongruous that the authorities would obtain a warrant if they were otherwise acting so unlawfully as to torture him;
f)the applicant's claims of torture were inconsistent with the fact that he was able easily to leave Egypt.
In light of these findings the Tribunal's treatment of the torture issue does not seem to me to indicate jurisdictional error.
I note further that the Tribunal said in any event, paragraph 141

(CB 270):
“I noted above that I do not consider there to be any real doubt that the claimed events put forward by the applicant did not occur. However, in case others were to view the matter differently, and the applicant was detained and tortured as claimed, it is appropriate that I consider whether the claims would give rise to a well‑founded fear of persecution for a Convention reason. In this regard, given my findings that Onati does not exist, I would not be satisfied that the applicant's treatment was due to his claimed political profile or his race or nationality. On the applicant's evidence, he was detained following his forcible return from Sudan where he was found in the company of a group that aims to use violence to pursue its objectives.”
Thus the Tribunal found in the alternative that if it was wrong about the issue of torture, the applicant was tortured because he had consorted with a group in Sudan that was seeking to impose change by violence rather than because of his race or because of the claimed political profile he said he had.
The final issue the applicant raised was that of the Tribunal's treatment of country information. It was put that at paragraphs 115 and 117 the Tribunal had in effect required corroboration on the part of the applicant of his claims and similarly at paragraph 121.
I accept that the Tribunal did make criticism of some of the country information put forward, but that does not gainsay the fact that the Tribunal referred to other country information which seems to me to support its conclusions (see paragraphs 125–131, CB 266-268).
Taken as a whole, the Tribunal's reasons do not seem to me to indicate that the Tribunal imposed an onus of proof on the applicant.

Wrong question

It was put that the Tribunal fell into jurisdictional error by analysing the question before it as whether or not torture was rife in Egypt.
This was of course part of its consideration of the country information generally.
It was put that the Tribunal's conclusion at paragraph 138 (CB 269) was entirely speculative.
In my view, the short answer to this issue is that contended for by counsel for the first respondent. The Tribunal dealt with the issue as to whether torture was rife in Egypt simply because that was an issue raised by the applicant. The way in which the Tribunal did so, in my view, was entirely appropriate and its conclusions at paragraph 118 (CB 264) involve findings of fact open to it. Given that the Tribunal found that the applicant was never detained by the authorities, it was correct for the Tribunal to say that the prevalence or otherwise of torture was as an issue “somewhat academic”.

The sur place claim – section 91R(3)

Counsel for the applicant conceded that it was for the applicant to convince the Tribunal that the article written in The Migrant magazine was not written with a view to bolstering the claims for a protection visa.
The criticism made here was that the applicant's description as to why he wrote the article and his explanations in his statutory declaration, (CB 158) was simply not addressed.
The difficulty in part here is that when one looks at what the Tribunal asked the applicant (paragraph 72 - CB 252), the applicant's answer to the question why he wrote the article was:
“What do you think my reaction would be if he killed my mother and I knew? He said that he had two choices - depression or aggression, or to answer the government in a respected way and to tell them that he is still here and still alive.
I asked whether, given that he did not have a visa to remain in Australia and may face returning to Egypt, he considered it a risk to write this article. The applicant said that the Egyptian government knows where he is and knows that he applied for refugee status in Australia. I asked how the government would know that he wrote this article. The applicant said that the internet makes the world a small village.”
At paragraph 150 of its reasons, the Tribunal said (CB 273):
“Given my findings that the applicant is not a member of the Onati organisation, or any other organisation pursuing Nubian causes, and that he did not experience the persecution he claims to have, it seems to me that the applicant wrote that article to bolster his claims in his application for a protection visa. Accordingly, I must disregard this conduct in accordance with section 91R(3) of the Act as I am not satisfied that he engaged in this conduct otherwise than for the purpose of strengthening his refugee claims.”
The Tribunal plainly just did not accept the applicant's explanation as to why he wrote the article and that rejection was a finding of fact open to the Tribunal to make which does not reveal jurisdictional error.

Lack of evidence for the findings in relation to torture and failure to take into account the evidence of the applicant's brother's assistance and his leaving Egypt

I have, I believe, already traversed these matters in the light of the other issues discussed above. As counsel for the first respondent pointed out, the Tribunal, in my view, correctly drew attention to the inconsistency of the applicant's assertion that he was under constant surveillance with the relative ease with which he was able to leave Egypt.
Once the Tribunal reached that conclusion, it was not incumbent upon the Tribunal to deal with each and every assertion advanced by the applicant as to his brother and the way in which he left the country.

Conclusion

For the reasons set out above, I have formed the view that none of the criticisms of the Tribunal's decision are made out and it follows that the application must be dismissed with costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B Evans

Date: 13 August 2009