MZYEI v Minister for Immigration

Case •

[2009] FMCA 1066

•

13 November 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYEI v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1066
MIGRATION – Past membership of criminal organisation – whether raises threat of persecution – whether applicant a “suspected member” of Mungiki – extension of time.
Migration Act 1958 (Cth), ss.65, 414, 474, 477
Acts Interpretation Act 1901, s.36(1)
SZKPD v Minister for Immigration and Citizenship KSD 1090/2007
Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567
Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275
Luu & Anor v Renevier (1989) 91 ALR 39
Rhandawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389
Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402
Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’)
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620
Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167
Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) KB 223
Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Minister for Immigration and Multicultural and Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73
Welivita v Minister [1996] 989 FCA 1
Cabal v Minister for Immigration and Multicultural Affairs [2000] FCA 1806
Applicant: MZYEI
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: MLG 526 of 2009
Judgment of: Turner FM
Hearing date: 5 October 2009
Date of Last Submission: 5 October 2009
Delivered at: Melbourne
Delivered on: 13 November 2009

REPRESENTATION

Counsel for the Applicant: Mr Gibson
Solicitors for the Applicant: Goz Chambers Lawyers
Counsel for the Respondents: Ms Hamnett
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. That the application filed on 7 May 2009 and the amended application filed on 28 May 2009 are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 526 of 2009

MZYEI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. The applicant has been refused a Protection (Class XA) Visa and seeks judicial review of that decision.

  2. The main issues relevant to that review are:

    ·Whether the applicant claimed to be a suspected member of Mungiki

    ·Whether Tribunal failed to deal with an integer of the claims

  3. These issues are extracted from the grounds in the application and amended application and from the submissions.

  4. The grounds in these applications are as follows.

The application

(1)The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse the application and its powers to conduct a review under s414 of the Act. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction:

Particulars

(i)It misunderstood and/or misconstrued the Convention test of well-founded fear of persecution on the ground of membership of a particular social group being Mungiki in the light of the Tribunal’s findings that he had been a member of Mungiki but had not been involved in criminal activities and the uncontradicted evidence that suspected members of Mungiki faced arrest, excessive force and extrajudicial killing

(ii)It misunderstood the distinction between persecution for Convention reasons and prosecution.

The amended application

DECISION DETAILS The decision of the Refugee Review Tribunal that is the subject of this application which affirmed the decision not to grant the applicant a protection visa (Class XA) was made on 31 March 2009.

THE APPLICANT WAS NOTIFIED of the decision by letter faxed to his representatives on 1 April 2009 which was in turn posted to the Applicant on 3 April 2009. As he was interstate he did not read the letter until 19 April 2009. The contents of the decision were thus communicated to him on 19 April 2009.

TIME LIMIT FOR APPLICATION The Applicant applies for an order that the time for making the application be extended pursuant to section 477 of the Migration Act 1958.

  1. Section 477 of the Migration Act 1958 (the “Act”) provides that an application to the Court…must be made within 35 days of the date of the migration decision.

    The decision is dated 31 March 2009 (Court Book 124). The application was filed on 7 May 2009.

  2. The 35 days is to be reckoned exclusive of the date of the decision s.36(1) of the Acts Interpretation Act 1901. The last day for making the application was therefore 5 May 2009. The application was made on


    7 May 2009. It is therefore two days out of time.

  3. The Court may extend the 35 day period as it considers appropriate, if:

    a)An application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

    b)The Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

  4. Relevant considerations as to whether time should be extended are:

    ·Whether the application to the Court had any prospect of success or whether it was free from jurisdictional error?

    ·Whether the late application arose from the actions of his representatives?

    ·Whether the parties agree to the application being made out of time? SZKPD v Minister for Immigration and Citizenship KSD 1090/2007. per Justice Branson

  5. By order of Registrar Allaway on 29 June 2009 the time for filing was extended to 7 May 2009.

Grounds in the application

  1. Ground one Particular one claims that the Tribunal “misunderstood and/or misconstrued the Convention test of well-founded fear of persecution on the ground of membership of a particular social group being Mungiki.”

  2. The Tribunal made the following findings of fact, which are not open to review:

    ·The applicant was a national from Kenya and has an association with the group Mungiki. (Court Book 130.9)

    ·It did not accept that the applicant would face any real harm from the Kenyan Government or police

    ·as past membership of the Mungiki would not be grounds for arrest, even though the group is regarded as a criminal organisation. (Court Book 131.4)

    ·as the police were not interested in the applicant as a Mungiki, when he reported that goods had been stolen from his house. (Court Book 131.5)

    ·

    as the applicant did not appear to have been involved in any criminal activities associated with the Mungiki.


    (Court Book 131.6)

    ·as the Governments’ crackdown is on Mungiki members who are involved in criminal activities. (Court Book 131.10)

    ·as the applicant is not involved in criminal activities.

    ·The Tribunal found that the Government would be expected to offer the applicant protection from the Mungiki given that it is a declared criminal organisation. (Court Book 131.10)

  3. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:

    “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

  4. The Tribunal did not accept that the applicant would face any real harm from the Mungiki as no plausible evidence was presented to show this.

    The Court refers to the following authorities:

    “However, the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for reasons of political opinion. It remains for the minister in the first place to be “satisfied” and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out”: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596.

    “The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).”

    “Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451.”

    As stated in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70: “It is no part of the duty of the decision-maker to make the applicant’s case for him [or her]”.

  5. The other reasons for the Tribunal finding that the applicant would not face any real harm from the Mungiki are that:

    ·The applicant did not hold a leading role in the organisation (Court Book 131.6)

    ·

    The applicant could be regarded as a lapsed member and not a defector as he had not actively opposed the group


    (Court Book 131.8)

    ·

    There is no evidence that former members of the Mungiki are punished by the group for being lapsed members


    (Court Book 131.8)

  6. The Tribunal referred to the delay between the applicant’s arrival in Australia in July 2005 and his application received on 12 September 2008 (Court Book 1), as indicating that the applicant had no subjective fear of persecution (Court Book 132.2). The Tribunal referred to the decision of Justice Heerey in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 as follows:

    “The applicant complained of the Tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution…”
    (Court Book 132.4)

  7. The Tribunal considered the applicants claim of persecution for membership of a particular social group, on the basis of his past membership of the group.

    Given that the applicant claimed that he feared the Government because he was a former Mungiki member (Court Book 129.9) and that he feared the Mungiki because he had been a member and was no longer active (Court Book 129.9), that was the appropriate way for the Tribunal to consider the claim. The applicant made no specific claim of “suspected membership.”

  8. It has not been shown that the Tribunal “misunderstood and/or misconstrued the Convention test of well-founded fear of persecution on the ground of membership of a particular social group being Mungiki.”

  9. The Tribunal’s finding that the applicant would not face any real harm from the Government or from Mungiki is supported by the finding that country information indicates that the Government declared Mungiki to be a criminal organisation and is targeting members or suspected members, not past members. (Court Book 131.9)

  10. In the hearing before the Court Mr Gibson tendered (as Exhibit A1) country information that had been before the Tribunal but was not in the Court Book. He submitted that the information showed that suspected members of Mungiki were being targeted, and not just members who had been involved in criminal activity. That country information is referred to in paragraph 51 of the Tribunals decision (Court Book 131).

  11. Ms Hamnett for the first respondent, contends, and the Court accepts, that country information was before the Tribunal which raised in the same terms the issue of suspected members being targeted


    (Court Book 83). Only the last sentence of paragraph 3.6.10 of


    Exhibit A1 is included at Court Book 83, but the remainder of the paragraph does not relate to suspected members.

    Ms Hamnett submitted that the applicant would not fall within the description “suspected member” because:

    ·He had had no involvement for 4 years (Court Book 129.8)

    ·The police showed no interest in him when he reported the theft of his property (Court Book 131.5)

    ·The Government crackdown was only on people who had been involved in criminal activities and he had not been involved.

    ·The applicant is a former member and did not claim that he would be targeted as a suspected member (Court Book 131).

    It was open to the Tribunal to find that when country information referred to suspected members of Mungiki being targeted, it was referring to current members of Mungiki and not to past members like the applicant, who on his own evidence states that his last involvement was in 2005 (Court Book 129.8). It is not for the Court to make a finding of fact as to whether the applicant could be described as a “suspected member.” The question for the Court is not whether the applicant could be described as a suspected member, but whether that claim if made was not dealt with by the Tribunal? Mr Gibson argued that the applicant had not made that claim explicitly, but he submits that it was implicit because of the country information relied on by the applicant, as contained in Exhibit A1. The Court notes that a claim of suspected membership was not made in the applicant’s statutory declaration (Court Book 33). The Court finds that the claim did not arise clearly from the country information relied on by the applicant.

  12. It is clear that the Tribunal had country information before it that included the issue of suspected members. It has not been shown that the Tribunal failed to have regard to that information. The country information referred also to “members” and involvement in criminal activity. Reliance on the country information did not raise the claim of persecution for reason of suspected membership. The Tribunal did not fail to deal with an integer of the applicant’s claims. The applicant’s claim was based on past membership.

    As stated in SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58]:

    “It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’) at [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173.”

    Also, it cannot be shown that the Tribunal failed to have regard to a claim put forward by the applicant that he was a “suspected member.” If the Tribunal made a finding of fact that the applicant would not be described as a “suspected member”, that finding could not be described as so unreasonable “that no reasonable body could have come to it.” Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) KB 223 at 230, 233-234.

  13. The Court finds that the Tribunal did not fail to deal with a claim by the applicant that he would be included within the description of “suspected members” and therefore be subject to persecution.

  14. If the Tribunal found that the applicant was not covered by the description “suspected member” a “faulty inference of fact does not show an error of law.” Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 at [9]

  15. The only ground argued at the hearing is that the Tribunal did not deal with the claim that the applicant would be persecuted for being a suspected member of Mungiki. That claim is dismissed for the reasons set out above.

  16. Ground one Particular two of the application is that the Tribunal misunderstood the distinction between persecution for Convention reasons and prosecution. Submissions were not put in support of that ground. It was open to the Tribunal to find that the applicant would not face any real harm from the Mungiki or from the Government, based on his membership of Mungiki. It has not been shown that the Tribunal made an error of law in applying the test of persecution for a Convention reason. This ground is dismissed.

  17. Even though the only ground argued before the Court has been dismissed above the Court will consider the Applicant’s Contentions of Fact and Law.

  18. The applicant contends that the Tribunal misunderstood the Convention test of well founded fear of persecution on the ground of membership of a particular social group being Mungiki…in light of its finding that the applicant had not been involved in criminal activities and the uncontradicted evidence that suspected members of Mungiki feared arrest, excessive force and extra-judicial killing. The alleged claim relating to suspected membership has been considered and dismissed above.

  19. The applicant contends that his fear of extra-judicial killing was raised simply because of his association with Mungiki. The Tribunal found that the applicant had an association with Mungiki (Court Book 130.9). The Tribunal did not accept that the applicant, as a past member of Mungiki, would face any harm (Court Book 131.5). Also, it did not accept that there is a real chance of any harm to the applicant from the Government or the Kenyan police (Court Book 131.5). This claim is dismissed.

  20. The applicant contends that the Tribunal’s findings make no allowance for the situation of the applicant being a person who, with Mungiki associations; with a risk of harm based on being a suspected member of Mungiki, faced arrest, excessive force and extra-judicial killing.

    The applicant did not present any evidence to show that he would be a “suspected member of Mungiki.”

    He did not prove his case.

    “The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).”

    The Court applies the following decision in another matter:

    “The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected.”

    This claim is dismissed.

  1. The applicant made the following claim in relation to persecution compared with prosecution:

    “7. What might otherwise be a non-Convention related prosecution for politically motivated acts might be characterised  differently if the anticipated punishment is likely to be excessive, arbitrary or disproportionate (the distinction being between fear of persecution as compared with a fear of prosecution and punishment) (Welivita v Minister [1996] 989 FCA 1). See also Cabal v MIMA [2000] FCA 1806 at [29][58-9]”

    This claim was not pressed at the hearing (Transcript p20 line 4), but Mr Gibson contended that a criminal prosecution could amount to persecution. It is contended that the Tribunal must have assumed that there was a real chance of excessive arbitrary or disproportionate punishment…otherwise the Tribunal would not have use the word persecution (Transcript p7 line 5). The Tribunal referred to “persecution” as involving “serious harm” [s.91R(1)(b)] which can involve significant economic hardship or denial of access to basic services or denial of capacity to earn a living. There it nothing to show that it assumed that persecution involved excessive, arbitrary or disproportionate punishment.

    This claim is dismissed.

  2. The applicant contends then that the Tribunal ignored people who might be suspected of membership of Mungiki, and be subject to the same risk as those who were participating in criminal activities.

    This claim has been considered and dismissed above.

  3. The applicant contends, and the Court accepts that the country information that was before the Tribunal made reference to “suspected members” facing arrest, excessive force and extra-judicial killings. The applicant failed to provide material to show that he could properly be described as a “suspected member”. The Court accepts the submission for the first respondent that there are factors that show that he would not be a “suspected member”. It is alleged that the applicant clearly fell into this category of “suspected member”. The Court rejects that contention. It was therefore not necessary for the Tribunal to consider whether suspected members would be subject to persecution. This claim is dismissed.

  4. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

  5. The application filed on 7 May 2009 and the amended application filed on 28 May 2009 are dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:  Eyal D’vier

Date:  13 November 2009

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Cases Citing This Decision

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Cases Cited

22

Statutory Material Cited

2

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22