MZYGM v Minister for Immigration - [2010] FMCA 212

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYGM v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 212

MIGRATION – Whether dealt with integer of particular social group – whether changed circumstances affect failure to deal with integer – members of the claimed particular social group would not now face a real chance of serious harm.

Migration Act 1958 (Cth), ss.91R, 424A, 474

SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC) at 558-559
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC)
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth (1999) 197 CLR 510
Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361
VBAP of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 965
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
AZAAR v Minister for Immigration and Citizenship [2009] FCA 912
Re Refugee Revue Tribunal; Ex Parte Aala [2000] HCA 57
Minister for Immigration and Multicultural Affairs and Indigenous Affairs v NAMW [2004] 140 FCR 572
VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178
VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104
Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
B90 of 2009 v Refugee Review Tribunal [2004] FCA 1557
Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682
SJVD & Ors v Minister for Immigration and Anor [2007] FMCA 817
Rahman v Minister for Immigration and Multicultural Affairs [1999] FCA 73
Das v Minister for Immigration and Multicultural Affairs [2004] 208 ALR 229
Saha v Minister for Immigration and Multicultural Affairs [2001] FCA 250
Minister for Immigration and Citizenship v SZCWF & Anor [2007] FCAFC 155
SZHMN v Minister for Immigration and Citizenship & Anor [2008] FMCA 331

Applicant:

MZYGM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG1126 of 2009

Judgment of:

Turner FM

Hearing date:

12 February 2010

Date of Last Submission:

12 February 2010

Delivered at:

Melbourne

Delivered on:

30 March 2010

REPRESENTATION

Counsel for the Applicant:

Mr Gibson

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondents:

Mr Knowles

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application filed 8 September 2009 and amended application filed 19 January 2010 are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG1126 of 2009

MZYGM

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 (the “RRT”). That decision affirmed a decision of a Delegate of the Minister not to grant the application a Protection

(Class XA) visa.
The applicant arrived in Australia on 18 October 2007 and applied for a Protection (Class XA) visa on 30 January 2009. The Delegate decided to refuse to grant the visa on 30 April 2009. The applicant applied to the RRT on 5 May 2009 for review of that decision. The RRT affirmed the decision under review by decision dated 12 August 2009.
The ground on which the applicant seeks judicial review by this Court are set out in the application filed on 8 September 2009, and the amended application filed on 19 January 2010.
Before the Court, Mr Gibson appeared for the applicant and

Mr Knowles for the first respondent.
Mr Gibson relied on three points when arguing his clients case and did not press any other grounds,
i)The “integer point”, which alleges that the RRT failed to consider the applicant’s claim that he feared persecution as a young black man.
ii)The “no evidence ground” which alleges that critical findings of fact were not supported by the evidence.
iii)“Misconstruction of test and s.91R of the Migration Act 1958” (the “Act”). Alleged misconstruction of the word “persecution” and its elements, and the meaning of “serious harm.”

The Integer Point

The Court accepts that it was an integer of the applicant’s claim before the RRT that he was a young black man being of the age group that was assumed to be Movement of Democratic Change (“MDC”) supporters and thus there was an implied political opinion attributed to him because he was a young black man (Court Book 148.8).
The Tribunal dealt with that claim at (Court Book 150.7, 152.8 153.7 and 154.1 – 154.6).
The RRT considered the claim of persecution because of his membership of a “group of young black men.” The Court infers that the meaning of that group is the meaning stated in paragraph 45 of the decision (Court Book 148.8). The RRT found that “young black men” do not constitute a particular social group. The RRT does not state that it has considered whether young black men of that age who were assumed to be MDC supporters constituted a particular social group. The distinguishing attribute is support for the MDC.
However, even if the RRT did not deal with specific aspects of the claim relating to actual or implied political beliefs, the Court accepts the submission for the first respondent that such failure could not have any material impact on the Tribunal’s decision, as the Tribunal found that due to changed circumstances in Zimbabwe the applicant would not, even if it were known that he was an actual member and supporter of the MDC, face a real chance of serious harm from the authorities or political rivals (Court Book 152 [70] and [73] and 153 at [75]).
These findings of fact were open to the Tribunal on the material before it and are not amenable to review.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.”
“By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.” NAHI Supra at [11].
The Court refers to following the decisions:
“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence… and no detailed reasons need to be given as to why that particular witness was not believed…In any event, the reason for disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. : Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].”
As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:
“The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).”
The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].
The Court does not make that finding in this case.
This finding of fact that the applicant will not face a real chance of serious harm is an independent and unimpeachable basis for the Tribunal’s decision.
Where there is an independent and unimpeachable basis for the decision it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision VBAP of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 965 at [33].
The Court refers also to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29]
“The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s424A, they cannot overcome the Tribunal's finding that their claims lacked the requisite Convention nexus. The appellants' case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, cited in Aala, was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse.” [21]
“[21] Re Refugee Revue Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 109 [58].”
The Court finds that no useful result could ensue from granting the applicant the relief he seeks, as the applicant cannot overcome the finding of fact as to the current situation and that as a result he does not hold a well founded fear of persecution within the meaning of the Convention (Court Book 154.8).
Mr Gibson relied on the decision in AZAAR v Minister for Immigration and Citizenship [2009] FCA 912, 111 ALD 390 to argue that the RRT here should have investigated whether there will be effective state protection for the applicant if he is returned to Zimbabwe. In effect this argument is that the RRT should not have relied on the country information it relied on (Court Book 151.2, 151.5, 152.3 – 152.5 and 154.5).
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.”
“By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.” NAHI Supra at [11].
It is well established that “both the choice and the assessment of the weight of” country information is a matter for the RRT.
“The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”
NAHI supra at [13] and affirmed by the Full Court in VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [26]:
“The Tribunal does not commit jurisdictional error when it prefers one body of country information over another.”
It is settled law that s.424A(3)(a) excludes country information from the requirements of s.424A(1): Minister for Immigration and Multicultural Affairs and Indigenous Affairs v NAMW [2004] 140 FCR 572 at [64]-[74] and at [112]-[138] and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]-[16]. Accordingly, the Tribunal was not obliged to provide independent country information to the applicant for comment.
In AZAAR the RRT accepted that the applicant “would continue to suffer from mistreatment should she return to Vanuatu”; therefore the issue arose of whether there would be effective state protection. That shows a vital distinction from the present case where the RRT found (at Court Book 151.5), that based on country information, there was a “freeing of various human rights supporters” and also evidence that Zanu-PF supporters were now retreating from an activist position as they were being targeted by the MDC youths; and therefore It is unlikely that people like the applicant’s father would be subject to attention by rival groups. The applicant as the son of the father would not be targeted by rival groups because of these changes to the political situation in Zimbabwe. The RRT referred to the material supporting it’s conclusions.
The RRT concluded in this case that it “does not accept that the applicant would be targeted by political rivals because he is a member of this political party” (Court Book 152.2).
The RRT found that “the applicant has not been attacked or persecuted” (Court Book 152.2).
The RRT found that the Economist Intelligence Unit report of February 2009 suggests that “there are less difficulties between the two parties” (Court Book 152.3).
The RRT found that:
“in view of the changed political situation indicated by country information reports the father would now be less likely to face any difficulties. Consequently his son would have no real chance in the foreseeable future of suffering harm, as the son of a father who is a supporter of the MDC or the son of a mother who has worked in the office of the President.” (Court Book 152.5)
The RRT found that:
“merely being one of those (MDC) supporters would not as such indicate that the person would be subject to persecution

(Court Book 152.8)…but for an ordinary individual who holds no office in the party…there would be no real chance that the applicant would be harmed now or in the foreseeable future”. (Court Book 152.9)
The RRT did “not accept that the applicant has in the past suffered serious harm for reason of his membership or support, actual or implied, of the MDC.” (Court Book 153.3)
The RRT did “not accept that there is a real chance that the applicant will suffer serious harm for reason of his membership or support of the MDC if he were to return to Zimbabwe.” (Court Book 153.4)
As stated by the Federal Court of Australia in Lee vMinister 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.”
The RRT found, for the reasons it gives, that there is no real chance that the applicant will suffer harm as a member of a family unit where his father was an active supporter of the MDC (Court Book 153.6).
The RRT considered the applicant’s claims to fear persecution because of his membership of a particular social group of returnees in general, or returnees who have sought asylum abroad, or as a group of young black men.
The RRT set out how the applicant defined his concerns about being a “black man” as “a young person, a young black man, he was of the age group that were targets as this age group tended to support the MDC, and at that age they are assumed to be MDC supporters. This was the implied political opinion attributed to him because he was a young black man” (Court Book 148.8). The finding that a group of young black men does not constitute a particular social group
(Court Book 153.8) must be considered in context of what is stated at Court Book 148.8.
At Court Book 154.2, the RRT considered country information about students or professionals returning to Zimbabwe after studying overseas, and did not accept that the applicant would come to adverse attention of the authorities, or that there is a real chance that the applicant would suffer serious harm as a result of having remained in Australia and applied for asylum (Court Book 154.7).
The RRT found next that it “does not accept that the applicant has suffered serious harm in Zimbabwe as a result of his political opinion or for any other Convention reason.” (This is to be distinguished from the situation in AZAAR supra).
The RRT found next that it does not accept that he would face a real chance of serious harm for a Convention related reason were he to return to Zimbabwe now or in the reasonably foreseeable future.
All of the above findings of fact were open to the RRT on the material before it and are not amenable to review.
The facts here are in stark contrast against the facts in AZAAR; There the RRT accepted that the applicant had suffered harm for a Convention reason in the past and would face the risk of serious harm if she were to return to Vanuatu. The question then arose as to whether there would be effective state protection for her.
In the present case, the RRT held that the applicant had not suffered harm for a Convention reason, and there is no risk of serious harm for a Convention reason if the applicant returns to Zimbabwe. The RRT therefore did not have to consider whether there would be effective state protection against a non-existent risk. The decision in AZAAR has no bearing on this case.

Mr Gibson referred to the decision in B90 of 2009 v Refugee Review Tribunal [2004] FCA 1557 when addressing the changed circumstances in Zimbabwe with the MDC and the Zana-PF party entering into a power sharing agreement.
Mr Gibson referred to para.28 of B90 where Justice Dowsett stated:
28…“Firstly, evidence of actual persecution, known to an applicant if accepted, may qualify or exemplify the effect of the country information which is otherwise available. Almost by definition, such information will, on occasions, not reflect the whole picture. The Tribunal should be careful not to discount direct evidence from an applicant merely because it does not accord with more general country information. Secondly, where circumstances are said to have changed for the better since any incident testified to by an applicant, the Tribunal should exercise care in ensuring that such changed circumstances relate to the circumstances in which the incident occurred and recongnise that change is, almost inevitably, relatively gradual, incremental and unlikely to take effect in a uniform way throughout any particular geographical region. I see no reason to believe that the Tribunal failed to understand the nature of its task, including these aspects.”
In the present case the RRT gave extensive consideration to the alleged persecution of the applicant, past and future, and did not accept it. The decision shows that the RRT exercised care when examining the material before it as to changed circumstances.
The power sharing agreement is not central to the decision of the RRT; What is central is the country information that the risk to the applicant and his father has decreased to such an extent that the RRT made a finding that it does not accept that there is a real chance that the applicant would suffer serious harm for a Convention related reason were he to return to Zimbabwe now or in reasonably foreseeable future (Court Book 154.8). That finding of fact was open to the RRT on the material before it and is not amenable to review.
For the above reasons, the decision in B90 has no bearing on this matter.
The first ground is dismissed.

The “no evidence” ground

Under this ground Mr Gibson alleges that critical findings of fact were not supported by the evidence. For instance, Mr Gibson argued that there was no evidence to support the finding by the RRT that the applicants’ father’s name was not known to his political opponents.
The Court finds that there was evidence before the RRT to support its finding that the attacks on the applicant’s father were random attacks (Court Book 152.1). The RRT referred to that evidence
(Court Book 151.8).
The Court accepts the submission for the first respondent that attacks on the applicant’s father occurred for reasons other than being identified by his assailants as a particular person.
That evidence is:
·That attacks occurred after election rallies – Court Book 34[25], 35[29], 148[43];
·That, at the rallies, the applicant’s father has expressed his support for the MDC – Court Book 34[25], 35[29], 147[39], 148[43];
·That while doing so he was wearing an MDC t-shirt – Court Book 31[11], 35[29], 148[43];
·That after the rallies there was conflict between groups of supporters of rival political parties – Court Book 148[42] and [43].
The above evidence supports also the finding by the RRT that the attack on the applicant’s father were “random” attacks (on MDC supporters) (Court Book 152.1). The applicant has not provided any evidence that his father’s actual identity was known by his assailants. There is no evidence that the applicant would be known by the assailants as his father’s son. It cannot be said that there is no evidence to support the finding that the father’s name was not known to his assailants.
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”
A wrong finding of fact is not jurisdictional error. Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.
“Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment”: Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35.
The Court refers to the following passages in Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.
There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.”
The Court does not find the decision to be so unreasonable that no repository of the power could have taken it.
As stated in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7]:
“A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.”
Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, RD Nicholson J, 23 November 1995, unreported) at [24]:
“It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible.”
It is for the RRT to decide which evidence it accepts of rejects and what weight it gives to evidence Lee (supra).
This ground is dismissed.

The ground of Misconstruction of Test and s.91R

It is alleged that the RRT misconstrued the term “persecution” and it’s elements in s.91R of the Act, by not appreciating the meaning of “serious harm”.
It is alleged that the RRT erred in finding that the attacks on the applicant’s father were “random” (Court Book 152.1) as distinct from “systematic and discriminatory conduct” as specified in s.91R(1)(b) and (c). Evidence in support of the finding that the attacks were random has been referred to above.
This argument is an attempt to review the merits and is not available. Mr Gibson referred to the factual situation in SJVD & Ors v Minister for Immigration and Anor [2007] FMCA 817 to say that because the facts there showed the attacks were not random, the RRT should not have held that they were “random” in the present case. The Court cannot review findings of fact by the RRT. SZINP, Quin and Chen Xi He supra.
The Court accepts however that the attacks on the MDC supporters were directed at MDC supporters. This does not mean that the attacks on the applicant’s father were not “random”. The Court however is precluded from reviewing such findings of fact.
Mr Knowles referred the Court to the decision in Rahman v Minister for Immigration and Multicultural Affairs [1999] FCA 73 at [10], where Hely J states that:
The fact that all political parties are from time to time involved in armed clashes with the police and each other, as part of the political milieu of Bangladesh, does not mean that there is persecution within the meaning of the Convention, because the violence lacks the selective or discriminatory quality which is inherent in the notion of persecution, and because it lacks the requisite “official” quality in the sense that it is official, or officially tolerated, or uncontrollable by the authorities of Bangladesh.
The Court accepts the submission for the first respondent that:
Section 91R of the Act requires that persecution involves systematic and discriminatory conduct. It is not enough that the conduct in question is merely discriminatory. It must also be “non-random”, and that once the Tribunal found, as a matter of fact, that, given the context within which they occurred, the attacks on the applicant’s father were “random”, they could not give rise to persecution within the meaning of section 91R of the Act and the Convention. Minister for Immigration and Citizenship v SZCWF & Anor [2007] FCAFC 155 at [28]-[38]; SZHMN v Minister for Immigration and Citizenship & Anor [2008] FMCA 331 at [35]-[38].
Mr Gibson alleges that the RRT erred in not accepting the applicant’s father suffered “serious harm”. That was a finding of fact by the RRT and is not amenable to review. The RRT is entitled to accept or reject evidence. Lee supra.
Mr Knowles referred to Das v Minister for Immigration and Multicultural Affairs [2004] 208 ALR 229 where Justice Sundberg held that smashing the applicant’s finger with the butt of a machine gun was not serious harm; and to Saha v Minister for Immigration and Multicultural Affairs [2001] FCA 250 where it was found that being shot at, badly beaten and badly injured was not serious enough to constitute persecution. It is not for the Court to decide whether injury in this case described as “stabbing” was superficial or serious. The attempt to review the merits is dismissed.
Even if an error of fact were established there is an independent unimpeachable basis for the RRT’s decision, being that the RRT does not accept that the applicant would face a real chance of serious harm for a Convention related reason were he to return to Zimbabwe now or in the reasonably foreseeable future (Court Book 154.8).
The Court would therefore not remit the matter for reconsideration. The Court refers to the decisions in VBAP and SZBYR (supra).
Mr Gibson next seeks to challenge the finding of fact that there would be less risk of harm from opposition activists. The finding of reduced risk of harm (Court Book 151.5) was based directly on country information. It was open to the RRT and is not amenable to review. As stated earlier an examination of the availability of state protection was not necessary, as the risk was not established. The ground is dismissed.
Mr Gibson asserts that the RRT did not assess the extent of change in Zimbabwe in order to determine whether effective state protection will be available. As stated above, the RRT considered country information and made a finding of fact that the applicant will not face a real chance of serious harm for a Convention related reason if he were to return to Zimbabwe now or in the reasonably foreseeable future

(Court Book 154.8).
The RRT had the following evidence before it:
·The power-sharing arrangement between the MDC and Zanu-PF [CB 151 [67]];
·The representation of the MDC in the government [CB 151 [68]];
·The easing of difficulties between the MDC and Zanu-PF since the introduction of the power-sharing arrangement [CB 152 [70]];
·
The considerable electoral and popular support for the MDC

[CB 151 [68] and 152 [73]];
·
The freeing of human rights supporters from detention

[CB 151 [67]; see also CB 97];
·
Attacks on Zanu-PF supporters by supporters of the MDC

[CB 151 [67] and 153 [75]; see also CB 97]; and
·
The voluntary return of large numbers of exiles to Zimbabwe

CB 154 [81]; see also CB 99].
That finding of fact was open to the RRT and is not amenable to review. As a result the RRT was not required to determine whether effective state protection will be available to the applicant.
This ground is dismissed.
The applicant has not shown an error of law or reviewable error of fact.
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.
The application and amended application are dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Erin Firns

Date: 30 March 2010