MZYLI v Minister for Immigration
[2011] FMCA 906
•25 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYLI v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 906 |
| MIGRATION – Review of Refugee Review Tribunal – protection visa. |
| Migration Act 1958 (Cth), ss.424A |
| Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572; (2004) 84 ALD 325 MZWYY v Minister for Immigration and Multicultural Affairs [2006] FCA 506 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 SZEEG v Minister for Immigration [2005] FMCA 140 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 |
| Applicant: | MZYLI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 370 of 2011 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 16 August 2011 |
| Date for Last Submission: | 7 September 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 25 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appearing in person |
| Solicitors for the Applicant: | Goz Chambers Lawyers |
| Counsel for the First Respondent: | Mr Brown |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | There being no appearance by or on behalf of the Second Respondent |
ORDERS
The application filed on 21 March 2011 be dismissed.
The Applicant pay the First Respondent’s costs fixed at $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 370 of 2011
| MZYLI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (‘RRT’), made on 18 February 2011. The Tribunal affirmed a decision of the delegate of the Minister refusing to grant the applicant a protection visa. On 21 March 2011, the applicant sought review of the Tribunal’s decision.
Background
The applicant is a citizen of Ghana. He arrived in Australia on 20 July 2009 as part of a Ghanaian national ‘deaf and dumb’ football team and subsequently applied for a protection visa. On 22 July 2010 a delegate of the Minister refused to grant the applicant a Protection (Class XA) visa under the Migration Act 1958. The applicant applied for a review of the delegate’s decision on 16 August 2010. The applicant had the opportunity to appear at the Tribunal and was assisted by an interpreter. His application stems from his concerns of persecution in Ghana as a result of his Mamprusi ethnicity and Christian religion. The applicant’s concerns also arise from his claimed membership of a particular social group, the Peace Movement, whom had been seeking to reduce tension between the two conflicting tribes, the Kusasi and Mamprusi tribes.
The Tribunal’s findings
The Tribunal accepted that there had been a long history of tribal conflict between Mampursis and Kusasis in the [B] region of Ghana. However, the Tribunal did not accept that the applicant was a member of the Peace Movement, noting the discrepancies of the group’s name in the applicant’s statutory declarations and his version at the hearing. The Tribunal stated (at paragraph [80] of its decision:
[80] …However, in the past three years the applicant was a member of this alleged club, only Mamprusis were part of the peace group and they did not manage to engage in any discussions with the Kusasi. The Tribunal finds it implausible that a club which was set up with the primary purpose to organise how to communicate with the Kusasi in order to stop the fighting between the two groups and become friendly, would not in the several years it was in operation have any interaction or dialogue with the people central to their goal. The Tribunal also notes that the applicant provided inconsistent evidence regarding his position within this group. In his statutory declaration submitted to the Tribunal he claimed that he was elected to the position of organiser after about two years involvement with the group. However, in the hearing he claimed that he was a deputy or vice leader of the group. The Tribunal finds it far-fetched that in three years of meeting weekly to discuss how the Mamprusi could co-exit peacefully with the Kusasi, the peace group came up with a plan to ignore the Kusasis and make friends with them. For these reasons, the Tribunal does not accept that the applicant was a member of a peace group or peace community.
As the Tribunal rejected the proposition that the applicant was a member of any peace group in [B], the Tribunal did not accept that Kusasi had from 2006 started attending his home in search for the applicant. The Tribunal noted (at paragraph [81]):
[81] …the Tribunal does not accept that if the applicant had been sought on numerous occasions over a period of three years, he would fail to mention this prior to the hearing. The Tribunal also finds it implausible that if the Kusasi living in his area were pursuing the applicant as he claimed and missed him every time they went to his home, they would not seek him at his farm, especially given that he claimed in the hearing that he spent most of his time there. The Tribunal therefore does not accept that the Kusasi had sought the applicant for a very long time as he claimed.
The Tribunal rejected the applicant’s account that the Kusasi, in looking for the applicant, came to his family home in January 2008 and killed his father. Nor did the Tribunal accept that upon the applicant’s return from his farm and seeing his father lying on the floor, the Kusasi pursued him and injured him with sticks and stones. The Tribunal noted the inconsistency in the applicant’s evidence as to how the scar on his leg occurred. At paragraph [82] in its decision, the Tribunal stated:
[82] …In his statutory declaration submitted to the Tribunal, the applicant claimed that as he was running away from the Kusasi he fell down at one point and still has the scars on his right left from where he hit a branch. However, in the hearing the applicant claimed the scars on his leg was the result of having a machete thrown at him as he was running. Given the seriousness of this alleged violent attach on the applicant, the Tribunal does not accept that he would mistake a machete with a tree branch. The Tribunal therefore does not accept that the injury to the applicant’s leg was the result of an attack on him by the Kusasi.
The Tribunal took into account but gave little weight to an article titled ‘[B] Conflict Claims Another Victim’ dated 24 June 2008. The article was accessed from the Business Guide Ghana website and specifically referred to the applicant. The Tribunal indicated its concerns as to the validity of the evidence since it was only submitted on the day of the Tribunal hearing. The Tribunal further noted that the webpage containing the article was last updated just two days before the hearing. These concerns, in addition to the Tribunal’s earlier findings, meant the Tribunal placed little weight on the evidence of the article.
While the Tribunal rejected the applicant’s claims with respect to his experience in [B], it did accept that he may have relocated to Kumasi as he purported in April 2008, in light of the country information. The Tribunal found there was a ‘remote chance’ that the applicant would face serious harm as a result of his ethnicity if he returned to [B]: see paragraph [88] of the Tribunal’s decision. At paragraph [90] of its decision the Tribunal took into account reports of action taken by the Ghanaian government in addressing the tribal conflict in the [B] region. The Tribunal ultimately concluded that despite the efforts of the authorities in Ghana, the nature of the conflict meant the fighting would continue. However, the Tribunal found that in the circumstances the local government had taken reasonable measures to protect its people and that the applicant would be able to access state protection:
[91] …the government of Ghana has taken reasonable measures to protect the lives and safety of its citizens in the [B] region with the provision of a reasonably effective police and military force and a reasonably impartial justice system. The Tribunal does not accept, on the basis of the country information before it, that the protection available would be withheld from the applicant for reasons of his ethnicity, religion or any other Convention reason. The Tribunal finds that the applicant would be able to access state protection in accordance with international standards if he returned to [B]. Accordingly, the Tribunal finds that the applicant’s fear does not amount to persecution for the purpose of engaging Australia’s obligations under the Convention.
The Tribunal also found that the applicant could reasonably relocate to another part of Ghana where there is ‘no appreciable risk’ of feared persecution: see paragraph [92] of the Tribunal’s decision. The Tribunal noted that the conflict was mostly confined to the [B] region and that:
[94] …there is nothing to suggest that the conflict has spilled over to other urban areas of Ghana such as Kumasi or Accra. The Tribunal refers to the UK Home Office Operational Guidance Note for Ghana, cited above, which regionalised the sporadic ethnic and tribal disputes is generally feasible. The Guidance note concludes that the applicants citing conflict between tribal groups such as the Kusasi and Mamprusis, ‘are able to receive adequate state protection and are able to internally relocate to another part of the country’. Similarly, advice from DFAT dated 11 December 2009 provides that men of Mamprusi ethnicity would not likely to be harmed from being Mamprusi in a large city such as Kumasi, Ghana’s second largest city, or in Accra, the capital of Ghana.
Given the state of affairs in other areas of Ghana, the Tribunal did not accept that the Kusasi would target the applicant if he returned to Kumasi. The Tribunal noted that the applicant had lived in Kumasi for over a year and experienced no problems. The Tribunal observed that the applicant had contacts in Kumasi, that he can speak Twi, one of the major languages spoken in Ghana and that his past experience working as a labourer along with his farming and trading experience would help him to secure employment. The Tribunal found that it would be reasonable for the applicant to relocate to Kumasi and that the risk of harm by Kusasis is remote: see paragraphs [95] to [96] of the Tribunal’s decision.
With respect to the applicant’s claim of feared harm as a Christian, the Tribunal noted the applicant’s ability to practice his religion without experiencing any difficulty. The Tribunal also noted country information indicating that Christians constituted the largest religious group in the country and that the Ghanaian Constitution provides for freedom of religion. The Tribunal rejected the applicant’s claim of persecution by reason of his Christianity.
In relation to the applicant’s claim that he fears arrest should he return to Ghana, as a result of his illegal travel to Australia, the Tribunal made the following findings:
[98] …The Tribunal accepts that there has been some media publicity in Ghana surrounding the deaf soccer team scam and that investigations have led to the imprisonment of the coach and sports development officer, who were identified as the key persons involved in the scam. The Tribunal accepts that if the applicant returns to Ghana, there is a real chance that he faces persecution under a law of general application for his involvement in this scandal, particularly contravening laws in relation to legal departure from the country, and not persecution within the meaning of the Convention.
The Tribunal ultimately concluded that:
[99] Considering the applicant’s claim individually and cumulatively, the Tribunal does not accept that the applicant has a well-founded fear of persecution for reasons of his Mamprusi ethnicity, his Christian religion or any other Convention reason, if he returns to Ghana, now or in the reasonably foreseeable future.
Ground One
In the application filed on 21 March 2011 the applicant claims that the Tribunal committed jurisdictional error when it ‘failed to identify to the applicant issues critical to the decision which was not apparent from its nature or the terms of the statute’ and ‘advise of any conclusion’ reached which was not open on the material. The particulars for the first ground of review are set out as follows:
PARICULARS
The Tribunal did not challenge what the applicant said, express any reaction to what he said, or invite him to give details on each of the following issues:
(a) In January 2008, Kusasis killed the applicant’s father and the applicant was ambushed.
(b) The Tribunal’s allegation or suspicion that the article provided by the applicant in support of his claim dated June 2008 “appears to have been on the internet in October 2010”.
(c) That the Tribunal would make adverse finding in relation to the validity of evidence submitted by the applicant on the day of the hearing.
(d) The adverse finding in relation to the applicant’s relation from [B] to Kumasi.
(e) The Tribunal appears to have misguided itself as to what the applicant claimed to be his fear for persecution. The Tribunal concluded that: “The Tribunal does not accept that the applicant was a member of any such club or group”. The applicant did not claim to be a member of any club.
(i) Each of the above issues was critical to the decision and led to adverse conclusions being arrived at which was not obviously open on the known material.
French J when on the Federal Court in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 stated (at paragraph [26]:
In my opinion, there is no failure of procedural fairness here. The Tribunal, of course, is not obliged as a matter of procedural fairness to alert parties about, and invite their comments on, its thought processes in decision-making, nor upon the possibility that it might not accept certain of the evidence tendered by a party. The process is, of course, inquisitorial but in the course of it the applicant for review submits the evidence that the applicant relies upon and makes his or her case based upon that evidence. (emphasis added)
The Tribunal had no obligation to challenge or ‘express any reaction’ to what the applicant had said nor invite the applicant to give details on the issues listed under ground 1 of the application. Of course, a Tribunal may have to raise issues to ensure an applicant is aware a matter is a ‘live issue’.
Nevertheless, in this case the Tribunal did put to the applicant its concerns as to the validity of the evidence of the article from The Daily Guide:
[50]…The Tribunal put to the applicant that it had some concerns about this article as it went to the particular internet site prior to the hearing and underneath the article he had submitted it recorded that the source was The Daily Guide, there was no author mentioned and it also stated that it was last updated on Saturday 30 October 2010 at 20:15. The applicant stated that his reading and education was not up to that level but what he knows is that Joseph gave him that link. He could not say a lot about what was written there. The Tribunal noted that the contents of the article is surprising consistent with his most recent statements in terms of the detail regarding what happened when his father died and that fact that it has arisen two days before the hearing raises further concerns about its credibility. The applicant stated that until he came to Australia he had not touched a computer. Joseph told him he would get as much information to him as possible and that is how he got this article. (emphasis added)
In relation to the January 2008 incident when the applicant alleged that his father was killed and he was ‘ambushed’, the Tribunal had put this issue to the applicant in a way that would have sufficiently alerted him to the fact that this was a live issue.
[37] …The Tribunal asked the applicant if he knew if someone else reported this incident to the authorities. He stated that he was not aware if anyone had reported this to the police or the authorities. The Tribunal noted the reason it asked was because such violent attacks are reported in the Ghanaian papers and investigated by the authorities, including the violence which occurred in January 2008. The applicant stated that he was very scared for what had happened and at that point he could not think straight. Sensing that they would kill him if they found him and he did not make any attempt to report to any authority.
…
[43] …The Tribunal asked the applicant if on the previous occasions the Kusasi came looking for him at his home had they ever done anything to any other members of his family, including his father. The applicant stated that most of the time they came and because he was a target they would walk around to see if he was there and sometimes they would engage his father in a verbal altercation. The Tribunal asked the applicant what he thought happened this last time given that on previous occasions, since 2006, they had only engaged in verbal altercations with his father but in 2008 they killed him, which is fairly extreme. He stated that once they accused his father of hiding him and his father was slapped. He presumes that on that day in January 2008 they thought by killing his father they would get him so that was why they did that. Sometimes they send people who were not known to his father but his father, being elder, knew what was happening. (emphasis added)
The Tribunal had also put the issue of the applicant’s relocation to him in a manner that would have indicated to him it was a critical matter. At paragraph [46] of the Tribunal’s decision, the Tribunal had asked the applicant if he had experienced any problems or difficulties while he was living in Kumasi. At paragraph [54]:
[54] The Tribunal put to the applicant that information also indicates that the conflict between Mamprusi and Kusasi as seen in [B] is not pervasive throughout Ghana but isolated to the [B] area and as such safe relocation to a different area of the country such as Kumasi or Accra is regarded as feasible. The constitution provides for freedom of movement within the country and the government generally respected this right in practice. It noted that he spent a year living and working in Kumasi and nothing happened to him, which is consistent with the information that men of Mamprusi ethnicity would not likely be harmed for being Mamprusi in a large city such as Kumasi or Accra. Therefore, on the independent information available, it would appear reasonable for him to relocate to Kumasi in order to avoid the persecution he fears in [B] The applicant stated that there are other tribes that come from the northern region to do business in Kumasi and Accra and not just the Mumprusi and Kusasi. There is a common name given to people from the north, regardless of their ethnic or tribal group. He believes strongly that if he went out often while he was in Kumasi he would have encountered some problems from the Kusasis but because he hid himself and did not go out that was why he had peace. People looked down on northerners in general and associated this sort of conflict with them irrespective of which ethnic group they belonged to. (emphasis added)
The application states that the applicant did not claim to be a member of any club as suggested by the Tribunal. However, this is not correct when one examines the Tribunal’s decision:
[31] The Tribunal asked the applicant how these problems or conflict between the two tribes has affected him. The applicant stated that there was a club called peace group and the aim of this club was to seek peace for the area. They normally went to try to find ways to make peace with the Kusasi because anytime war broke out the Mamprusi suffered more so they decided to form this group to make sure there was peace. He became the deputy or vice leader of the group. Anytime the group went to discuss and find ways to make peace, the Kusasi normally thought they were planning ways to attack them, therefore he came a target because they knew he was part of the leadership….
…
[38] The Tribunal queried whether he was claiming that the reason the Kusasi were looking for him was because of his association with the peace group. The applicant stated that by default the Kusasi do not like the Mamprusi so the hatred was already there. Then, when they realised they had formed that group and knowing they were young men who could fight and believing that this was what they were planning, that was the main reason they decided to attack.
…
[41] The applicant stated that he joined the group three years before he left Ghana, in 2006. When asked what made him decide to become a member of this group, the applicant stated that he had a friend who shared the idea with him about getting together and brining about peace and he thought it was a good idea… (emphasis added)
I therefore find no error on the part of the Tribunal in this regard.
Ground 2
The applicant’s second ground of appeal is that the Tribunal misconstrued and misapplied the definition of ‘refugee’ and ‘persecution’ as found in section 91R of the Migration Act 1958. The particulars of this ground are set out as follows:
PARTICULARS
The Tribunal accepts that the applicant is of Mamprusi ethnicity and that there is a long history of tribal conflict between Mamprusi and Kusasis in the applicant’s [B] region. The Tribunal finds that over the last century there have been numerous incidents, hostilities, battles, murders and assaults. However, the Tribunal failed to consider the applicant’s subjective state of mind following such continuous incidents.
The First Respondent submits that given the Tribunal found that there was ‘more than a remote chance’ that the applicant would face serious harm as a result of his ethnicity if he returned to the [B] region (see paragraph [88]), it was unnecessary for the Tribunal to expressly consider whether the applicant had a subjective fear of persecution. Importantly, the Tribunal concluded (at paragraph [91] that the applicant would be able to access state protection and therefore the fears did not amount to persecution within the meaning of the Convention and that if he chose to re-locate there was no appreciable risk (see paragraph [92]).]
In MZWYY v Minister for Immigration and Multicultural Affairs [2006] FCA 506 Kenny J stated:
[14] The RRT was not in error when if failed expressly to consider the appellant’s subjective state. It is true that, if the applicant were to succeed, then the Tribunal had to be satisfied that he subjectively held a fear of persecution if returned to Kenya and that his fear was well-founded. As the Federal Magistrate found, the Full Court decision in WAHK is contrary to the appellant’s claim that the RRT was required to consider subjective factors. In WAHK, Lee and Tamberlin JJ said (at [12]-[14]) as follows (emphasis mine):
"Where the RRT has accepted that an applicant had a well-founded risk of persecution at the time of their departure, a question arises concerning the approach that the RRT should take, in view of that finding, at the time it makes its decision concerning whether that applicant would have a well-founded risk of persecution, if they were returned. In [Chan], Gaudron J, (at 415), accepted that the correct approach to a submission as to changed circumstances is as follows:
"If an applicant relied 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 the subsequent changes in the country of nationality."
The above view was not shared by Gummow J, who, in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 659, said that the view of Gaudron J in Chan (quoted above) did not represent the view of the Court in Chan. Gaudron J accepted that this observation was correct in the case of Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [69]. Her Honour considered that her approach was, nevertheless, correct.
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."
The majority’s approach is directly contrary to the position of the appellant in this case. Consistently with WAHK, if the RRT is not satisfied, objectively speaking, that there was a real chance of persecution then it does not have to further consider an applicant’s subjective fear. This is because, without a sufficient objective chance of persecution, the applicant cannot have a well-founded fear of persecution: see also WAKZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1065 at [46]- [49] and SVTB at [21]. (emphasis added)
However, as Smith FM’s observed in SZEEG v Minister for Immigration [2005] FMCA 140 (at paragraph [22]):
[22] Counsel addressed this ground in written submissions and briefly in his oral submissions, but I do not consider it is necessary for me to elaborate it further in these reasons. I am prepared to accept that a subjective state of fear is a necessary element in an applicant making out an entitlement to a protection visa, and that in many cases it becomes a necessary issue for a tribunal member to address. However, I do not accept that there is any particular pathway or sequence by which that element is required to be addressed. In the present case, in my view, the Tribunal has addressed the question of the applicant's claim subjectively to fear persecution on return to Bangladesh and has rejected it for reasons which the Tribunal has set out clearly. . (emphasis added)
Ultimately, the applicant can only succeed if there is an objective basis for a well founded fear. As the applicant has failed to establish the objective element of the case he could not succeed in any event.
Ground 3
The applicant’s third ground of appeal is that the Tribunal failed to afford the applicant procedural fairness when it did not provide the applicant with information under section 424A of the Migration Act 1958. The particulars of this ground are set out as follows:
PARTICULARS
(I) The Tribunal did not provide the applicant with the following information prior to the hearing or prior to the Tribunal’s decision being handed down:
(a) In [its] reasons for [the] decision the Tribunal made adverse finding about the validity of documentary evidence submitted by the applicant in support of his claim without giv[ing] the applicant an opportunity to respond to such finding.
(b) The Tribunal did not provide the applicant wit the lengthy country information referred to in its decision prior to the hearing or prior to the Tribunal’s decision being handed down. The country information specifically relates to the applicant’s claim and formed the reason, or part of a reason for affirming the decision under review.
I note that section 424A of the Migration Act 1958 deals with the information that the Tribunal must provide to the applicant:
424A [Information and invitation given in writing by Tribunal]
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it. (emphasis added)
Section 424A(3) provides that:
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information. (emphasis added)
The First Respondent contends that under s.424A(3)(b) the Tribunal was not obliged to give the applicant an opportunity to respond to its finding with respect to the validity of the documentary evidence since it was information provided by the applicant for the purpose of the review. I find that the article accessed from the Business Guide Ghana website, in particular, the details of when the webpage was updated, resulted in the Tribunal’s thought processes and evaluation of the documentary evidence. This is not, relevantly information that the Tribunal must provide to the applicant under s.424A(1) of the Act.
Under s.424A(3)(a) the Tribunal is not obliged to provide the applicant with information that is ‘not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member’. It is clear that the country information cited by the Tribunal in its decision was ‘not specifically about the applicant or another person’. The information simply pertained to a class of persons of which included the applicant: a member of Mamprusi ethnic group in the [B] region. I note that the country information referred to in the Tribunal’s decision included the conflict between the Mamprusi and Kusasi ethnic groups and the religious situation in Ghana. In this regard, I have regard to Kenny J’s comments in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 (at paragraph [50]):
[50] 50 In reaching this conclusion, it is helpful to consider other instances in which a similar question has arisen. One example is country information. It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant's claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal's decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information "just about" a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within par 424A(3)(a) of the Act… (emphasis added)
Therefore, the Tribunal had no obligation to provide the country information to the applicant prior to the hearing or the delivery of its decision.
Ground 4
It appears that ground 4 of the applicant’s application was copied from another case as it concerns another person. The application under this ground refers to the applicant being a citizen of Sri Lanka, that he was a member of the Independent Journalist Movement and that there was a differently constituted Tribunal. In this case the Tribunal noted that the applicant was a citizen of Ghana, that he received no education and his occupation prior to arriving in Australia was a farmer.
I therefore find that this ground must be dismissed.
Ground 5
The applicant’s fifth ground of appeal is set out as below:
PARTICULARS
(i) The Tribunal failed to make enquiry regarding the authenticity of the article naming the applicant as a victim of persecution.
(ii) The Tribunal failed to provide any evidence to support its finding that the article dated June 2008 was put on the internet in October 2010.
Section 427(1) of the Act sets out the powers of the Tribunal for the purpose of a review:
427 [Powers of the Refugee Review Tribunal etc.]
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation; or
(b) adjourn the review from time to time; or
(c) subject to sections 438 and 440, give information to the applicant and to the Secretary; or
(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
… (emphasis added)
The Tribunal’s power under s.427(1) to require an investigation to be arranged is discretionary. In particular, I have regard to Crennan J’s comments in VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 (at paragraph [27])
27 Following established authority, her Honour found that ss 424 and 427(1)(d) empowering the Tribunal to obtain information and require investigations are permissive not mandatory. The principles have been clearly explained. See: Dissanayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 976 esp. at [18]. The fact that the Tribunal did not use enabling provisions like s 424 (to seek additional information) and 427(1)(d) (to make further enquiries) does not indicate any error of law on its part See also: SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 598 esp. at [40]. (No issue concerning ss 424 and 427 arose in a subsequent appeal to the Full Court: SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397.)… (emphasis added)
In the circumstances of this case there was no simple enquiry available. There is nothing to indicate that the Tribunal’s discretion miscarried.
I accept the First Respondent’s submissions that the Tribunal did not make a specific finding as to when the article had been published. The Tribunal simply observed that it ‘appears to have been put on the internet in October 2010’: see paragraph [184] of the Tribunal’s decision. It is clear that the Tribunal did not accept that the internet item was evidence that was reliable, based upon its inherent qualities.
I therefore refuse this ground of appeal.
Ground 6
The applicant’s final ground of appeal is that the Tribunal failed to afford the applicant procedural fairness when it failed to give him an opportunity to answer the matters that went to his credibility. The Tribunal found the applicant’s claims with respect to the peace group ‘far-fetched’ (see paragraph [80] of the Tribunal’s decision) and the applicant’s account of the Kusasi targeting but missing him every time they attended his home ‘implausible’ (see paragraph [81]). The Tribunal also noted that the applicant gave ‘inconsistent’ evidence with respect to how received his leg injury (see paragraph [82]).
A finding of credibility is a function of the primary decision make. As McHugh J stated in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 (at paragraph [67]):
[67] In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the 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. (emphasis added)
I find no error on the part of the Tribunal in this regard.
Conclusion
In the circumstances the application should be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 22 November 2011
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