MZYPL v Minister for Immigration
[2012] FMCA 563
•29 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYPL v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 563 |
| MIGRATION – Review of Refugee Review Tribunal’s decision to affirm an earlier decision not to grant a protection visa – alleged breach of s.424A(1)(a) – whether information caught by s.424A – whether exemption applies (s.424A(3)(a)) – alleged finding without evidence – alleged failure to consider an integer of claim – application for review dismissed. |
| Migration Act 1958, ss.424A(1)(a), 424A(3)(a) |
| Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 178 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCACFC 82 WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 |
| Applicant: | MZYPL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1115 of 2011 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 6 March 2012 |
| Date of Last Submission: | 6 March 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 29 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Karapanagiotidis |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 4 August 2011, and later further amended, is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1115 of 2011
| MZYPL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By a Further Amended Application filed on 14 February 2012, the Applicant seeks to review a decision of the Second Respondent
(the Tribunal), made on 29 June 2011, which affirmed an earlier decision of the First Respondent’s delegate to refuse to grant a protection visa to the Applicant.
It is to be noted that the Applicant was one day out of time in respect of filing his initiating application, and further, the relief sought in the Further Amended Application did not include relief in the nature of a Writ of Mandamus directed to the Tribunal. The Applicant, at the outset, sought an extension of time and leave to amend the Further Amended Application to seek the necessary relief for which this Court has jurisdiction to grant. The First Respondent consented to both of those requests being granted.
Background
The Applicant is a 25 year old citizen of Ethiopia born in Addis Ababa. He arrived in Australia on 25 January 2010 and applied for a protection visa on 27 July 2010. On 4 February 2011, a delegate of the
First Respondent refused to grant the Applicant a protection visa, which refusal was reviewed by the Tribunal. The Tribunal determined on 29 June 2011 to affirm the decision not grant the Applicant a protection visa.
In support of his claims for protection, the Applicant relied upon two statutory declarations; one of which has deficient jurat particulars which simply describes the date of declaration being “the 26th day of 2010”. That declaration appears in the Case Book at pages 53 to 65. The other statutory declaration was that made on 8 April 2011.
In addition to those statutory declarations, the Applicant also relied upon his advisors’ submissions, dated 19 April 2012, and on country information that is set out in the Case Book between pages 177 to 208.
The above material set out the Applicant’s claims; which, in summary, supports his claim to fear persecution for reasons of his past involvement with the Coalition for Unity and Democracy (CUD) and for his political opinion in opposition to the Ethiopian Government, generally, but more specifically in his support for the Ginbot 7 Movement (G7). He also makes a claim of persecution based upon his ethnicity.
The factual matrix which the Applicant proffered in support of his claims for protection are as follows:
a)He joined the CUD while he was a university student at Bahir Dar University in January 2005;
b)After the elections in May 2005, won by the Ethiopian People’s Revolutionary Democratic Front (EPRDF), the EPRDF supporters on campus became violent towards the CUD supporters, resulting in the Applicant being physically beaten by them.
c)As a CUD member, he was involved in a protest at Bahir Dar University which saw him occupying a dormitory for three days and which ended in him being arrested by police.
d)He claimed to have been interrogated and beaten by police until unconscious, and that they kept him for five days. On the fifth day, they loaded him, with others, onto a truck and drove them to the Dedessa Prison Camp. The Applicant told the Tribunal that the trip to the Dedessa took three days, mainly travelling at night.
e)The Applicant claimed to have then been detained for almost six months from June until the end of December 2005.
f)
The Applicant was eventually released, for reasons unknown to him. After personal details and photographs were taken of him, he was returned to the police station in Bahir Dar, where he was required to attend every 15 days to sign an attendance record.
He said he was required to do this until he graduated from university in July 2008.
g)After returning to Bahir Dar from the Dedessa Prison Camp, the Applicant returned to university and applied himself to his studies, during which time he stopped his political involvement. He says further that he was denied enrolment at Addis Ababa University after completing his studies at the Bahir Dar University, because he was unable to produce evidence that he was a member of the EPRDF.
h)Consequently, he decided to study overseas. In furtherance of that ambition, the Applicant obtained a passport in March 2009 and a visa to study in Australia in December 2009.
i)
At the conclusion of his studies in Ethiopia, and before coming to Australia, the Applicant worked with his father in his textile business. It was during this time that the Applicant became involved in G7, around March 2009, as a supporter. G7 was a movement established by Dr Berhanu Nega, who was a former Mayor elect of Addis Ababa, and one of the founders of CUD. G7’s policy was said to be directed to doing everything in their power so that they could change the Government peacefully, but they were willing to resort to military action, if they had to.
G7 became a significant movement that challenged the Government of the day in Ethiopia.
j)The level of the Applicant’s involvement in G7 was to print and distribute articles for the movement and also to fund raise.
k)The Applicant claims that the authorities detained his father and brother-in-law because of their support for G7. He also claimed that a friend of his was killed by Ethiopian officers. This claim was made for the first time during the Tribunal hearing.
l)
Accordingly, the Applicant was fearful that if he returned to Ethiopia, the authorities would prosecute and kill him because they have him on record and know he is a supporter of G7.
He also recites a telephone conversation with his mother when he was in Australia in which she urged him not to return for fear of his life.
m)
In addition, the Applicant also claimed to have suffered discrimination in Ethiopia, by reason of his ethnicity.
The Applicant’s mother is of Tigrinya ethnicity, and his father is of Gurage ethnicity.
The Tribunal’s Findings
The Tribunal accepted that the Applicant had joined the CUD in early 2005, and that he had become involved in student politics leading up to the elections on 15 May 2005.
The Tribunal also accepted that there were protests at Bahir Dar University after the elections; that the Applicant was involved in the protests; and that he was later arrested and detained at the local police station and interrogated.
Significantly, however, the Tribunal did not accept that the Applicant was arrested and detained for six months at the Dedessa Prison Camp. The Tribunal rejected this claim for the following reasons:
a)There was no country information in support of the Applicant’s claim that numerous protestors from Bahir Dar University were transported and detained in the Dedessa Prison Camp.
b)The Tribunal did not accept that it took three consecutive nights for the Applicant to be driven from Bahir Dar to the Dedessa Prison Camp, and that the distance said by the Applicant to have been travelled to get there was inaccurate and the likely travel time was between 91/2 to 11 hours.
c)Some of the Applicant’s evidence incorporated publicly available details of country information verbatim, but out of context, and the Tribunal found that some of the Applicant’s statements were extracted from these sources, rather from the Applicant’s own experiences and recollections.
d)The Tribunal did not consider plausible the Applicant’s claim to have returned to Bahir Dar University after six months of detention, and yet be able to complete his studies and treat himself with only traditional medicines for the injuries said to have been suffered.
e)As a consequence, the Tribunal did not accept that the Applicant was charged with offences after his release or that he was required to report to the police station as suggested, or that his father had been transferred to Addis Ababa as alleged.
f)The Tribunal did not accept that the Applicant was unable to enrol at Addis Ababa University because he was not a member of the EPRDF.
g)In addition, the Tribunal did not accept that the Applicant had been involved with the G7 movement in Ethiopia. The Tribunal rejected his claim for the following reasons.
i)The Applicant’s knowledge of the inception and development of G7 and it’s objectives was “extremely limited”.
ii)Some aspects of the Applicant’s evidence about his G7 involvement were “inconsistent and implausible”.
iii) The Tribunal did not accept that the Applicant was distributing G7 materials to a network of some 5000 people, and considered the inconsistency in the Applicant’s evidence, concerning his possession of a G7 membership card when arrested by police as having “raised doubts as to the veracity as to this aspect of his evidence”.
The Tribunal did not accept that the Applicant’s father and brother-in-law had been detained because of the family support for G7 or that his sister had been interrogated, or that she told the Applicant that a friend that he had worked with in the movement had been detained.
The Tribunal did not accept that the Applicant suffered any ethnically based persecution. The Tribunal considered the Applicant’s evidence to be “extremely vague and lacking in detail”.
In assessing whether the Applicant would be at risk of future harm for reason of his actual or imputed political opinion, the Tribunal found that he would not be politically active in the G7 movement, if he returns to Ethiopia, nor was there a chance he would be persecuted in the reasonably foreseeable future by the Ethiopian authorities.
The Tribunal concluded:
“The Tribunal has considered the applicant’s claims, both individually and cumulatively, and does not accept that the applicant faces a real chance of persecution now or in the reasonably foreseeable future, for any Convention reasons, including the Applicant’s profile as a Ginbot 7 member or supporter, his former political association with the CUD, and actual or imputed political opinion in opposition to the Ethiopian Government, his ethnicity or for any other Convention reason”.
Grounds for Review
In his Further Amended Application, the Applicant set out three grounds of review.
Ground 1
The first ground is an alleged breach of s.424A of the Migration Act 1958 (the Act) in that the Tribunal failed to provide the Applicant with information so as to afford him an opportunity to respond or comment on, which information the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review.
The particulars relied on in support of this ground are:
a)The Tribunal did not accept that the Applicant had been detained at the Dedessa Prison Camp.
b)The Tribunal rejected that aspect of his claims for several reasons, including the Tribunal’s concerns:
i)About the distance from Bahir Dar to the Dedessa Valley and the time said by the Applicant to have been taken to get there;
ii)About the similarities between the Applicant’s claims and those by other people, as documented in country information;
c)The Tribunal failed to raise the above issues and/or the information relied upon with the Applicant for a response or comment when that information was information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that was under review.
d)The Tribunal was not otherwise exempt from its disclosure obligations by operation of s.424A(3)(a).
Ground 2
This ground alleges that the Tribunal made a finding without evidence; namely, that the country information did not support the Applicant’s claims that numerous protesters from Bahir Dar University were detained in the Dedessa Prison Camp.
The particulars relied on in support of this ground are:
a)Part of the reason for rejecting the Applicant’s claim of detention at Dedessa was because the country information did not support this particular claim that numerous protestors from Bahir Dar University detained in the Dedessa Prison Camp.
b)The finding of the Tribunal was a critical finding in its ultimate conclusion that the Applicant was not detained at Dedessa.
c)The positive finding made by the Tribunal in this regard was unsupported by the evidence before it.
Ground 3
This ground relies on an alleged failure of the Tribunal to consider an integer of the Applicant’s claims and/or relevant considerations; namely, whether the Applicant had a well founded fear of persecution by reason of his involvement with the CUD and his past persecution. The particulars relied on in respect of this ground are:
a)The Tribunal accepted the Applicant’s claims to have previously been a member of the CUD, of protesting at the Bahir Dar University and of later being arrested, detained and interrogated at the local police station.
b)There was also country information before the Tribunal which suggested that CUD “activists” would be at risk of torture upon return to Ethiopia.
c)The Tribunal failed to make a finding as to whether the Applicant had suffered past persecution and whether the Applicant was an “activist”.
d)In assessing the Applicant’s future risk of persecution, the Tribunal failed to consider whether the Applicant had a well founded fear of persecution by reason of his involvement with the CUD and his past persecution.
The Submissions and determination
I have had benefit of the Applicant’s written Contentions of Fact and Law and the First Respondent’s written submissions. In addition, both Counsel appearing made verbal submissions addressing the issues in this matter.
First Ground
In respect of the first ground, in short, the Applicant contended that two specific pieces of information, which formed the reason, or part of the reason, for the Tribunal to, in effect, make adverse credibility findings should have, pursuant to s.424A(1)(a) of the Act, been provided to the Applicant for a response or comment prior to the determination.
The first of those two items of information has been categorised by the parties as the “Google Maps information”. The Tribunal made reference to its investigation of Google Maps to determine the distance from Addis Ababa to the Dedessa Valley with a view to verifying, or otherwise, the evidence given by the Applicant as to his understanding of that distance. The Applicant’s understanding was it was some 375 kilometres, whereas the Google Maps provided information to the effect that it was between 641 and 835 kilometres. In addition, the Applicant’s evidence was that it took three days travel, principally at night, to reach the destination. Google Maps estimated the travel time to be between 91/2 and 11 hours. It is to be noted that the Tribunal made a focus of its questioning about distances and the time to travel there in the hearing, and questioned the Applicant as to his precise statement about distance. It is not unfair to say, in my view, that it was manifestly done in a way to test the credit of the Applicant.
The discrepancy between the information provided by Google Maps and the nature of the Applicant’s evidence as to distances and time it took to travel was such as to cast the Applicant’s evidence, both in respect of this specific aspect of his evidence, but more generally in relation to his evidence about being detained for six months in the Dedessa Prison Camp, in doubt. It was contended by the Applicant, with which contention I concur, that the only useful purpose of that information was to impeach the credibility of the Applicant. But that, in my view, is the nature of such inquiries; namely, to test the claims made.
The second item of information, more generally described as internet searches, relates to the use of two pieces of information used by the Tribunal to again support the Tribunal’s assessment of the Applicant’s credibility. They were a report taken from The Guardian that made reference to an Ethiopian detainee by the name “Dereje” who recounted his experience of travel inside a truck from Addis Ababa in 2005 to the Dedessa Prison Camp, and on which travel he witnessed the suffocation of a fellow detainee. The other item of information was a blog site report, where an unnamed former detainee at Dedessa gave an account of overhearing a conversation between prison guards that there were over 43,000 detainees in the prison.
The Tribunal through the use of this information from these publicly available sources (that is, from The Guardian and the Waterloo blog site) was of the view that they were so similar to the Applicant’s claims that the Tribunal found that the purported claims of similar experiences by the Applicant, in effect, were not those he personally experienced, but those he sought to utilise to buttress, if not, substantiate, his claims of imprisonment at the Dedessa Prison Camp.
In respect of the Dedessa Prison Camp, the Applicant highlights that the Google Map and The Guardian searches were made in May 2011, which was prior to a second hearing afforded to the Applicant, at which second hearing, the Applicant contends such doubts raised in the Tribunal’s mind, as a consequence of this information, should have been put to the Applicant for his response or comment. For instance, the Applicant contended that had it been done, he could have told, perhaps, of a shared experience with the person identified as Dereje or he could have responded to the direct question of whether he had access to these pieces of information. What his response might have been is pure conjecture, but the issue from the Applicant’s point of view is that there was, first a breach of s.442A(1)(a) for he was denied an opportunity to respond to information which was the reason, or part of the reason, for the Tribunal’s decision on the pivotal issue of his credibility.
The First Respondent’s written contentions gave the appearance that there was a concession that the information set out above was information that at first instance was captured by s.424A(1)(a), because the general thrust of the First Respondent’s submissions was to rely on the exemption pursuant to s.424A(3)(a). Any inferential suggestion that that was the case was disavowed by the
First Respondent in verbal submissions, when the First Respondent took the position that first, the information as so described above (or part of it) was not caught by s.424A(1)(a) as it was information that arose after the hearing and that the High Court’s decision in SZBYR v Minister for Immigration and Citizenship[1] was relevant and has application; but should that not be the case, then s424A(3)(a) provided an exemption.
[1] [2007] HCA 26
The Applicant relied heavily upon the reasoning of Buchanan J in SZLIQ v Minister for Immigration and Citizenship[2] which case concerned an applicant for a protection visa who was a grower of sweet potatoes in China and who gave evidence of how she grew them there which conflicted with information gleaned after a hearing by the Tribunal from a book on vegetable growing. His Honour stated at [18] that:
[2] [2008] FCA 1405
“In my view it is clear that the information upon which the RRT relied was not excluded by s.424A(3)(a) because it was neither about the appellant specifically nor about a class of which she was a member to which s.424A(3)(a) could conceivably apply. The information was not ‘country information’ about China.
It had nothing to do with persecution on Convention grounds.
It was about growing vegetables in Australian home gardens by Australian gardeners. Its only use was to impeach the credibility of the appellant.”
In the same way the Tribunal used information from Google Maps and The Guardian and blog-sites to impeach the credibility of the Applicant, it was contended the Tribunal committed the same jurisdictional error as found by Buchanan J in SZLIQ. The Applicant relies on his Honour’s interpretation that, in effect, there is a second criterion under s.424A(3)(a) and that, in effect, an exemption does not apply if the information is just about class of persons; and otherwise, if not caught by this criterion, s.424A(1)(a) is enlivened. The Applicant also seemed to imply that if such was “only used to impeach the credibility of the” Applicant, that was an aspect indicative of its inappropriate use.
The First Respondent relied principally upon the decision in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[3] and contended the information was information that was not information specifically about the Applicant and therefore is exempt by the operation of s.424A(1)(a). The Full Court decision in VHAP clearly states that the so called second criterion is not a second criterion, but merely an expression designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it.[4]
[3] [2004] FCACFC 82
[4] See also Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 178
In any event, I note that Buchanan J in Minister for Immigration and Citizenship v SZLSP[5] distinguished his decision in SZLIQ, which distinction makes the facts of that case more inline with the facts of this case, where he said:
“In SZLIQ … I decided that the undisclosed use by the RRT of an Australian book about growing vegetables in home gardens to evaluate commercial potato growing practices in China led it into jurisdictional error. However, that judgment is distinguishable from the present case. In SZLIQ the use by the RRT of an Australian home gardening book bore no apparent relevance to an understanding of commercial potato growing practices in China, or to an assessment of that appellant’s knowledge about such practices. In the present case the text used by the RRT as the basis of its questions, although unidentified, was understood by the first respondent to reflect the teachings of Falun Gong. His answers were given with an evident appreciation that his knowledge of Falun Gong teachings and practices was being compared with what the text disclosed.”
[5] (2010) 187 FCR 362
Thus adopting the reasoning process of Buchanan J in SZLSP, when applied to the Applicant’s case where the Tribunal was focused on questions about distances and time taken to travel from Bahir Dar to the Dedessa Prison Camp, the same outcome is inevitable; namely the information used does not enliven s.424A(1)(a) as it is exempt under s.424A(3)(a). The dynamic of the questioning by the Tribunal is informative, in my view, of the fact that the issues of distance travelled and time taken were designed to test the Applicant’s claims and he cannot be taken by surprise by the Tribunal making enquiries to either confirm, or refute, that evidence.
In relying on SZBYR, the First Respondent proceeded to develop an argument that the information in question was not caught by s.424A(1)(a) as it went to the Tribunal’s reasoning process which centred on the inconsistency in the Applicant’s evidence and readily available sources of information. Whether this argument has merit, I need not explore as I am satisfied that, even should the information otherwise enliven s.424A(1)(a), the exemption unders.424A(3)(a) has application.
In respect of the Google Maps information, it was clearly not related to the Applicant or any other person. In respect of The Guardian article referring to Dereje , the Applicant attempted to argue that it did relate specifically to “another person” and was therefore not exempt. To that I say, the relationship between Dereje and the Applicant is not direct, and the information merely names the informant of an event that the Tribunal found replicated to a significant degree in the claims made by the Applicant.
In similar fashion, the information that relates to an unnamed detainee at Dedessa Prison Camp about the number of detainees there is not about the Applicant or any other person with direct association or relevance to the Applicant.
Further, in respect of the other information gleaned from blog-sites, the First Respondent contended that it was not evident that the information, particularly The Guardian article, could be considered to be the reason, or part of the reason for a critical finding as the article was not before the Court to assess and evaluate its content and that therefore s.424A(1)(a) was not enlivened. Be that as it may, I am satisfied that even if it was otherwise, the exemption nonetheless applies to this information in the same way it applied to the Google Maps information.
The information referred to by the Tribunal, in my view, is exempted from the operation of s.424A(1)(a) and this ground is not established.
Second Ground
In respect of the second ground, where it is alleged the Tribunal made a finding without evidence, that finding was said to be the Tribunal’s determination that the country information did not support the Applicant’s claim that he, being a protestor after the general elections in May 2005, was detained with other protestors from the Bahir Dar University in the Dedessa Prison Camp. The Applicant’s contention was that the Tribunal member made a positive determination that there was no country information supportive of the suggestion that Bahir Dar University students were interred in the Dedessa Prison Camp. In my view, the Applicant’s contentions in this regard do not pay due regard to the context in which the Tribunal made reference to the country information lacking details in relation to the Applicant’s claim in this regard. On a fair reading of the Tribunal’s reasons, in my view, the reference to no country information should be taken merely as a supportive statement that buttresses its finding in respect of the Applicant’s credit, and is used as a measure of the plausibility of his claims. In my view, the comments made by the Tribunal, as I have indicated, cannot be considered findings of fact, such as “no students were taken to the Dedessa Prison Camp” or, indeed, that there was a finding that country information contradicted the Applicant’s claim. The Tribunal was entitled to find that there was no country information supported the Applicant’s claim on numbers in circumstances where one could reasonably, in my view, be entitled to expect that the country information would be available to support the Applicant’s claim.
The Tribunal simply concluded that there was no country information to back up these claims.
There was no legal error in the Tribunal’s approach and it cannot be said that the Tribunal had “no evidence” to make this finding. It is a confused contention on the part of the Applicant, and is reflective, in my view, of the approach warned against in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[6]. Accordingly, the second ground must fail.
Third Ground
[6] (1996) 185 CLR 259
In respect of the third ground, where it was alleged the Tribunal failed to consider an integer of the Applicant’s claim in that the Tribunal failed to assess the implication’s of the Applicant’s past persecution, when considering the likelihood of the Applicant suffering persecution in the future. It is alleged that there was no consideration by the Tribunal of the past persecution suffered by the Applicant arising from his previous membership and involvement with the CUD.
In support of that ground, the Applicant contended the Tribunal did not:
·make any finding as to whether the Applicant was an “activist”, or would be considered an activist in light of his past experiences;
·make a finding as to whether the Applicant had suffered serious harm in the past. The Applicant contended that his claims, which in large part, save for detention at the Dedessa Prison Camp which was rejected, necessarily came within the definition of “serious harm” as provided for in s.91R(1)(c) of the Act; and
·consider whether the Applicant had a well founded fear of persecution, by reason of his involvement with CUD, including having suffered persecution in the past.
The Applicant contended that the summary findings set out in [10] of the Tribunal’s decision - that the Applicant did not face a well founded fear of persecution by reason of his “former political association with the CUD” - did not sufficiently address the Applicant’s claims before the Tribunal. The Applicant contends that the Tribunal failed to assess the implications of the Applicant’s past persecution when considering the likelihood of the Applicant’s suffering persecution in the future.
The Applicant’s contentions in this regard are made, in my view, without giving due regard to a fair reading of the decision, and again, falls into the trap exposed in Wu Shan Liang .
The Tribunal referred to country information that suggested that in May 2006, Amnesty International believed that:
CUD activists and suspected activists at national or local level ... who have fled the country on account of experienced or threat to human rights violation, would be those who are at risk of arbitrary and indefinite detention, possible torture or ill treatment, unfair trial or even extrajudicial execution, if forcibly removed to Ethiopia.
The fact that the Tribunal did not specifically refer to the above country information in its findings is consistent with the inference that the Tribunal did not find that the Applicant had “fled” Ethiopia on account of “experienced or threatened human rights violations”, such as having being beaten until he was unconscious in connection with his association with the CUD, or having spent 6 months interned at the Dedessa Prison Camp. The Applicant clearly did not fit, on the basis of the Tribunal’s findings, into that category that the country information described as having “fled” Ethiopia and would, if returned, face persecution.
With respect to the period following the student protests in 2005 at the Bahir Dar University, the Tribunal found that, contrary to the Applicant’s claim of having been transported to the Dedessa Prison Camp, where he was detained and persecuted for approximately six months, the Applicant had maintained his university studies. Contrary to the notion that the Applicant had “fled” Ethiopia following his arrest, detention and interrogation in 2005, the Tribunal found that the Applicant had arrived in Australia almost five years after this event in January 2010. The Tribunal also specifically rejected the Applicant’s various claims to have suffered persecution in the period leading up to his arrival in Australia.
The First Respondent contends, with which contention I agree, based upon a fair reading of the whole of the decision of the Tribunal, that it may be inferred that the Tribunal did not accept the Applicant’s claim that had been “beaten until he was unconscious” by the police in 2005. That claim was made as part of a broader story of having been a victim of persecution, including the infliction of serious harm at the hands of the Ethiopian authorities, at the time arising from his association with the CUD – a claim which the Tribunal identified and accepted in [128] of its decision, as follows:
The tribunal accepts that the Applicant’s claim to have joined the CUD in early 2005, and accepts that he became involved in student politics in support of that party in the ensuing months leading up to the May 15 elections. The tribunal accepts that there were protests at the Bahir Dar University after the elections and that the Applicant was involved in these protests, and that he was later arrested, detained at the local police station and interrogated.
The other aspects of the Applicant’s claim were wholly rejected by the Tribunal, based upon its adverse assessment of the Applicant’s credibility. In my view, the fact that the Tribunal did not refer to these specific elements of the Applicant’s story in its findings should not give rise to the conclusion that the Tribunal accepted them. Nor should it be concluded that the Tribunal did not consider them.
I am satisfied that the Tribunal gave full regard to the Applicant’s claims and gave full consideration as to whether the Applicant had a well founded fear of persecution for reason of his actual and imputed political opinion in the reasonably foreseeable future if he was to return to Ethiopia. The Tribunal also noted the conflicting evidence given by the Applicant as to is his intention not to be “politically active in the future”, stating that this raised:
“doubts about the veracity of the Applicant’s evidence regarding ... his claim to have an ongoing passion for political change in Ethiopia”.
More specifically, having considered the Applicant’s claims, both individually and cumulatively, the Tribunal did not accept that the Applicant faced a real chance of persecution, now or in the reasonably foreseeable future for a Convention reason, including “his former political association with the CUD” or an actual or imputed political opinion in opposition to the Ethiopian Government.
In my view, it cannot be said that the Tribunal failed to consider whether the Applicant was an “activist”, nor that there was a real chance that he would be persecuted by reason of he being, or being perceived to be, an “activist” in the future.
The third ground is not made out.
Conclusion
For the above reasons, the three grounds relied on are not made out and the application filed on 4 August 2011, and later further amended, should therefore be dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Date: 29 June 2012
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