MZYWY v Minister for Immigration
[2012] FMCA 1107
•29 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYWY v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1107 |
| MIGRATION – Application for judicial review of Refugee Review Tribunal decision – four grounds pressed – some grounds and submissions difficult to construe – adverse credibility finding by Refugee Review Tribunal open to it – no breach of natural justice obligations – no jurisdictional error shown. |
| Migration Act 1958 (Cth), ss.424AA, 424A, 424A(3), 425 |
| NABE v Ministerfor Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 SZYPR and Anor v Minister for Immigration and Citizenship and Another (2007) 96 ALD 1 |
| Applicant: | MZYWY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 413 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 12 October 2012 |
| Date of Last Submission: | 12 October 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 29 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sorensen |
| Solicitors for the Applicant: | Goz Chambers Lawyers |
| Counsel for the First Respondent: | Mr Knowles |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 413 of 2012
| MZYWY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By his application filed 12 April 2012, the applicant raises four grounds of challenge to a decision of the Refugee Review Tribunal (“the Tribunal) dated 20 March 2012.
For the reasons that follow, I do not think that the applicant’s grounds are made out and, therefore, the application must be dismissed.
Factual background
It is uncontroversial that the applicant is a citizen of Ghana who studied in Malaysia between 2007 and 2009. In February 2009, the applicant applied for a tourist visa (CB1-31) and in that application stated inter alia that he was married. He appended a letter from his wife (CB17) dated 3 February 2009, and this relevantly asserted:
“We have been married since 25th April, 2005 and we have been happy together till now. His coming here to further his studies encouraged me to also come over to do doctorate degree which I started last year at University Malaya.
He wants to go to Perth for holidays and I have no objection at all to it as I know him as a good and committed husband. I will be alright since he will be away for just two weeks. I would have loved to go with him but my semester has just started as am in a government institution.”
The applicant arrived in Australia on 10 March 2009 using his tourist visa and that visa was valid until 10 June 2009 (CB88-90). The applicant remained in Australia notwithstanding the expiration of his visa and applied for a protection visa on 14 October 2010. In the protection visa application, the applicant asserted that he was divorced on 19 February 2009 in Accra in Ghana (CB33).
In a statutory declaration included with his application (CB84-87), the applicant referred to his membership of a political party in Ghana called the New Patriotic Party (NPP). He also referred to his involvement in a project called the Greening Ghana Project, and detailed his assertions that he was required to inflate his invoice for work done for that project by 40 per cent.
The project completed in December 2006 but the applicant was not paid for the work he did for the project. He left Ghana on 30 January 2007 to attend university in Malaysia.
The statutory declaration went on to say that in September 2010, the applicant’s father called him in Australia to tell him that men from the police had come to search for him in relation to alleged receipt of large amounts of money in relation to the Greening Ghana Project. He asserted that:
“19. Since September 2010 I have discovered that the government has been waiting for me to arrive in Ghana where I will be arrested and charged with a false allegation of causing financial lose to the state. I know it will be impossible to prove my innocence about the allegations because the charges are politically motivated.
20. I say that I delayed making this application because I had the intention of going back to Ghana to secure a visa to be able to continue and finish my studies.”
It is important to note that the claims thus articulated by the applicant amounted to a fear of persecution on the basis of his membership and activities as a member of the NPP and/or to a, to an extent interrelated, risk of persecution because of his involvement with the Greening Ghana Project from the National Democratic Congress (NDC).
The Tribunal’s decision
The Tribunal commenced by summarising the application and the relevant law in terms that have not been the subject of criticism.
The Tribunal continued in paragraphs 19 (CB240) and following to record the claims and evidence advanced by the applicant.
The Tribunal recorded the remarks set out in paragraphs 14 and 15 of the applicant’s statutory declaration, which record that when he arrived in Australia and attended at the University of Ballarat he received a message from his ex-wife that she was closing down his business and that the other staff were terrified and had left and that she “has filed and granted a divorce as she has found another man and was moving on”.
The applicant had also deposed that he had met a Ghanaian woman named Irene and that he was in a relationship with her.
Otherwise the matters raised were as I have, admittedly broadly, paraphrased in paragraphs 5 to 8 above.
The Tribunal then set out (paragraphs 29 and following CB 245-247) country information including information about the NPP and the Greening Ghana Project.
The Tribunal then set out (paragraphs 41 and following CB 247-253) its account of the Tribunal hearing. This recorded what the applicant had told the Tribunal.
The matters recorded included:
a)the applicant had submitted only one invoice for about three weeks’ work submitted in about November 2006 from the Greening Ghana Project (paragraph 48 CB249);
b)the applicant told the Tribunal that his wife remained in Ghana and was supposed to supervise the business, and that he had been unaware of any difficulties relating to the invoice while he was in Malaysia (paragraph 51 CB249);
c)in response to a question from the Tribunal about whether the relationship with his ex-wife had ended when he travelled to Malaysia, the applicant stated they were still communicating and everything looked normal until after the incident in the office, telling the Tribunal that his ex-wife told him in January 2009 that some people came into his business office in Ghana saying they were looking for documents. She had told him that she could not go through this anymore and that she had to move on and he understood it to be connected to the people visiting his office (paragraph 52 CB249);
d)in response to a question from the Tribunal as to whether his wife had joined him in Malaysia, the applicant stated that she travelled to visit him in 2008 staying for about three months and that one of the reasons she came to Malaysia was to see if they could sort out their relationship issues. The Tribunal asked the applicant if she worked or studied in Malaysia and the applicant stated that she started doing a PhD at the University of Malaya but she abandoned her studies and did not finish (paragraph 53 CB250);
e)the Tribunal put country information about the Greening Ghana Project to the applicant (paragraph 8 CB250); and
f)the Tribunal put country information about the NPP to the applicant (paragraph 59 CB250).
At paragraph 68 (CB253) and following, the Tribunal set out its findings and reasons. The Tribunal accepted that the applicant was a citizen of Ghana. The Tribunal also accepted the applicant’s evidence that he did three weeks’ work for the Greening Ghana Project and that he submitted his only invoice for payment in about November 2006.
The Tribunal accepted the applicant’s oral evidence that he was asked by members of the secretariat to increase the amount in his invoice noting that this practice was consistent with country information.
The Tribunal accepted the applicant’s evidence that he refused to do so and was later told that his invoice would be added to the invoices of other subcontractors on the basis that it was a small amount.
The Tribunal accepted the applicant’s evidence that the Chief Executive Officer of the Greening Ghana Project and other high profile persons were charged under financial loss laws, noting once again that this was consistent with country information.
Critically, however, for the applicant, the Tribunal did not accept him as being a credible witness. At paragraphs 80-83 (CB255) the Tribunal said:
“80. The Tribunal’s concerns about the applicant’s credibility stem in large part from inconsistencies between the information contained in his protection visa application and his earlier tourist visa application. In particular, the Tribunal was concerned that the applicant stated in his written claims for his protection visa and in his oral evidence at the Tribunal hearing that people visited his business in Ghana in January 2009, speaking to his wife and telling her that they were acting on behalf of the Secretariat and looking for documents. As a result of this incident, the applicant claims that his staff became scared and left and his wife closed down the business, applied for a divorce and has since married another man.
81. However the applicant lodged in support of his tourist visa application a letter from his wife dated 3 February 2009, in which she states that the applicant is her husband, that they are happy together and that she has joined him in Malaysia where she is doing a doctorate degree. In that letter, she gives her address as the same address as that given by the applicant in his tourist visa application.
82. When this inconsistency was put to the applicant pursuant to section 424AA at the hearing, the applicant denied there was an inconsistency, stating that he had told the Tribunal that his ex-wife came to Malaysia to study. When the Tribunal put to the applicant that he had stated that his ex-wife came to Malaysia for three months in 2008 but that the letter from his ex-wife was dated 3 February 2009, the applicant stated that he did not tell the Tribunal that his wife came in 2008 and that his wife was in Malaysia at the time he had made the application for a tourist visa.
83. Having listened again to the hearing recording, the Tribunal is satisfied that the applicant gave evidence that his ex-wife visited him in Malaysia for three months in 2008. However even if that were a genuine mistake, the Tribunal considers the timing of the applicant’s ex-wife’s visit to Malaysia to be significant, because if she was living happily with the applicant and studying in Malaysia on 3 February 2009 as stated in her letter, she could not have been running his business in Ghana in January 2009 when he claims it was visited by men acting on behalf of the Secretariat who were looking for the applicant and seeking documents. Even if the applicant’s ex-wife was merely visiting the applicant for three months as stated in his oral evidence, she could not have been present in Ghana in January 2009 given that the applicant arrived in Australia on 10 March 2009. On the evidence before it, the Tribunal is not satisfied that the incident described by the applicant as taking place in January 2009 ever took place.”
The Tribunal went on at paragraphs 84 and following to build upon this credibility finding and to dismiss accordingly the applicant’s versions of other events including alleged difficulties in September to November 2010. At paragraph 84 (CB256) the Tribunal said:
“In making this assessment, the Tribunal notes that country information does not suggest that any of the persons contracted to provide services to Greening Ghana have been charged under the financial loss laws, rather that country information suggests that many of those contractors have taken action against the government seeking to be paid what they owed which does not in the Tribunal’s view indicate that they were afraid of being charged. In these circumstances the Tribunal does not consider it plausible that the applicant should be targeted in this way, particularly given his evidence that he submitted one invoice for three weeks work and that it was considered by the Secretariat to be a very small invoice.”
The Tribunal went on at paragraphs 85 and 86 to say:
“85. The Tribunal has also considered the applicant’s claims that his position is different from that of the other contractors in that he will be targeted because of his membership of and work for the NPP in 1999 and 2000. On the basis of country information provided by the applicant and from information which is before the Tribunal from other sources, the Tribunal accepts that there is considerable animosity between the NDC and the NPP and that some high-profile members belonging to the NPP may be targeted for adverse attention from the ruling NDC because of alleged corrupt practices. However the Tribunal does not accept that the applicant is such a high profile person.
86. In making this assessment, the Tribunal accepts the applicant’s evidence that he was became (sic) involved in the youth activities of the NPP when completing his studies in 1999. The Tribunal further accepts that after he finished his studies in June 2000, the applicant actively participated in the election campaign leading up to the December 2000 election. The Tribunal accepts that after that election, the applicant continued to attend party gatherings until he relocated to Accra. However these matters do not lead in the Tribunal’s view to a conclusion that the applicant is a high-profile NPP member. Rather, the applicant’s evidence is that he is not a well-known person and that he lived in Ghana without incident up until the time he left in January 2007. On the applicant’s own evidence, the contract that he was awarded under the Greening Ghana project was for a period of three weeks work and was for an amount of money considered small by the Secretariat. The applicant gave evidence that even at the time he arrived in Australia in March 2009 he intended to return to Ghana after his holiday and apply for a student visa offshore. On the evidence before it, the Tribunal does not accept that the applicant is a high-profile NPP member nor that he has a profile such as would attract adverse attention from the ruling NDC.”
The Tribunal went on to dismiss the applicant’s claim.
The particulars in the application, Ground 1 – the Tribunal failed to consider the applicant’s claim that while in Ghana he was a member of the New Patriotic Party (“NPP”) despite the second respondent’s finding that there is considerable animosity between the NDC and the NPP and that some members of the NPP may be targeted for adverse attention from the ruling NDC because of alleged corrupt practices.
The matter complained of in Ground 1 itself is that the Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction.
The matters supporting this aspect of the application are set out at paragraph 20 of the applicant’s written submissions.
Paragraph 20 reads:
“The RRT failed to consider the Applicant’s membership of the NPP by virtue of failing to adequately identify the consequences of membership of the NPP the Applicant contends give rise to his fear of persecution by reason of his political opinions. In this respect, it is noted/contended that the RRT:”
There follows a series of five dot points. These put various matters including a suggestion that the Tribunal’s findings in relation to the relationship with the wife was based on insufficiently probative material and illogical grounds and including, failure to address the applicant’s claim that he was charged with respect to a crime in Ghana which happened when he was not in the country, failure to address his claims by virtue of the economic impact on the applicant or other members of the NPP and complaint of the use of country information.
In oral submissions, it was submitted that the Tribunal failed appropriately to consider the applicant’s membership of the NPP and asserted that the matter was impermissibly foreclosed.
In my view, the submission of the first respondent should be accepted. The applicant’s membership of the NPP was considered in detail at paragraphs 85-87 of the decision referred to above. The fact is there was cogent evidence upon which the Tribunal could reach the findings it did in relation to the applicant’s relationship with his wife and the inconsistencies in it (a matter to which I shall return). The Tribunal was never asked to consider the economic effects upon the applicant of the matters about which he complained, nor did they emerge as a discrete question on the materials as a whole (see NABE v Ministerfor Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [60]).
The fact is that the applicant left Ghana in 2007 when he had not been paid for three weeks’ work. As a matter of practical politics, the Tribunal’s finding that this would be unlikely to give rise to Convention persecution was well-open to it. The Tribunal did not exceed or fail in exercising jurisdiction in making the finding it did.
I will deal further with the question of country information under the other grounds.
Ground 2 (Particulars):
The second respondent 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) that the applicant has been falsely charged for a crime which is politically motivated when he is not even in that country; and
b) the second respondent’s allegation or suspicion that the timing of the applicant’s ex-wife’s visit to the applicant in Malaysia was significant to the applicant’s claim.
The substance of Ground 2 is not altogether easy to discern.
Further, as with the matters asserted in relation to Ground 1, the written submissions at paragraphs 21 to 30 of the applicant’s written submissions are somewhat scattergun and hard to follow.
Insofar as the complaint concerns an alleged failure to give the applicant sufficient opportunity to comment on the alleged inconsistency between his application for a protection visa with the contents of the letter from his ex-wife submitted with the tourist visa, in my view this is completely misconceived.
It is clear from the matters recorded in the Tribunal’s decision at CB249-50 (paragraphs 51-53 and 64 & 66) that the inconsistencies identified by the Tribunal in relation to these matters were clearly put to the applicant who had an opportunity to comment on them.
Insofar as the applicant complains that he faced criminal charges in Ghana, the Tribunal put the relevant country information to him for his comments (CB250-251, paragraphs 58-59).
In my view, it is clear that the Tribunal complied with its obligations pursuant to the Migration Act 1958 (“the Act”) and in particular those arising out of ss.424AA, 424A and 425.
(The remainder of this page has been deliberately left blank)
Ground 3 (where first appearing)
The second respondent erred in that the Tribunal misconstrued and misapplied the definition of “refugee” and “persecution” as provided for in section 91R of the Migration Act 1958 in that it failed to consider the economic aspect of the Applicant’s claim.
Particulars:
The second respondent accepts that the applicant moved to Accra to run his business in about 2005, and in 2006 he was awarded a contract under the Greening Ghana Project.
The second respondent accepts that the applicant was asked by members of the secretariat the amount set in his invoice, which the applicant refused to consent to, but his invoice was increased anyway and submitted without his consent.
The second respondent further accepts that the applicant’s invoice was not (sic).
These matters are dealt with at paragraphs 31 to 35 of the applicant’s submissions. The kernel of them is paragraph 31 as follows:
“It is submitted that the RRT misconstrued and/or misapplied this definition of: “Persecution” and hence the definition of “Refugee” by failing to consider the economic aspects of his claims. Specifically, it failed to consider whether his account of non-payment of an invoice for work under a program of a previous NPP Ghanian (sic) Government contributed to a well-founded fear of persecution …” (the submission goes on to refer to factual matters, some of which the Tribunal did not accept in any event).
Here in my opinion, once again, the submissions of the first respondent should be accepted. The applicant simply did not claim before the Tribunal that he faced Convention-protected persecution on the basis of economic activity. Rather, his complaint was that he faced the risk of prosecution for asserted misconduct in relation to the Greening Ghana Project because of his membership of the NPP.
The Tribunal found that the applicant did not have a sufficiently significant profile to face persecution on the grounds of his NPP membership. This finding, in my view, was both open to the Tribunal and extended to cover this aspect of the applicant’s claim.
Ground 3 (where second appearing)
The second respondent in arriving at the Tribunal’s decision failed to afford procedural fairness to the applicant in that it did not provide the applicant with information required under section 424A of the Migration Act and the failure to do so constituted jurisdictional error.
Particulars
The Second Respondent did not provide the applicant with the following information prior to hearing:
a)In it (sic) reasons for decision the second respondent made adverse findings about a letter from the applicant’s ex-wife dated
3 February 2009 without giving the applicant an opportunity to respond to such finding.b) The Tribunal did not provide the applicant with 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 a reason, or part of the reason, for affirming the decision under review.
The matters asserted here are set out in paragraph 36 of the applicant’s written submissions. It is asserted that the Tribunal failed to discharge its obligations pursuant to s.424A of the Act in relation to:
a)The letter from his ex-wife; and
b)Country information specifically relating to the applicant’s claim “in the sense that it concluded, on the basis of the country information, that the applicant lacked a well-founded fear of persecution because he was not a sufficiently high profile member of the NPP”.
Counsel made it clear that this was the primary ground pressed by the applicant. It was submitted that the Tribunal’s concerns about the letter from his ex-wife were simply not properly drawn to the applicant’s attention. It was further submitted that the Tribunal’s conclusion at paragraph 83 of its decision that the applicant’s ex-wife could not have been running his business in January 2009 did not in fact follow logically from relevant factual findings, the applicant’s uncontradicted contentions and other material before the Tribunal.
When looked at in detail, the matters in paragraph 39 of the applicant’s written submissions are in substance, in my view, a straight-forward merits review.
The first submission made by the first respondent referred to SZYPR and Anor v Minister for Immigration and Citizenship and Another (2007) 96 ALD 1 at [18] where the High Court said:
“Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:
… does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc …
If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”
I accept that that passage is applicable in relation to this aspect of this matter and, in my view, is dispositive of it. The fact that the Tribunal did not believe the applicant because of inconsistencies in his story was not information within the meaning of s.424A.
I further accept the first respondent’s submission that even if there had been such an obligation to notify the applicant, he was promptly put on notice of it (see paragraphs 66 and 83-84 of the Tribunal’s decision).
Insofar as the complaint is made about the non provision of country information, I accept the first respondent’s submission that this information was not about the applicant specifically, but was general in its content and would therefore attract the exemption under s.424A(3). I further note that the gravamen of this material was put to the applicant (see paragraphs 58-59 of the Tribunal’s decision) in a way that complied with s.424AA of the Act.
Ground 4
This ground was not pressed.
Conclusion
For the reasons I have given, none of the grounds of application are made out and I will order the application be dismissed with costs.
It should be noted that I have been referred to extensive authority by both counsel. I accept that the authorities referred to have been correctly described in the sense that the propositions for which they are said to stand by each member of counsel are correctly identified. To the extent that these decisions are not dealt with in these Reasons for Decision, however, it is because the general propositions do not in fact support the particular outcomes asserted (particularly by counsel for the applicant) in the light of the circumstances of the case.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 29 November 2012
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