MZZCV v Minister for Immigration

[2013] FCCA 1573

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZCV v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1573

Catchwords:
MIGRATION – Application for review of Refugee Review Tribunal decision – whether Tribunal erred in concluding applicant not related to Samuel K Doe, former President of Liberia – whether Tribunal failed properly to consider the issue of complementary protection – criticisms not made out – application dismissed. 

Legislation:
Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A), 424A(3)(a)

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Applicant: MZZCV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1479 of 2012

Judgment of: Judge Burchardt

Hearing date: 6 August 2013

Date of Last Submission: 6 August 2013

Delivered at: Melbourne

Delivered on: 16 October 2013

REPRESENTATION

Counsel for the Applicant: Mr Fernandez

Solicitors for the Applicant: T.A. Fernandez

Counsel for the First Respondent: Mr Smith

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. Pursuant to r.701 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application is dismissed. 

3. The Applicant pay the First Respondent’s costs. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1479 of 2012

MZZCV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 October 2012.  There are 6 grounds set out in the application which have been the subject of written and oral submissions made by counsel on behalf of the applicant. 

2. For the reasons that follow, I do not think that the criticisms advanced of the Tribunal’s decision are made out and it follows that the application must be dismissed. 

Some background facts which are uncontroversial

1. What follows is taken from the parties’ written submissions and the materials in the Court Book (“CB”) and is not, as I understand it, controversial. 

2. The applicant was born on 2 January 1963 in Ghana and attended school there.  He has described his occupation before coming to Australia as a machine operator although it would appear he has performed a number of other duties, most notably perhaps during his time in Liberia between 1985 and 1991. 

3. The applicant’s parents are deceased and the applicant asserts that he has no meaningful contact with any remaining relatives in Ghana, being an only child. 

4. The applicant first arrived in Australia in March 1997 on a tourist visa.  For reasons that are not necessary to elaborate, he remained thereafter in Australia lawfully (although he did not have a relevant visa for a long time).  On 16 March 2012, the applicant applied for a Protection visa and this application was refused by a delegate of the first respondent on 27 June 2012. 

5. The applicant applied to review that application to the Tribunal, and following a hearing on 9 December 2012, the Tribunal made the decision that is subject to this appeal. 

6. It should be noted that the essential basis for the applicant’s claim for a Protection visa was an asserted fear that if he was returned to Ghana, he would be sent to Liberia to face trial there as a result of a family relationship with the former president of Liberia, Samuel K. Doe. 

The materials in the Court Book

1. In his original application for a Protection visa, the applicant asserted that he had previously applied for a “Religious Worker visa” (CB2).  That application and its rejection was part of the history giving rise to his ultimately lawful stay in Australia for many years.  It is not necessary to deal with it further.  

2. At CB14, the applicant asserted having been in Liberia between 1985 to 1991.  At CB24-25, his Statement in Support of the application is set out.  Relevantly, the applicant referred to the fact that:

   “a truth and reconciliation commission was established in 2005 to investigate and report on gross violation that occurred in Liberia during 1997 until 2003.  As part of the commission any person in any neighbouring Country and who was in Liberia was requested to return to Liberia during the crucial years in order to face an investigation and prosecution by the government.  Those who did not return voluntarily were forcibly returned.  It is my well founded fear that on return to Ghana I would be returned to Liberia and thereby fact an investigation and prosecution of my perceived involvement in the civil war waged in that country.  I am personally aware of many citizens of Ghana who were forcibly returned to Liberia after the civil war and they have not been heard of since.”

3. It is worth noting in passing that the applicant did not refer to any family connection in that Statement to former President Samuel K. Doe. 

4. The delegate’s decision is set out at CB106-120.  At CB112-113, the delegate recorded that he had not been able to find any information which supported the applicant’s claims of likely expatriation to Liberia.  The applicant recorded that there was nothing on paper he could provide.

5. At CB113, the delegate recorded:

   “The applicant has stated he is related to the late president of Liberia, Samuel K Doe.  He stated his Grand Aunty is ‘Doe’s’ mother.  His grandmother’s younger sister is Doe’s mother on the paternal side.”

6. The delegate did not accept that assertion in the absence of any material to support it. 

7. The delegate also noted what might be thought to be some minor inconsistencies in the applicant’s account of how much he had travelled outside Ghana and the amount of time he had lived there.

8. The delegate went on to find that the applicant was not a person to whom Australia owed Protection obligations.  

9. On 28 June 2012, the applicant’s counsel, Mr Fernandez forwarded to the Tribunal two documents from treating eye specialists which make it clear that the applicant’s eyesight is, most unfortunately, afflicted by glaucoma to a point where the submission made by Mr Fernandez at trial that the applicant is legally blind is more than probably correct. 

10. At CB163, there is set out a letter dated 16 October 2012, which responded to matters raised at the hearing.  The relevant terms of this letter are as follows:

    ““The forms of the family found in Africa are consistent with the forms of economic production.  Throughout most of the rural areas, the typical domestic group is a joint or extended family consisting of several generations of kin and their spouses, the whole being under the authority of the senior male”. (Source: encyclopaedia, Britannica).

    The Truth and Reconciliation Commission contains the list of forty nine names of people that should be “specifically barred from holding public offices elected or appointed for a period of thirty years”.”

11. The significance of that response will become apparent in due course. 

The Tribunal’s decision

1. At CB171-173, the Tribunal paraphrased the nature of the application and the Relevant Law in terms that seem to me to be completely unobjectionable. 

2. CB173-179, the Tribunal recorded the Claims and Evidence. 

3. The Tribunal set out the nature of the application and paraphrased the file, noting the applicant’s extensive travel in the past.  The Tribunal set out in full the Statement of the applicant to which I have already referred.  The Tribunal noted the country information received from the applicant’s advisor and the decision of the delegate.  The Tribunal at paragraphs 26 and following (CB175-179) recorded matters that took place at the hearing.  It should be noted that the transcript of the proceeding is before the Court in a Supplementary Court Book (“SCB”) and I would observe at this stage that the Tribunal’s record in its decision seems to me to be accurate enough. 

4. I note that the applicant confirmed that he presently has no family in Ghana (paragraph 28). 

5. In paragraphs 31 and 32, the Tribunal recorded:

   “31.  The Tribunal asked the applicant why he fears returning to Ghana.  The applicant stated that both his parents had passed away so if he returns home he has nowhere to go and no one to turn to.  He has been in Australia for the past fifteen years, kept in “cold storage” for all this time.  Even if he happens to go back to Ghana, he will find himself in Liberia and being that his great aunty was the mother of Doe, the late president, he has a family link and those people are being persecuted and some family members cannot be accounted for; this is his worst fear of returning to Ghana.  Moreover, there were some Ghanaians who went back after the conflict and could not be accounted for; that was before the reconciliation.  He explained that there are some tribes of Ghana which stayed in Liberia for a long time and some became citizens and some became residents.  A few that returned could not be accounted for because they were persecuted so his fear is that he will fall in the same box because he has never lived in Ghana and worked and his travel in and out of Ghana can be seen in his travel documents.  He stated that he has nowhere to go in Ghana as his parents have passed away; he questioned where he could go and where he can stay.  The applicant reiterated that he has been in Australia for fifteen years.

   32.  The Tribunal asked the applicant who he fears will harm him.  The applicant stated that as soon as he gets to Ghana he will be on his way to Liberia because there are still investigations going on about all the Ghanaians who came from Liberia during the civil war because some of them were perceived or alleged as being part of the conflict.  He stated that as soon as he goes in he will have to go unless he is cleared but he was a resident of that country and also his grand aunty was the mother of the late President so he knows he will definitely be penalised.  The applicant stated that the current President was an enemy of President Doe so if he is connected to President Doe he will definitely not be spared.  The Tribunal asked the applicant if he ever participated in the fighting in Liberia.  He stated that he never took part in the fighting but he has a relative who was Head of State and even the current Head of State was sentenced to prison by the late Doe; as he was part of Doe’s family and Liberia’s population is not very big, as soon as he gets to Liberia he will be recognised.”

6. When asked how he was related to Samuel K. Doe, the applicant stated:

   “that his grandmother’s older sister is Doe’s mother”.  (paragraph 33 CB177)

7. The Tribunal explored this matter with the applicant and the applicant stated inter alia that:

   “… there is nothing on paper that he could present to the Tribunal to confirm the relationship between the late President’s mother and his grandmother. …”

8. The Tribunal went on to ask the applicant which tribe he belonged to, and he confirmed that he was from the Ewe tribe.  The Tribunal put it to the applicant that according to country information, President Doe’s parents both belonged to the Krahn tribe.  The applicant took issue with this asserting that only Doe’s father was a Krahn tribe member, but the Tribunal re-iterated that this is not what the country information said.  The Tribunal expressly put it to the applicant that this suggested that he was not related to Doe, and that Doe’s mother was not his great-aunt.  The applicant stated in summary that in Africa it is normally the father’s side that a person belongs to, and there is not an account taken of the maternal side, (paragraph 34 (CB177). 

9. The Tribunal went on, as recorded at paragraph 35, to ask the applicant about his fear of being sent to Liberia.  The Tribunal put it to the applicant (see paragraph 36) that it had been unable to locate any information regarding the extradition of Ghanaian citizens for any reason, including involvement in the civil war.  The Tribunal put it to the applicant it therefore had serious doubts about his claimed fear.  The Tribunal noted at paragraph 36 that the Truth and Reconciliation Commission (“TRC”) had produced a final report in December 2009 which listed 198 perpetrators and 139 other persons of interest, but the applicant’s name was not on this list.  The applicant agreed his name was not included, but asserted that if he was on the street in Liberia or anywhere with people he knew, he knows that he would vanish.  The matter is perhaps encapsulated best at paragraph 37, as follows:

   “The Tribunal asked the applicant if there was any other reason he fears returning to Ghana other than what he had discussed during the hearing, which is essentially because of his familial relationship with Doe, he will be sent to Liberia.  The applicant stated that this was it.  He stated moreover, his parents have passed away and he does not have anywhere to go to or no-one to turn to; he does not have a home.  The Tribunal noted that these types of issues do not come within the Convention and nor does it within the complementary protection provisions.  The Tribunal put to the applicant that it understood he does not have his parents in Ghana but noted that he had spoken about having contact with a friend in the past and he may have other friendships through the time that he lived there previously.  The Tribunal also noted that he is educated and he has worked in Liberia and in Australia so he has skills and experience which he could rely on if he returns to Ghana; the Tribunal put to the applicant that there is nothing to suggest he will be denied the ability to subsist.  The applicant stated to go back there starts from somewhere in P1 and he has been here in Australia for the past decade and a half, in cold storage.  Putting that aside, the constant strain is that if he returns home, he will find himself in Liberia and that is where he will be facing harm.”

10. Although there were some further exchanges recorded at paragraphs 38-39 (CB179), these do not in my view take the matter further.

11. The Tribunal noted at paragraph 40 (CB179) that it had received the submission from the advisor on 16 October 2012 to which I have referred. 

12. At CB180-183, the Tribunal set out its Findings and Reasons. 

13. Put shortly, the Tribunal did not accept that the applicant was related to Samuel K. Doe.  The Tribunal noted that the applicant claimed to belong to the Ewe and Twi tribes, but that Samuel K. Doe’s parents were known from country information to be from the Krahn tribe.

14. Further, the Tribunal did not accept that Samuel K. Doe’s mother is the applicant’s grandmother’s older sister.  The Tribunal noted that while this was what the applicant had said at the hearing before the Tribunal, before the delegate he had claimed that Doe’s mother was his grandmother’s younger sister.  The Tribunal noted (paragraph 44, CB181):

    “… The Tribunal does not find the applicant’s evidence in the hearing regarding familial relationships in West Africa or the information from Encyclopaedia Britannica regarding family forms in Africa submitted following the hearing, corroborates the applicant’s claim to have a familial relationship with Doe and for the reasons given above and in the absence of any evidence to confirm this assertion, the Tribunal does not accept that the applicant is related to Samuel K Doe.”

15. The Tribunal went on to say (at paragraph 45):

    “As such, the Tribunal does not accept that if the applicant returns to Ghana he would face any difficulties because of his alleged familial ties with Doe.  The Tribunal does not accept that the applicant would be sent from Ghana to Liberia, where he claims he will be investigated because of some perceived or alleged participation in the conflict.  Although the Tribunal accepts that the applicant spent several years in Liberia, the Tribunal notes the applicant’s evidence that he played no part in the conflict and worked in various positions in which he was successful.  In light of this, the Tribunal does not accept that the applicant would be extradited to Liberia.  The Tribunal also notes that, as it put to the applicant in the hearing, it has been unable to locate any information regarding the expulsion of Ghanaian citizens to Liberia.  The Tribunal notes the applicant’s evidence regarding his knowledge of others being sent back to Liberia, however it found much of this to be confusing, unsubstantiated and at times irrelevant such as the applicant’s reference to a BBC report regarding the stability in several West African countries.  …”

16. The Tribunal went on to find that there was no real chance that the applicant would be forcibly sent to Liberia where he would be subject to investigation. 

17. The Tribunal also said at paragraph 46 (and this is a matter raised in advance of the application):

    “The Tribunal has considered the applicant’s claim that if he goes back to Ghana someone may say something that is not true which will result in him being penalised.  The Tribunal finds this claim to be ambiguous and purely speculative and as such, it does not accept that there is a real chance that any false allegations will be made against the applicant by unidentified people which will result in the applicant being punished.”

18. The Tribunal went on at paragraph 47, (CB181-182):

    “The Tribunal notes the applicant made reference to the Truth and Reconciliation Commission established in 2005 to investigate and report on gross violations in Liberia during the civil war in his protection visa application.  The applicant claimed that the Commission requested any person from neighbouring countries who were in Liberia to return to face investigation and prosecution and those who did not voluntarily go back to Liberia were be forcibly returned.  As the Tribunal put to the applicant in the hearing, the TRC produced its final report in December 2009 and on 30 November 2008 it published a list of 198 perpetrators and 139 other persons of interest it needed to hear from and his name was not on this list.  The applicant agreed in the hearing that he was not wanted.  Following the hearing, the applicant provided further information regarding a list of forty nine people barred from holding public office for (sic) period of thirty years, however he has no explained (sic) how this is relevant to him or his particular situation.  On the basis of the applicant’s profile as a person who worked in Liberia and did not participate in the fighting, the fact he is not related to Samuel K Doe and there is nothing in the country information to support the applicant’s assertions that any person from countries such as Ghana, present in Liberia at the time of the conflict, was subject to investigation, the Tribunal does not accept that there is a real chance that the applicant would be required to return to Liberia, either voluntarily or forcibly, to answer to the TRC which has completed its report.”

19. The Tribunal went on at paragraph 48 to find that the applicant would be able to subsist in Ghana, notwithstanding some difficulties.  The Tribunal concluded that the applicant’s fear of persecution was not well-founded, at paragraph 49 (CB182). 

20. At paragraphs 50-52, the Tribunal considered the question of the complementary protection obligations arising from s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act). The Tribunal noted the inclusive definition of “significant harm” which is the matter required to be considered under this heading. Those matters consist of a real risk of being arbitrarily deprived of life, having the death penalty carried out, being subject to torture or to cruel or inhuman treatment or punishment, or to degrading treatment and punishment. The Tribunal accepted that the applicant might experience difficulties in resettling and establishing himself in Accra after many years absence from the country and without his parent’s presence, but did not accept in the particular circumstances this could amount to significant harm within the meaning of s.36(2A).

The grounds advanced and the submissions made in support of them

Ground 1 - The Tribunal has denied the applicant natural justice in that the Tribunal having extensively quoted from various sources as founded at paragraph 44 of the decision, the Tribunal has failed to give the applicant any of the information mention in the particular paragraph and further the Tribunal says “based on this independent information”. 

1. In the applicant’s written submissions the matter is addressed as follows: 

   “First ground is that the applicant has been denied natural justice in that the information relied on by the Tribunal as seen in paragraph 44 of its decision (page 180 of the CB) has not been furnished to the applicant.  Essentially what the Tribunal says is that the applicant belongs to the EWE & TWI tribes whereas his grandmother’s elder sister belongs not to the same tribe as that of the applicant but to the KRAHN tribe.  What the applicant says at this stage is that if this was the information that was relied upon by the Tribunal then this information ought to have been given to the applicant pursuant to his right to a fair and just hearing in relation to his (application).”

2. In oral submissions counsel expanded on this matter somewhat. It was submitted that s.424A(3)(a) had been misapplied. It was put that this was information that was specifically about the applicant (if I understand the submission correctly).

3. Counsel for the first respondent submitted first there was no requirement on the part of the Tribunal to put this information to the applicant, because it was in fact not information specific to him but simply general information within the meaning of s.424A(3)(a).

4. It was put further that in any event the substance of the information was put to the applicant. 

5. While it is clear that paragraph 44 of the Decision of the Tribunal sets out country information in detail, the point taken from that information was that the parents of Samuel K. Doe were from the Krahn tribe and this point was clearly put to the applicant in the context of his assertion that he belongs to the Ewe and Twi tribes.  This is clear from p.15 of the transcript. 

6. Accordingly, it is clear that this ground cannot be sustained.

Ground 2 - The Tribunal has failed to consider the important integer of the applicant’s claim of his relationship with the mother of Samuel K Doe who was a President of Liberia at the relevant time. 

1. This matter was not elaborated in the written submissions filed by the applicant and was not addressed in oral submissions either. 

2. In my view the submission of the first respondent that it is plain that the Tribunal did deal with the applicant’s claim to have been related to Samuel K. Doe is irresistible.  The passages I have set out earlier make this perfectly clear.  This ground must fail. 

An additional ground was advanced in oral submissions

1. Counsel for the applicant advanced a matter in oral submissions which it is not altogether easy to recount.  The Court was taken to paragraph 47 of the decision (CB181) where the Tribunal referred to the Truth and Reconciliation Commission’s investigation of “the gross violations in Liberia during the civil war”. 

2. Counsel noted that the applicant was not on the list of those who might have participated in such matters, but said that violations simpliciter is different.  In essence what was put was that because the applicant was in Liberia between 1985 to 1991, it was possible he might therefore be returned to Liberia.  Counsel referred to the country information set out at CB86-94 in this regard.  It was submitted that the failure of the Tribunal to deal with what was, so to speak, going on generally in Liberia arising from these earlier episodes should have been dealt with by the Tribunal. 

3. The first thing to be said about this submission is that of course the applicant did articulate a fear of return to Liberia and did say that he might be required to return because he had been there between 1985 and 1991.  That fear was, however, articulated solely, as the Tribunal recorded, in the context of the asserted familial relationship with Samuel K. Doe. 

4. In any event, a fair reading of the Tribunal’s Decision makes it clear that the Tribunal understood that the applicant was asserting a risk of return to Liberia generally, but for the reasons given did not accept that there was any real chance it would take place.  This reasoning in part was based up on the Tribunal’s complete incapacity to find any materials that suggested that any Ghanaian citizens had been forcibly repatriated to Liberia.  In the face of that conclusion, the Tribunal’s finding could scarcely be said to be in error in any way. 

Ground 3 - The Tribunal has been speculative as seen in paragraph 46 of its decision and further there was no evidence on the Tribunal to so find about the applicant’s relationship with the former President of Liberia.

1. In the written submissions the applicant described the Tribunal’s language as “nothing but a figment of the Tribunal’s imagination and not based on evidence”. 

2. The difficulty, however, in my view is that that is not a proper characterisation of what the Tribunal was doing.  The Tribunal was considering the applicant’s claim that if he returned to Ghana someone might say something that was not true which would result in him being penalised.  All that the Tribunal said was:

   “… The Tribunal finds this claim to be ambiguous and purely speculative and as such, it does not accept that there is a real chance that any false allegations will be made against the applicant by unidentified people which will result in the application being punished”.

3. In my view, this characterisation of the claim was one wholly open to the Tribunal in the circumstances.  Indeed, the applicant’s own evidence was that he was, to all effects and purposes, bereft of any contacts in Ghana at all.  Given the Tribunal’s rejection of his claim of familial relationship with Samuel K. Doe, the Tribunal’s conclusion was entirely open to it. 

Ground 5 - The Tribunal has proceeded illogically as seen from paragraph 45 of its decision. 

1. In paragraph 45 (CB181), the Tribunal set out its conclusion that the applicant would not face extradition from Ghana to Liberia to face investigation by the Truth and Reconciliation Commission. 

2. I accept the submission of the first respondent that this is ultimately nothing more than an expression of dissatisfaction with the Tribunal’s conclusion.  The first respondent’s submissions point out that Crennan and Bell JJ said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, at [94], that illogical or irrational reasoning could only give rise to an error of law where the decision-maker’s state of satisfaction was one of which no rational or logical decision-maker could arrive at on the same evidence. Applying that test here, it is absolutely plain that the Tribunal’s decision could not be described as illogical or irrational. Indeed, in circumstances where the applicant’s only expressed fear of harm arose from a family relationship with Samuel K. Doe, which the Tribunal did not accept, the Tribunal’s finding would seem to have been eminently reasonable.

Ground 5 - The Tribunal has failed to consider the applicant’s claim in relation to protection visa application.

1. This matter was not the subject of additional oral or written submissions.  It is a simple assertion which is clearly wrong.  The Tribunal quite obviously did address, and in considerable detail, the applicant’s claim for a protection visa. 

Ground 6 - The Tribunal has erred in its assessment of complementary protection obligation as found in paragraph 52 of its decision. 

1. The short written extract of the applicant’s submission in this regard reads:

   “The complementary protection provision has not been correctly interpreted by the Tribunal in that the only reason that the Tribunal denies the applicant complementary protection is because he is not related to the former president of Liberia SAMUEL DOE.”

2. In oral submissions counsel submitted that the complementary protection criterion had not been looked at in an appropriate way and pointed to the fact that the test is less stringent than that under the Convention. 

3. That submission is not correct. It is fair to say that the Tribunal did not accept that the applicant was a refugee, predominantly because the family relationship he claimed with President Doe was not made out. However, the Tribunal was clearly conscious of the different test provided for by s.36(2)(aa) and the definition in s.36(2)(A) of the Act. The Tribunal turned its mind to the difficulties the applicant might face in returning to Ghana, but the Tribunal was correct to say that those matters do not come within the definition of s.36(2)(A).

4. This ground must also fail. 

Conclusion

1. For the above reasons the criticisms made in respect of the Tribunal’s decision are not established.  I will change the name of the Minister to reflect his new title and the application will be dismissed with costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  16 October 2013