MZZCV v Minister for Immigration and Border Protection

[2014] FCA 135

FEDERAL COURT OF AUSTRALIA

MZZCV v Minister for Immigration and Border Protection [2014] FCA 135

Citation:	MZZCV v Minister for Immigration and Border Protection [2014] FCA 135
Appeal from:	MZZCV v Minister for Immigration & Anor [2013] FCCA 1573
Parties:	MZZCV v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	VID 1140 of 2013
Judge(s):	DAVIES J
Date of judgment:	25 February 2014
Catchwords:	MIGRATION – Protection (Class XA) visa – Appeal from decision of Federal Circuit Court – No error of law – Appeal dismissed.
Legislation:	Migration Act 1958 (Cth), ss 36(2)(aa), 65, 424A
Cases cited:	Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Date of hearing:	13 February 2014
Date of last submissions:	13 February 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	15
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	R Knowles
Solicitor for the Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1140 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZCV
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DAVIES J
DATE OF ORDER:	25 FEBRUARY 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1140 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZCV
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DAVIES J
DATE:	25 FEBRUARY 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant has appealed the decision of the Federal Circuit Court of Australia (“the FCC”) dismissing his application for review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the decision of a delegate of the first respondent (“the Minister”) to refuse the appellant a Protection (Class XA) Visa pursuant to s 65 of the Migration Act 1958 (Cth) (“the Act”).

2. The appellant, a citizen of Ghana who was in Liberia between 1985 to 1991, claimed in his application for a protection visa that he has a well-founded fear that if he returns to Ghana he will be forcibly returned to Liberia for investigation and prosecution for perceived involvement in the civil war in that country. The appellant stated that he had family connection with the late President of Liberia, Samuel K Doe, who was killed in 1990. His application was refused because the Minister’s delegate had not been able to find any information that supported the appellant’s claim that he would be forcibly sent back to Liberia and no evidence was provided of the family connection with the late President. The delegate was accordingly not satisfied that the appellant was a person to whom Australia has protection obligations for the grant of a Protection (Class XA) Visa.

3. The appellant had the delegate’s decision reviewed by the Tribunal. The Tribunal’s reasons for affirming the delegate’s decision to refuse to grant the appellant a Protection (Class XA) Visa set out in considerable detail the claims made by the appellant and the evidence that he furnished in support of those claims, including additional evidence that the appellant was given the opportunity to provide at the conclusion of the Tribunal hearing. The Tribunal did not accept that there was a real chance that the appellant would be required to return to Liberia, either voluntarily or forcibly, if he went back to Ghana. Nor did the Tribunal accept that the appellant had any family connection with the late President. The Tribunal therefore found that the appellant’s fear of persecution was not well-founded.

4. The appellant sought judicial review in the FCC of the Tribunal’s decision. The grounds of his application were as follows:

   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 mentioned in the particular paragraph and further the Tribunal says “based on this independent information”.

   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.

   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.

   4.The Tribunal has proceeded illogically as seen from paragraph 45 of its decision.

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

   6.The Tribunal has erred in its assessment of complimentary [sic] protection obligation as found in paragraph 52 of its decision.

5. In a judgment delivered on 16 October 2013, the FCC addressed each of the grounds of review. The FCC concluded that there was no substance in any of the grounds and dismissed the application for judicial review.

6. The notice of appeal filed in this Court is in substantially identical terms to the application for judicial review filed in the FCC and includes a further ground (Ground 3) which appears to have been advanced orally before the FCC: “Truth and Reconciliation Commission has been incorrectly interpreted”. The appeal must fail because the FCC correctly held that no jurisdictional error had been established. In substance, both before the FCC and this Court, the appellant was inviting the Court to undertake a review of the merits of the Tribunal’s decision but it was not the function of the FCC and it is not the function of this Court on appeal from the FCC to engage in fact-finding about the merits of the appellant’s case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.

7. As to Ground 1 in the notice of appeal, it appears from the FCC decision that the substance of the complaint is that country information that the Tribunal relied on was not made available to the appellant. The Tribunal stated at [44]:

   44. The applicant claimed that he fears returning to Ghana because he believes he will be sent to Liberia where he will be persecuted because of his familial relationship with former President Samuel K Doe. The Tribunal does not accept that the applicant is related to Samuel K Doe. The Tribunal notes the applicant claimed that he belongs to the Ewe and Twi tribes. However, as the Tribunal put to the applicant in the hearing, the country information provides that both Samuel K Doe’s parents, who were said to be poor and uneducated, were from the Krahn tribe. (Ellis, S 1999, The Mask of Anarchy the destruction of Liberia and the religious dimension of an African civil war, New York University Press, p. 31 (‘Samuel K Doe’ n.d. Liberia Past and Present website  Doe’s mother is reported to be from Liberia and his father had lived for some time in Cote d’Ivoire and the Krahn comprised only about 5% of the population. [(Ellis, S 1995, ‘Liberia 1989-1994 a study of ethnic and spiritual violence’, African Affairs, Vol. 94, April, p. 177)]. Based on this independent information, the Tribunal does not accept that Samuel K Doe’s mother is the applicant’s grandmother’s older sister.

8. It is clear however, both from paragraph [44] and from a review of the transcript of the hearing that the Tribunal did put specifically to the appellant that according to country information Samuel K Doe’s parents belonged to the Krahn Tribe and provided the appellant the opportunity to respond, which he did. There was no breach of s 424A(1) of the Act and no procedural unfairness.

9. As to Ground 2, the Tribunal’s reasons disclose that the Tribunal did consider the Appellant’s claim of family connection, which it rejected for the reasons given.

10. As to Ground 3, this ground appears to pick up the additional ground advanced in oral submissions before the FCC. The FCC rejected that ground at [48]-[51] as follows:

    48. 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”.

    49. 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.

    50. 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.

    51. 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.

    No legal error is shown.

11. As to Ground 4 (Ground 3 in the application before the FCC), the FCC was correct also to reject that ground for the reasons given as follows:

    52. 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”.

    53. 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”.

    54. 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 (original emphasis).

12. As to Ground 5 (Ground 4 in the application before the FCC), I agree with the FCC that this ground ultimately was nothing more than an expression of dissatisfaction with the Tribunal’s conclusion.

13. Ground 6 (Ground 5 in the application before the FCC) is entirely unmeritorious.

14. Ground 7 (Ground 6 in the application before the FCC) also in substance is nothing more than an expression of dissatisfaction with the Tribunal’s conclusion. No legal error is disclosed in the Tribunal’s reasons for concluding the legal requirements of s 36(2)(aa) of the Act were not met. The Tribunal clearly appreciated the different test applicable to its assessment of any complementary protection obligations that might be owed to the appellant and given the findings that the Tribunal had made about the factual basis for the appellant’s claims, the Tribunal’s conclusions in respect of any claimed complementary protection obligations were open to it.

15. In the course of the appeal the appellant raised one further ground, arguing to the effect that there had been actual bias by the Tribunal in that the Tribunal had prejudged the decision. The appellant contended that the Tribunal member had expressed a predetermined view during the course of the hearing and referred to the fact that the Tribunal had handed down judgment the day after the appellant filed additional material. I do not find any merit in this ground either. Careful reading of the transcript shows that the Tribunal had not prejudged the matter before the conclusion of the hearing but rather, conformably with the obligation of procedural fairness, had put to the appellant that the country information was adverse to his case. The Tribunal gave the appellant further opportunity to put material before the Tribunal and the reasons of the Tribunal disclose that the Tribunal took that additional material into account in reaching its decision. The fact that the decision was handed down promptly after that further material was received does not show prejudgment on the Tribunal’s part and there is no warrant for a conclusion that the Tribunal did predetermine the appellant’s claim.

    The appeal is to be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.

Associate:

Dated:       25 February 2014