MZZDK v Minister for Immigration and Border Protection

[2014] FCA 181

FEDERAL COURT OF AUSTRALIA

MZZDK v Minister for Immigration and Border Protection [2014] FCA 181

Citation:	MZZDK v Minister for Immigration and Border Protection [2014] FCA 181
Appeal from:	MZZDK v Minister for Immigration & Anor [2013] FCCA 919
Parties:	MZZDK v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 867 of 2013
Judge:	NORTH J
Date of judgment:	12 February 2014
Date of hearing:	12 February 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	29
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Mr L Brown
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 867 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZDK
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	12 FEBRUARY 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders made by the Federal Circuit Court judge on 9 August 2013 be set aside.

3.In lieu of those orders, the following orders be made: 

(a)a writ certiorari issue, directed to the second respondent, removing into the Court its decision, made on 26 October 2012 affirming the decision of a delegate of the first respondent not to grant a protection visa to the appellant, for the purpose of quashing that decision;

(b)the decision of the second respondent, made on 26 October 2012, affirming the decision of a delegate of the first respondent not to grant the appellant a protection visa, be quashed;

(c)a writ of mandamus issue, directed to the second respondent, requiring it to hear and determine the application of the appellant for review of the decision of the delegate of the first respondent refusing to grant him a protection visa.

4.The first respondent pay the appellant's costs of the appeal.

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 867 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZDK
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	12 FEBRUARY 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an appeal from a judgment delivered by the Federal Circuit Court on 9 August 2013.  The Federal Circuit Court dismissed an application for review of a decision of the Refugee Review Tribunal made on 26 October 2012.

2. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellant a Protection (Class XA) visa.

   THE APPELLANT’S CLAIMS

3. The appellant is a national of Ethiopia who was born in 1982.  He is of Amharic ethnicity and is a Christian by religion.  He trained in horticulture and worked at a government agricultural research institute.  In the course of that employment, he undertook a master’s degree and was then sponsored by the government to attend a short horticulture course in Australia.

4. He claimed to fear persecution as a result of his political opinion as an opponent of the government and as a result of his discrimination arising from his Amharic ethnicity. He also claimed to fear persecution from his membership of a particular social group, namely, as a returnee from the West.

5. The essential point in the appeal concerns the appellant’s claim based on his fear of persecution as a result of his political opinion.  He claimed that he was imprisoned twice in 2005 after the election in Ethiopia for opposing the government.  He also claimed that he would be targeted as a result of his later involvement with an underground opposition organisation called Ginbot 7. 

6. The appellant’s claim in relation to Ginbot 7 was set out by the Tribunal at [23] as follows:

   •He supported the Katedemena Party (known as the Rainbow Party) which was part of the CUD [Coalition for Unity and Democracy Party], and formed an underground group called Ginbot7.  He was one of the organisers in the Wag-Last district and recruited youth supporters.  Ginbot7 was declared a terrorist organisation and the ruling party regularly tortured members of Ginbot7.

   •Security forces randomly check residences and hunt for people suspected of supporting Ginbot7, and this had intensified in recent months in the countryside.

   •Soon after he arrived in Australia he was told his main Ginbot7 contact had been exposed by the government, and forced to provide information about members of the organisation.  That contact led security forces to his house and they tormented his two younger sisters to force them to give information about his involvement with Ginbot7.  His younger sister was beaten as she refused to give them documents.  After this his sisters had no option but to leave, and are now in hiding with relatives in another district.

   •Authorities took his computer and some documents.  Police continued their investigation, and revisited his residence looking for more evidence of his involvement in Ginbot7.  He heard they are waiting for his return and will harm him for anti-government involvement. 

   •If he returned he feared he would be tortured or imprisoned or even killed due to his previous political involvement. 

   THE DECISION OF THE TRIBUNAL

7. The Tribunal set out the evidence which the appellant gave at the hearing in relation to his claim of involvement with Ginbot 7 as follows:

   36.The Tribunal asked why he feared return to Ethiopia.  He said before he came here he worked with the opposition party, and joined an organisation called Ginbot 7.  He said he had no problems at the time he left Ethiopia, but shortly after he arrived here, a person who was his contact had been arrested, and authorities had come to his house and taken photo albums, documents and his computer.  He said this was at the end of July 2011, and he found out from a friend who was keeping an eye on his two younger sisters who were living with him.

   37.He said after that in the first raid on his house, authorities had beaten and harassed his sisters, and there was a second raid, and after this his friend feared for the safety of the sisters, and assisted in relocating them to another area in Ethiopia.

   38.The applicant said he had spoken to his sisters since then, and they confirmed they had been harassed and beaten, and things were taken from the house including a computer.  They also said they were questioned about who the applicant had contact with. 

8. The Tribunal also set out the appellant’s evidence concerning his activities with Ginbot 7 after he had been imprisoned in 2005 at [42] as follows:

   The applicant said after this he returned to work at Sokota, and was not questioned or detained again.  He also said he did not openly participate in political activities, as he was under warning not to do so.  In response to Tribunal questioning he said he was subsequently enrolled to undertake a Master’s course, and after 12 months absence for the purposes of the first portion of that course, he returned to Sokota.  It was in this time he joined Ginbot 7 which he said was an underground party, but said his involvement was not publicly known.

9. The Tribunal asked the appellant why, if he was beaten as he claimed, he would have been employed at a government facility, nominated for further studies, promoted and sponsored on a trip to Australia.  His response is recorded at [44] of the Tribunal’s reasons as follows:

   In response the applicant said after the 2005 incidents he had described, he had totally confined his activities to underground work with Ginbot 7.  He also said not all the top university lecturers and academics and leaders supported the government, and not all of them were called in, tortured or beaten, and some people who work in government still opposed it.

10. Later in its reasons, the Tribunal referred to post-hearing information provided by the appellant in response to a letter from the Tribunal pursuant to s 424A of the Migration Act 1958 (Cth) as follows:

    58.      …

    •He has continuously been involved with Ginbot 7 in Australia, and enclosed receipts including his membership payment which signifies his ongoing and genuine involvement with Ginbot 7.

    •Ginbot 7 was declared a terrorist organisation in June 2011, resulting in house searches and detentions and arrests.  Such actions have intensified in areas outside the vision of the international media and human rights groups.  The authorities are suspicious of persons who do not support the ruling party and torture persons to get information.  Given he has travelled overseas, and many underground organisations have their headquarters overseas, authorities will be even more suspicious of the applicant.  All these factors indicate it is “highly plausible that his house was raided after his departure for Australia”.

    …

    60.The additional documents included a one and a half page letter purportedly provided by Ginbot7 setting out general information about the organisation, one paragraph of which referred to the applicant specifically and asserted he was “a member of the Ginbot7 in Australia” and a “tireless individual who has a track (sic) in fighting the tyrannical regime of Meles Zenawi”.

11. After setting out the evidence given at the hearing, the Tribunal considered extensive country information about the dangers to opponents of the government in Ethiopia.  That material demonstrated that there was a high risk of serious harm to people who were seen as opponents of the government, including people affiliated with Ginbot 7. 

12. The Tribunal then dealt with the appellant’s claims relating to Ginbot 7 at [96] to [99] of its decision as follows:

    96.The second aspect of his claim to fear persecution on return to Ethiopia for reason of his political opinion arises from his assertion he was a member of Ginbot7 in Ethiopia, and that this association was not discovered by Ethiopian authorities until soon after he left Ethiopia in 2011 to undertake the training course in Australia.

    97.The Tribunal did not find the applicant credible in terms of his claims to be a member of Ginbot7 in Ethiopia, or his claims that his home was the subject of a raid or raids by authorities in the period after he left for Australia.  It is therefore not satisfied he was a member of, or associated with Ginbot7 prior to coming to Australia, and is not satisfied his home was raided as claimed or that members of his family were tormented or harassed or that materials linking him with Ginbot7 were found in his home by authorities.  The Tribunal therefore concludes the applicant does not currently have any adverse profile with the government of Ethiopia.

    98.The applicant made no claim at hearing or in his written material, to have taken any active role in Ginbot7 activities since arriving in Australia, and the Tribunal is not satisfied on the material before it that he has been so involved.  The Tribunal has had regard to the emails provided at hearing and the post hearing submission, including the letter purporting to be from Ginbot7.  It gives those emails and letters no weight as evidence that the applicant had been involved in Ginbot7 prior to his arrival in Australia.  In doing so it notes the emails are all in English, and relatively recent, and whilst they do suggest the person connected with the email address may be a member of Ginbot7, they do not name the applicant or identify when such membership commenced.  In addition, the post hearing letter of support, whilst it does name the applicant specifically, is extremely general in nature, fails to indicate when he may have actually joined Ginbot7, or the nature of his association with that organisation, and makes no reference to any association with the organisation in Ethiopia.  The Tribunal also notes the only specific reference to the applicant in that letter is in the second last paragraph, which describes him as “a member of the Ginbot7 network in Australia.  He is a tireless individual who has a track (sic) in fighting the tyrannical regime of Meles Zenawi”.  This does not indicate he was ever a member of Ginbot7 in Ethiopia, and does nothing to dispel the conclusion by the Tribunal that his claims to have been a member prior to coming to Australia were false.  The Tribunal notes that had the applicant genuinely been an active member of Ginbot7 in Ethiopia that organisation could have confirmed this, but did not.

    99.Apart from the claim of the applicant, there is nothing else before the Tribunal to suggest he has any political profile as an opponent of the government of Ethiopia, or that he would face any adverse treatment from the government or its supporters as a result of his political opinion (actual or perceived).  Similarly the Tribunal does not accept that if the applicant was to return to Ethiopia now or in the reasonably foreseeable future that he would engage on political issues that would draw him to the adverse attention of authorities in Ethiopia.  In reaching this conclusion, the Tribunal relies on its findings that he has not engaged in such activities in the past in Ethiopia, and his own evidence that he has not participated in such activities in Australia, beyond possibly joining Ginbot7 since arriving in Australia, and receiving emails of its newsletters.  The Tribunal is not satisfied any such involvement with Ginbot7 since arriving in Australia would lead the applicant to seek to be actively involved in political matters if he was to return to Ethiopia.  It is therefore not satisfied if he returned to Ethiopia now or in the reasonably foreseeable future, that he would face a real chance of persecution for reason of his political opinion. 

    THE JUDGMENT OF THE FEDERAL CIRCUIT COURT

13. Following the decision of the Tribunal, the appellant applied for review to the Federal Circuit Court.  One of the grounds before the Federal Circuit Court was:

    Ground 2:  the Tribunal Member failed to consider my claim that I would face a risk of harm on account of my continued activities in Australia, including that I had been a member of Ginbot 7 in Australia.  He also failed to make any findings about my fears that Ethiopian government Spies in Melbourne may report my activities here.

14. The Federal Circuit Court dealt with this ground at [50] by referring to [99] of the Tribunal’s decision which provided as follows:

    The Tribunal is not satisfied any such involvement with Ginbot7 since arriving in Australia would lead the applicant to seek to be actively involved in political matters if he was to return to Ethiopia.  It is therefore not satisfied if he returned to Ethiopia now or in the reasonably foreseeable future, that he would face a real chance of persecution for reason of his political opinion.

15. The Federal Circuit Court then concluded as follows at [51]:

    I think, it is true to say, as the applicant asserts, that the Tribunal did not expressly find that the applicant’s minimal involvement with Ginbot 7 in Australia would not on its own leave him at risk of persecution.  Nonetheless, when read fairly and as a whole, it is clear that the Tribunal simply did not accept that the applicant had any political profile or any political activities of any moment.  In these circumstances, the absence of a specific finding by the Tribunal that the applicant’s activities in Australia would not expose him to harm does not, in my view, suggest that the Tribunal fell into jurisdictional error.

16. This finding gave rise to the central ground of appeal before this Court. 

    THE APPEAL

17. The appellant filed a notice of appeal on 23 August 2013, which contained the following grounds of appeal:

    1.        The Federal magistrate erred in concluding that the second respondent did not deny natural justice to me by reasons of failure to consider integers of my claim, namely my membership of Ginbot7 in Australia in respect of my claim to fear persecution:

    a)        on the basis of my actual or implied political opinion

    i)there was no finding by the second respondent that my activities in Australia would not leave me at risk of persecution.

    ii)the second respondent made irrational decision about my likely future political activities, in the face of an evidence showing my membership of Ginbot7 in Australia, an organization that was declared by the Ethiopian Government to be an ‘illegal organization’.

    b)as a returnee from Australia.  In particular, the second respondent failed to make any findings about my fear that Ethiopian government spies in Melbourne may report my activities in Australia (a failed asylum seeker who has been a member of Ginbot7).

    2.The Federal magistrate should have held that the tribunal erred in law by making mistaken conclusions based on erroneous credibility findings. 

18. The approach taken by the Federal Circuit Court assumed that the appellant had made a claim that his activities in Australia exposed him to the risk of persecution in Ethiopia, but that implicitly the Tribunal found that these activities were of such a low level that they would not expose the appellant to the risk of persecution in Ethiopia.  This is a reading of the Tribunal's reasoning which should not be accepted.

19. The Tribunal dealt with the appellant’s claim that he was a member of Ginbot 7 in Ethiopia.  This appears clearly from [96] of the Tribunal’s decision, as set out at [12] of these reasons.  Having stated the nature of the claim the Tribunal then, at [97] and [98] as set out at [12] of these reasons, dealt with that claim.  At [98], it referred to the appellant's activities in Australia, but this was in an attempt to determine whether the appellant was a member of Ginbot 7 in Ethiopia.  Having determined that the appellant was not a member of Ginbot 7 in Ethiopia, the associated claim that his house had been raided was rejected.

20. At [99], set out at [12] of these reasons, the Tribunal considered the appellant's activities in Australia.  It made no finding that the appellant was a member of Ginbot 7 in Australia, but said he "possibly" joined the organisation in Australia.  The critical conclusion of the Tribunal was that it was:

    not satisfied any such involvement with Ginbot7 since arriving in Australia would lead the applicant to seek to be actively involved in political matters if he was to return to Ethiopia.

21. The correct view of [99] is that the Tribunal was looking at whether, by reason of his activities in Australia, the appellant would be likely to engage in conduct in political opposition to the government if he returned to Ethiopia. 

22. Mr Brown, who appeared on behalf of the first respondent, argued that the scope of the Tribunal’s finding in [99] was wider. He relied in particular on the opening sentence of the paragraph.  However, the opening sentence needs to be read in the context of the paragraph as a whole, which treats the appellant’s conduct in Australia as relevant to the question of whether the appellant would be politically active if he returned.  It does not deal with the separate issue of whether, as a member of Ginbot 7 in Australia, the appellant would face a risk of that fact being discovered and of retribution by way of persecution on return to Ethiopia.

23. The remaining question is whether the appellant made a claim that his activity in Australia might be reported back to the Ethiopian government, and that whether or not he was active in Ethiopia on his return, his activities in Australia would themselves endanger him.  The Federal Circuit Court appeared to assume that such a claim was made.  Mr Brown did not mount any serious argument that such a claim was not made.  It is true that the appellant did not clearly articulate such a claim. 

1. It is not the role of the Tribunal to make the case of the appellant for him.  On the other hand, it is necessary for the Tribunal to review the entirety of the evidence, and apply it to the criteria in the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967), even if the grounds are not carefully particularised by the applicant for a protection visa.  That obligation is particularly important in circumstances where the consequences of any return to country of origin are extremely serious.  In the present case, the country information shows that there is extreme danger to political opponents of the Ethiopian government. Consequently, the Tribunal must ensure that any entitlement to refugee status of an applicant which emerges from the facts, even if not carefully articulated, is dealt with. 

2. In the present case, the facts on which the appellant relied gave rise to a claim that he might be in danger merely from his membership of Ginbot 7 in Australia.  The appellant was represented before the Tribunal by lawyers who produced a lengthy submission following the hearing as part of the response to the Tribunal’s s 424 letter, which included the following:

   The Applicant wishes to further submit that he has been continuously involved in Ginbot 7 while in Australia.  We enclose receipts indicating the applicant’s payment of his membership with Ginbot 7.  We submit that this signifies the applicant’s genuine and ongoing involvement in the organisation. 

   The Applicant notes the [sic] in June 2011, the Ethiopian Parliament declared Ginbot 7 a terrorist organisation.  We note previous country information which supports this assertion.  Measures were put in place to ensure political uprising such as those in other African Countries and the Middle East did not occur in Ethiopia.  Especially in light of the previous political tensions that occurred in 2005. Accordingly, the Ethiopian Government initiated house searches in order to find information against members of opposition political parties including underground parties.  Additionally, many opposition politicians, members and supporters of opposition parties, activists and journalists were arrested and detained… The Applicant submits that the ongoing round up and arrest of ordinary citizens intensified specifically in country areas as it is outside the vision of international media and human rights groups.  Further, the applicant submits that the Ethiopian Authorities are particularly suspicious of individuals who are not supporters of the ruling party.  He submits that the authority’s [sic] torture individuals in order to obtain information about other people are involved in underground movements.  Given the applicant has travelled aboard and many underground organisation [sic] have their organisational headquarters abroad, the authorities would be even more suspicious of the applicant.  The Applicant submits that all these factors indicate that it is highly plausible that his house was raided after his departure for Australia. 

3. The lawyers also submitted a letter, purportedly from the Secretary General of Ginbot 7, which included the following paragraph:

   [MZZDK] is a member of the Ginbot 7 network in Australia.  He is a tireless individual who has a track [sic] in fighting the tyrannical regime of Meles Zenawi.  Ginbot 7 has no illusion that if [MZZDK] was forced to return to Ethiopia that he would gravely suffer in the hands of the agents of the repressive regime that has been spending millions of dollars spying on individuals that have sympathy or affiliation to Ginbot7 organisation.  It is out of our serious concern for the life and liberty of [MZZDK] that Ginbot7 besieges the authorities of the government of Australia to consider his case for asylum positively and provide him with the protection he badly needs. 

4. Then, in the course of the hearing before the Tribunal, the following exchanges occurred:

   Member: Thank you.  The other issue that’s raised in the submission that’s made on your behalf is that you fear that you will be harmed if you went back or you would face adverse treatment if you went back to Ethiopia now because you lived in or been to [sic] a Western country.  Can you explain what that means?

   Appellant: Yeah.  When I say that is for example the most of that (indistinct) are in exile outside of their country or that, most of them in away some country.  So the government wants (indistinct) that I (indistinct) connection with them (indistinct), maybe take something was made to go back, even if that is another (indistinct) I’ve got ---

   Member: In terms of that, I mean your government sponsored you essentially, it seems to me your government essentially sponsored you to come to Australia on your visitor visa.  So it would seem to me that in one sense you’re here with your government’s approval and you came here with your government’s approval and support...

   Appellant: That incident happened with my arms, and then secondly after I came here from (indistinct) Island and like I told you I coming (indistinct) I have a connection with the (indistinct) in exile.  So all this (indistinct) and more exposed to danger in my life.

   …

   Appellant: This is just like – I’m just saying, you know, that I have (indistinct) decided, but the main thing I’m telling you is with what happened or with the evidence they’ve got there at the moment or currently standing, on the top of that here, here my (indistinct) more connection with the opposition or the – how do you call it, anti-government people in exile, (indistinct) contact.  That’s more – this is to – they can connect.

5. In these passages there appears to be an attempt by the appellant, which is unclear because of the difficulties in the recording, to articulate a danger which arises from his connection outside Ethiopia with people who were opposed to the government.  The Tribunal should have understood from this discussion that there was a separate claim made by the appellant. Such claim was that by reason of his activities in Australia and whether he was likely or not to be politically active on return to Ethiopia, the appellant would face great danger on return because the government would take action against him for his membership of Ginbot 7 in Australia.

6. That claim was not dealt with by the Tribunal.  Failure to deal with a claim raised on the evidence even though not clearly articulated constituted jurisdictional error and therefore, the Federal Circuit Court was wrong in failing to quash the decision of the Tribunal. 

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       5 March 2014