MZZDK v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 919

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZDK v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 919

Catchwords:
MIGRATION – Application for review of Refugee Review Tribunal decision – seven grounds of amended application not made out – additional oral submissions alleging unfair conduct by Tribunal at hearing – examination of transcript not supporting allegations – application dismissed. 

Legislation:

Migration Act 1958 (Cth), s.424A

Applicant: MZZDK

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1528 of 2012

Judgment of: Judge Burchardt

Hearing date: 30 May 2013

Date of Last Submission: 24 July 2013

Delivered at: Melbourne

Delivered on: 9 August 2013

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr McDermott

Solicitors for the Respondents: Australian Government Solicitor

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, Multicultural Affairs & Citizenship”.

2. The application is dismissed. 

3. The applicant pay the first respondent’s costs. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1528 of 2012

MZZDK

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

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 26 October 2012.  The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa. 

2. The applicant’s Amended Application lists seven (7) grounds.  The applicant additionally raised other matters both in his written submissions and more particularly in an oral submissions made before the Court. 

3. For the reasons that follow, I do not think the applicant’s criticisms are made out and it follows that the application must be dismissed. 

Some uncontroversial factual background

1. What follows is taken from the first respondent’s written submissions and does not appear to me to be controversial:

2. The applicant is a citizen of Ethiopia.  He is an academic employed in a Government Institution specialising in horticulture.  The applicant came to Australia in July 2011 (accompanied by colleagues) to undertake a short officially sponsored program of study. 

3. On 9 September 2011, the applicant applied for a Protection visa and that application was refused by the delegate on 28 October 2011. 

4. On 21 November 2011, the applicant applied for review of the delegate’s decision to the Tribunal, and on 29 May 2012 the applicant’s migration agent provided a written submission in support of the applicant’s claims. 

5. On 31 May 2012, the applicant appeared at a hearing before the Tribunal assisted by his migration agent and on 13 June 2012 the Tribunal invited the applicant to comment on or respond to information in a section 424A letter.

6. The applicant’s migration agent provided a further written submission in response to that request on 4 July 2012, attaching two letters.  The first was dated 18 June 2012 from Bameluaku Digafe, and the second was dated 20 June 2012 from Andargachew Tsege, the Secretary General of Ginbot7: Movement for Justice, Freedom and Democracy. 

7. As earlier indicated, the Tribunal affirmed the Minister’s delegate’s decision not to grant the visa. 

The material before the Tribunal

1. The first articulation of the applicant’s claims is set out at CB42-45 in a Statutory Declaration prepared by Messrs Florin Burhala Lawyers. 

2. The applicant deposed that he is a 29 year old male born in Ethiopia, being of Amhara ethnicity and Christian religion.  He is not married and has no children.  The rest of his family and siblings live in Ethiopia. 

3. The applicant deposed that in 2004 while he was attending university he became a staunch supporter of the Coalition for Unity and Democracy Party in Ethiopia and had actively supported that Party in the upcoming election for May 2005.  According to the applicant most of the CUD supporters were detained and he himself was put into Awassa Prison in June 2005.  He deposed that after about eleven (11) days of severe beatings, torture and persecution he was released with a stern warning never to become involved again in anti-government activities. 

4. The applicant deposed that following graduation, he was employed by Amhara Regional Agricultural Research Institute.  He deposed that he had been mistreated at various times and jailed.  He said he was constantly put under surveillance for his personal views and opinion and had also “been accused of being Sympathizer of an old (Amhara) regime for long and successive years.” 

5. The applicant deposed that he had voiced concern over misallocation of funds at annual evaluation forums where he had represented his research centre, and that his dedication and professional commitment caused him enormous difficulties with agricultural officers, all of whom were active Party members of the current government. 

6. As a result of the decline of the CUD Party the applicant deposed that he supported the Katedemena Party, also known as the Rainbow Party, and formed an underground organisation called the Ginbot 7.  He deposed that he was one of the organisers in the Wag-Last district and was successful in recruiting new supporters.  Ginbot 7 was listed as a terrorist organisation by the current regime and the authorities and ruling Party regularly torture members of Ginbot 7. 

7. The applicant deposed that the crackdown on Ginbot 7 members has been intensified in recent months and that soon after he arrived in Australia his main contact person in Ginbot 7 was exposed by government authorities and forced to provide information.  This person led the security forces to his home and the authorities had tormented his younger sisters to provide information about the applicant’s involvement with Ginbot 7.  He deposed that his sister had been beaten and was currently in hiding. 

8. The applicant deposed that finally the authorities took his computer and some of his documents.  He was told that the police had revisited his relatives looking for further evidence about his involvement with Ginbot 7.  The applicant deposed he had heard from a friend that the police were waiting for his return, as they wanted to harm him for his anti-government involvement. 

9. Scarcely surprisingly, the applicant deposed to a fear of returning to his country in the light of these matters. 

10. The decision of the delegate runs from CB69-81.  The applicant’s claims are set out.  They had been expanded somewhat at interview.  The applicant gave the delegate what might be described as more detail of the matters outlined in his earlier Statutory Declaration. 

11. While the delegate noted that the applicant was articulate, intelligent and well-informed about Ethiopian affairs, the kernel of the delegate’s findings is set out at CB79 as follows:

    “In light of the above country information, the preceding discussion, the applicant’s own admission of not being vocal and openly critical of the government since the May 2005 elections, the fact that he has been employed by the Ethiopian government for the last several years, the fact he recently completed his Masters degree and has been issued with an Ethiopian passport as recently as April 2011.  There is no evidence before me to indicate that the applicant is of interest to the Ethiopian authorities.  Therefore, I do not accept the applicant’s claim that his house was raided while he was in Australia and do not find the applicant’s account of events and experiences in Ethiopia as being credible.”

12. Messrs BMA Lawyers forwarded a submission on the applicant’s behalf to the Tribunal (CB91-113).  Not surprisingly, these took issue with the delegate’s findings (CB94-95) and offered the applicant’s explanation, as it were, for some of the adverse findings that the delegate had made.  Nonetheless, the submissions did not expand, so to speak, the scope of the matters the applicant was claiming. 

13. The Tribunal’s s.424A letter is set out at CB115-117. The letter put the applicant on notice, that the fact that he had been released from his duties in Ethiopia to attend a dry-land farming training program to be conducted by the Australian Government might be relevant:

    “… because if accepted, it may lead the Tribunal to conclude you were actively nominated and supported by the Government of Ethiopia to attend a well-regarded overseas training program relevant to your role in Government service.  If so this would be inconsistent with your claim to have been the subject of past persecution and harassment by the Ethiopian Government …(CB115)”

14. The letter also referred to the fact that the applicant had indicated in his evidence to the Tribunal that he currently resided in a rented house in Laverton with two other Ethiopian persons who travelled to Australia with him and who attended the same training course.  The applicant had indicated that both those persons had lodged their own protection applications but he was not aware of the basis of their claims, as they did not speak to each other about their claims as they were too busy working.

15. The letter recorded (CB116):

    “Tribunal records indicate both those persons have made individual protection visa applications, and that each of them claim to have become the subject of adverse interest in Ethiopia shortly after they arrived in Australia to participate in the training program.

    The reason this information is relevant to the review is firstly because if accepted, the Tribunal may reject as lacking credibility your claim that although you have lived with those persons for a considerable period of time, have similar backgrounds to them in terms of research and employment, have travelled with those persons to Australia as part of a group to attend a training program, and have all made protection claims, you have never discussed with them your protection claims.  It may also cause the Tribunal to reject as lacking credibility your explanation that the reason for this was because you were too busy working. 

    Secondly it may lead the Tribunal to conclude that the similarity of the assertion in each case that soon after arrival in Australia, each of you individually became the subject of adverse attention of authorities in Ethiopia lacks credibility, and was concocted to explain your ability to leave Ethiopia without difficulty on a government sponsored training program.”

16. The letter went on to detail the ways in which such a matter could operate upon the Tribunal’s reasoning. 

17. The applicant’s further written submission runs from CB119-122.  The submission does not, in my view, take the matter much further, although of course it took issue with the conclusions the Tribunal had indicated might be reached. 

18. The letter went on, however, to submit that the applicant has been continuously involved in Ginbot 7 while in Australia.  Documentation was attached to support this assertion. 

19. The submission noted that in June 2011, the Ethiopian Parliament declared Ginbot 7 a terrorist organisation and referred to country information about that.

20. At CB123 the letter from Bameluaku Digafe is set out.  It purported to assert that the applicant held anti-government views and otherwise supported his application. 

21. At CB124-125 is the letter from Andargachew Tsege, the Secretary General of Ginbot 7.  This letter was dated 20 June 2012 and purports to record the difficulties faced by Ginbot 7 in Ethiopia generally.  The letter asserted relevantly, in dealing with the applicant directly:

    “(Applicant) is a member of the Ginbot 7 network in Australia.  He is a tireless individual who has a track in fighting the tyrannical regime of Meles Zenawi.  Ginbot 7 has no illusion that if (applicant) was forced to return to Ethiopia that he would gravely suffer in the hands of the agents of the repressive regime …”

The Tribunal’s decision

1. The Tribunal commenced by setting out the application and the Relevant Law at CB138-140.  No criticism has been advanced of that analysis. 

2. At CB140-143, the Tribunal set out the Claims and Evidence.  In my view the Tribunal’s distillation of the material was perfectly accurate.  

3. At CB146 the Tribunal set out what took place before it.  This latter matter has been the subject of some criticism, with which I will deal later on. 

4. No assertion has been made, however, that the matters recorded by the Tribunal are in any material fashion inaccurate. The matters recorded as having passed between the applicant and the Tribunal suggest that the Tribunal’s s.424A letter arose directly from those interchanges.

5. The Tribunal reported the applicant’s response at CB148-149.  In my opinion the Tribunal’s analysis is an accurate one.  Having referred to Country Information at CB149-155, the Tribunal continued under the heading “Findings and Reasons” at CB 155-160. 

6. The Tribunal found that the applicant had come to Australia to attend a training program which was a joint program involving the Government of Australia and the Government of Ethiopia.  At the time of his nomination to attend that program the applicant was an employee of the Sekota Dry Land Agricultural Research Centre in Ethiopia, where he had been employed since 2005.  The Tribunal found that the Centre was a Government Research Centre.   Those findings are not and could not possibly be attacked (paragraphs 92-93, CB156). 

7. The Tribunal then dealt with the applicant’s membership of the CUD (paragraphs 94-95).  The Tribunal did not accept, on credibility grounds, the applicant’s account that he had ever been involved in political activity in Ethiopia.  It also did not accept he was ever the subject of past persecution in Ethiopia because of actual or perceived support of the CUD.  The Tribunal rejected all his claims in this regard and said (CB156, paragraph 95):

   “… In reaching this conclusion, it considers the fact he was, (on his own evidence), promoted in his professional role, funded to attend further tertiary studies to obtain a Master’s degree and nominated and permitted to attend an overseas training program to be entirely inconsistent with how a person targeted or identified as a critic of government would be treated.  The Tribunal also concludes his claim to have been “under surveillance” after 2005 lacked credibility, and considers that had he been targeted or identified as an opponent of government, or been under surveillance, he would not have been able to obtain his passport, maintain ongoing employment in a state funded institute, gain promotion within that institute, or be nominated and sponsored in 2011 to attend a training program in Australia, or to leave Ethiopia without difficulty.  The fact he was able to do all of those things leads the Tribunal to conclude he had no adverse profile or history whatsoever with the government of Ethiopia when he left in 2011, and rejects his claims to the contrary.”

8. The Tribunal then went on to deal with the applicant’s claim to fear persecution on return to Ethiopia because of his membership of Ginbot 7, and that his association with that organisation was not discovered by the authorities until soon after he left Ethiopia in 2011. 

9. The Tribunal once again rejected these claims on credibility grounds.  The Tribunal’s critical finding is at paragraphs 97 and 98, as follows:

   “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 of 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.”

10. The Tribunal went on at paragraphs 100-102 (CB158) to reject the applicant’s claims of possible persecution as a result of membership of a particular social group, being returnees from Australia or failed asylum claimers.  The Tribunal also dealt at paragraphs 103-104 with the applicant’s claims to fear persecution on the grounds of his Amhara ethnicity.  The Tribunal further noted at paragraph 106 that the applicant had correctly in his post-submission response identified what he had said at the Tribunal hearing about his dealings with his fellow students.  The Tribunal continued at paragraph 106 and 107:

    “106.    … The Tribunal has reviewed the hearing recording, and accepts that the assertion of the applicant on this issue is correct, and draws no adverse conclusion from that particular aspect.  It nevertheless rejects as lacking credibility, his explanation that three persons of the same nationality, with similar professional backgrounds, who met on a government sponsored training program in Queensland, and subsequently all decided to relocate to Melbourne where they were collectively housed together and later made protection visa applications at around the same time, would not speak to each other and discuss their respective situations.

    107.    The Tribunal also considers the similar nature of the claims, in that each asserted that shortly after arriving in Australia, authorities in Ethiopia raided their homes and discovered material they claim would create an adverse political profile for them suggests the current applicant’s claim that he and those other persons did not discuss or share details of their situation with each other is implausible.  This leads the Tribunal to reject that explanation, and to conclude that his claim of discovery of adverse information in his home after his arrival in Australia was concocted to explain why he was able to leave Ethiopia without difficulty on a government sponsored program.  This reinforces the Tribunal’s earlier findings that he lacked credibility generally, and to reject his claim to have a well-founded fear of persecution on return to Ethiopia for reason of his political opinion, ethnicity membership of a particular social group, or any other reason.”

1. The Tribunal went on to consider the complementary protection criterion and reached an adverse finding.

The amended grounds of application

Ground 1:  the decision of the second respondent was affected by legal error in that in recommending to the first respondent that the applicant not be recognised as a person to whom Australia owes protection obligation, the second respondent was not procedurally fair.

1. The applicant’s written submissions do not, so far as I can see, specifically address this ground.  In oral submissions the applicant complained that he had not been asked enough questions.  He said that the Tribunal had concentrated its questions on the question of his fellow asylum seekers and he had been repeatedly told to answer the Tribunal’s questions. He said he was given no opportunity to comment on his membership of Ginbot 7. The applicant also said he had provided the Tribunal with detailed information on the selection process for coming to Australia, which the Tribunal had not considered.

2. In view of the applicant’s assertions that the actual conduct of the Tribunal hearing was unfair, I directed the first respondent to file a copy of the transcript of the proceeding. 

3. I have read that transcript. In my view the applicant’s criticisms are simply not made out. Reading of the transcript shows the Tribunal introducing the matter in a way that seems to me to have been comprehensive and entirely fair. It shows interchanges between the Tribunal and the applicant which could not in any way be described as hectoring or unfair. The applicant was not in some unfair fashion told repeatedly to answer the Tribunal’s questions. The Tribunal did not concentrate on questions to do with the fellow asylum seekers. The Tribunal did ask questions to work out what had actually happened with those people but the questioning about the asylum seekers was by no means a major part of the proceeding (see transcript - page 42-43). The assertion that the applicant was not asked enough questions is not in my view made out. The Tribunal gave the applicant every opportunity to put what he wished and went to the trouble of a s.424A letter as well.

4. It is not the case that the applicant was not given an opportunity to comment on his membership of Ginbot 7.  The transcript shows that he was clearly asked questions about it.  The applicant was assisted by the attendance of his advisor and there is nothing to suggest that the applicant was unfairly precluded from putting what he wished to the Tribunal. 

5. Put shortly, I do not think that any of the criticisms advanced in the applicant’s oral submissions are made out including an assertion the Tribunal had not considered his witness. 

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.

1. This matter was touched on briefly in the applicant’s oral submissions.  He asserted that the Tribunal had not considered the risks he would face as a returning member of Ginbot 7 in the light of the law making Ginbot 7 a terrorist organisation. 

2. In reply counsel referred to paragraphs 97-99 of the Tribunal’s decision.  The fact is that the Tribunal simply did not believe the applicant as to his assertions as being a member of Ginbot 7.  It also did not accept that the applicant had in fact done anything more, at the most, than “possibly joining Ginbot 7 since arriving in Australia, and receiving emails of its newsletters.” 

3. The Tribunal found at paragraph 99 (CB158):

   “… 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.”

4. 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. 

Ground 3:  the Tribunal member fell into error by not having regard to the letter from Ginbot 7 which commented on the current treatment of Ginbot 7 members and supporters including their families and friends and my history of political engagement when making findings about my past political activities in Ethiopia. 

1. This ground contains two sub-parts.  The first is the letter from Ginbot 7.  The Tribunal correctly paraphrased the relevant parts of the letter at paragraph 60, CB149.  The Tribunal in fact gave the letter no weight for the reasons set out at paragraph 98.  Those findings were certainly open to the Tribunal in the circumstances.  The second part of the ground which refers to the applicant’s history of political engagement in Ethiopia is simply merits review.  That is not permissible.  In any event, in my view the Tribunal’s conclusions were open to it on the materials.  The fact is the Tribunal’s conclusion that the applicant would not have been able to come to Australia as he had if had had an adverse political profile seems to me entirely rational and reasonable.

Ground 4:  the Tribunal Member failed to properly consider my claims given he failed to consider any country information later than 2010 and therefore did not have regard to the fact that Ginbot 7 had been declared an illegal organization in mid June 2011.  He also failed to consider the new and abusive Ethiopian Anti-Terrorism proclamation containing an over broad and vague definition of terrorist acts which certainly put mean (sic) at risk.

1. The difficulty with this submission is that the Tribunal expressly acknowledged the applicant’s claim that Ginbot 7 had been declared a terrorist organisation and that its members face regular torture (see CB141).  The Tribunal was clearly well-seized of the proposition that members of Ginbot 7 were likely to face serious harm in Ethiopia.  The problem for the applicant is that the Tribunal did not think that the applicant had ever been a member of Ginbot 7 in Ethiopia and faced no risk upon return as a result of any membership he might have undertaken in Australia. 

Ground 5:  the Tribunal Member failed to consider the claim that I would face a risk of serious harm as a returnee who has been a member of Ginbot 7 in Australia. 

1. This is another iteration of the same ground already dealt with above. 

Ground 6:  a reasonable, rational Tribunal member would not have made the decision he made about my likely future political activities, in the face of evidence showing my membership of Ginbot 7 in Australia, an organization that was declared by the Ethiopian government to be a ‘terrorist organization’.

1. The Tribunal’s finding that the emails submitted at hearing were entirely generalised in their nature seems to me to be entirely consistent with their character, assuming, as I do, that they are the documents set out at CB129-134.  The evidence constituted by the letter from the purported Ginbot 7 official was dealt with, in my view perfectly satisfactorily, by the Tribunal at paragraph 98.  The criticisms the Tribunal advanced seemed to me to be rational and properly considered.  The Tribunal did not, in my view, fall into jurisdictional error in this regard. 

Ground 7:  the Tribunal Member failed to approach my matter with an open mind and made a value judgment on the fact that I had not known claims of my housemates.  He also failed to consider my responses to and comments on the post hearing invitation.

1. The first part of this ground is an attack upon the Tribunal’s conclusions arising out of its credit findings in relation to the applicant’s fellow students/housemates.  It should be noted that these findings were only said to buttress the adverse credibility findings already made.  In my view the Tribunal’s conclusion that the three persons who were in very similar, if not identical, circumstances who had lived together both in Brisbane and in Melbourne would have discussed their circumstances was one entirely open to it.  It does not disclose bias, but in my view might be better described as common sense. 

2. The second part of the ground, namely that the Tribunal failed to consider the applicant’s responses to and comments on the post hearing invitation is simply inaccurate.  The Tribunal clearly did consider the applicant’s post hearing submission (see paragraph 106, CB159) and paraphrased the material in some detail at paragraphs 58-61, (CB148-149).  In my view, the Tribunal clearly did have regard to the materials.  The applicant’s difficulty is that he was not believed. 

Conclusion

1. The above does the best that I can to traverse the various matters the applicant raised both in the amended application, his written and oral submissions, (which I have endeavoured to paraphrase where they added to the written submissions and grounds).  In my view, the Tribunal’s conclusions as to the facts of the matter were well open to it on the materials, and those conclusions indeed might fairly be thought to have been rational and sensible ones.  In any event, no jurisdictional error is disclosed and if follows that the application must be dismissed. 

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  9 August 2013