MZZLF v Minister for Immigration
[2014] FCCA 1298
•13 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZLF v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1298 |
| Catchwords: MIGRATION – Review of a decision made by the Refugee Review Tribunal – alleged failure of the Refugee Review Tribunal to afford procedural fairness – consideration of s.424 of the Migration Act 1958 (Cth) – no error found – application dismissed. |
| Legislation: Migration Act 1958, ss.65, 414, 424A(1)(a), 430 |
| Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 |
| Applicant: | MZZLF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 714 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 13 May 2014 |
| Date of Last Submission: | 13 May 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 13 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sorensen |
| Solicitors for the Applicant: | Goz Chambers Lawyers |
| Counsel for the First Respondent: | Ms Symons |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The Application filed on 22 May 2013 and the Amended Application filed 8 November 2013 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6646.00.
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLG 714 of 2013
| MZZLF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Revised from Transcript)
The applicant in this matter seeks judicial review of the decision of the Refugee Review Tribunal made on 17 April 2013 which affirmed a decision of the delegate of the first respondent to refuse the applicant a protection visa.
The applicant is a citizen of Ghana, he has Akan ethnicity and follows the Christian faith.
He entered Australian on 5 August 2011 on a bridging visa and lodged his application on 30 September 2011 for a protection visa. The applicant was interviewed a delegate of the Minister on 7 November 2011.
The applicant claimed to fear persecution on two grounds, actual or imputed political opinion and secondly a membership of a particular social group being a mining trade junior (see court book 270 to 271).
On 15 November 2011, the delegate refused to grant the applicant a protection visa. He then applied to the Refugee Review Tribunal for a merits review of the delegate’s decision. The applicant was assisted during the proceedings in the Refugee Review Tribunal by an interpreter and migration agent. The Tribunal ultimately confirmed the delegate’s decision on 19 June 2012.
Following this, the applicant made application to the Federal Magistrates Court (as it was then known) to seek a judicial review and an order was made on 29 November 2012 remitting the matter for reconsideration. That order was by consent.
The Refugee Review Tribunal heard the matter again on 2 April 2013, and again the applicant was represented by a migration agent and an interpreter. The Tribunal hearing took place on two separate occasions as was outlined in the reasons of the decision.
On 20 February 2013 an earlier hearing had taken place with the Tribunal (see paras. 55 and 95 of the decision). The tribunal ultimately affirmed the decision of the delegate not to grant the visa.
In the Tribunal’s findings the applicant made a number of significant claims before the Tribunal including:
a)That in June 2004 he worked in Ghana as a welder for an African Mining Service, an Australian company;
b)Upon commencing work at the Tarkwa mining site, he joined the Workers Mining Union;
c)That he became aware of the deaths of workers whilst on the Tarkwa site and reported these to his union leader;
d)That after submitting the report he was transferred to the Damani mining site where he became aware of deaths on the site. That he and another worker reported these incidents and started a petition to the union and that he was subsequently transferred to the Chirano site;
e)That he and the other worker were not informed about incidents on the site and prevented from attending union meetings and that during this time six people died on the site;
f)That one evening he was witness to the death of a co-worker, after approaching the union he and the worker he had met earlier organised a protest;
g)That he was arrested at the protest and chained to a wall for five days and that this caused permanent scarring as a result;
h)That following his arrest and he was afraid to organise more protests and as an alternative he and the other worker he had met sent a petition to the union president and that the union president warned him and the other worker not to engage in any communication under the union without approval and sent them messages and threatened to kill them;
i)In April 2011 he and the other worker were offered to be sent to Australia for training and they completed this course on 19 August 2011;
j)That during this time he was contacted by a friend in Ghana saying there is a plan to kill him and his co-worker upon his return to Ghana, and following this his co-worker fled to Canada.
The Tribunal, after traversing the claims and the evidence before it and the evidence that had been given on the previous occasion, before a differently constituted Tribunal, carefully considered the credibility of the applicant’s claims of past harm. The Tribunal accepted that he had worked at a number of different mines but found that he had been transferred between the various mine sites for operational reasons, saying:
144. Based on the inconsistencies in the applicant’s evidence, the Tribunal does not accept that the applicant reported any problems or issues to his foreman, to the union or to anybody else at AMS or GWMU while working at the Tarkwa site. It finds that he was transferred out of that site for operational reasons.
…
148. Based on the above inconsistencies, the Tribunal does not accept that the applicant witnessed any accidents, that he started a petition or reported any matters to AMS management or to the GMWU while employed at Damanh or that he was relocated out of that sight as a result of this.
The Tribunal also rejected his claims concerning the protests, arrest and detention by the police.
On the basis of inconsistencies in versions that he had given, the Tribunal ultimately rejected all of his significant evidence on these matters on the grounds of credibility.
Grounds
The applicant relies upon six separate grounds of judicial review as set out in his application.
Ground 1
In his Amended Application, the applicant frames his first ground as follows:
1. The decision of the Second Respondent was made in breach of an imperative duty imposed on it or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse the application and its powers to conduct a review under s414 of the Migration Act 1958. The Second Respondent exceeded its jurisdiction and/or constructively failed to exercise jurisdiction: The Second Respondent failed to properly take Membership of Trade Union into account as basis of persecution:
Particulars
(i) At page 9 of his reasons for decision, the delegate accepts that the applicant was an employee of African Mining Services and a member of the Trade Union
(ii) The delegate further admitted that there are evidence of widespread violation of human rights in mining areas of the county.
(iii) Further, the delegate stated that he ‘personally witnesses scars on the applicant’s body which concur with his account of being handcuffed for a week and beaten up for the same reason.
(iv) At the hearing the Applicant produced photographs of the injuries to body and the Tribunal neither disputed the source of the injuries nor put the applicant on notice of its intention to dispute the source of the injuries.
(v) Further, at the hearing the Applicant gave evidence that merely being a member of Mining Union would put him in danger persecution if he returned to Ghana.
(vi) Had the Tribunal properly taken into account the Applicant’s membership of Mining Union and the documented abuses they face in that country, the Tribunal might have arrived at a different decision. The Applicant intends to produce a copy of the hearing transcript on or before the hearing.
The Tribunal clearly traversed the questions of the applicant’s evidence about his involvement with the company and the mining union and the events that took place, as set out above in paras. 144 and 148 of the Tribunal’s decision. The Tribunal rejected the aspects of this evidence. Ultimately, the Tribunal rejected his claims that the authorities wished to harm him, saying:
170. In light of the Tribunal’s credibility findings, the Tribunal does not accept any of the claims of past harm. The Tribunal does not accept that the applicant was ever perceived as a trouble maker by AMS, the authorities (including both the police and soldiers) or by GWMU officials (who were not genuinely defending the interests of mining employees), or that anyone ever threatened or attempted to harm him because of his activities during his period of employment with AMS. The Tribunal does not accept that the applicant was sent to Australia as part of a set up in order to kill him and his friend Victor Nimah. Quite the opposite, the Tribunal is satisfied that the applicant was considered to be a good employee and he was sent on a course to Australia to improve his welding skills. The Tribunal accepts the country information that if AMS wishes to get rid of the applicant, it would have dismissed him from his job without any reasons, as it is entitled to do.
171. The Tribunal does not accept the applicant’s claims that his employer or the Ghanaian authorities wish to harm him on the basis of his GWMU connection. The first Tribunal noted that the applicant gave evidence at the hearing that he was an ordinary union member and that he was not elected to any position within the union. The applicant has never claimed that he was victimised for being associated with or a member or supporter of the GMWU. He claimed that he was harmed, and will be harmed in the future, for his activities. In fact, he claimed that on occasions he felt compelled to act against the GWMU because the GWMU was reluctant or refused to act in the interest of employees. As the Tribunal has already rejected the applicant’s claims to have engaged in any such whistleblower or protest activities in the past, the Tribunal does not accept that the applicant faces a real chance of persecution because of his association with, membership of or support for the GMWU.
It does not seem to me that the Tribunal have failed to address these issues that have been raised by the applicant; rather that they addressed them in some detail. Not surprisingly, counsel in the hearing before me did not pursue this particular issue.
Ground 2
The second ground was set out and particularised as follows:
2. The decision of the Second Respondent was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by sections 65 and 414 of the Migration Act 1958 (Cth) in that it failed to identify and determine the major issues critical to the decision which was not apparent from its nature or the terms of the statute under which it was made and advise of any adverse conclusion which had been arrived at which was not obviously open on the known material and the failure to do so, constituted a jurisdictional error.
Particulars
The Second Respondent did not challenge what the applicant said, express any reaction to what he said, or invite him to give details on each of the following issues:
(a) That the photographs produced by the Applicant in support of his claim that he was arrested, detained and tortured were not acceptable without medical report.
(b) The Tribunal did not put the Applicant on notice that it lacked the necessary expertise to make finding that the injuries as shown on the photographs could not be received in any other manner other that the manner claimed (par 158).
It is clear that the applicant has a number of injuries which have been the subject of photographs that were tendered at the Tribunal hearing (see para.57 of the decision).
The key comments by the Tribunal in their decision are as follows:
84. The Tribunal advised the applicant that his overall credibility was an issue and that his alleged arrest and the manner in which he received the injuries on his wrists and body were also an issue. The Tribunal advised the applicant that the scars photos of which he had submitted could have been received in a number of ways; and that he could have been arrested for some other reason.
85. The Tribunal said that the scar on his wrist appeared to include stitches. The applicant stated that he had never had any surgery in his life, that is, the scars could not have been received in that way. The scars, he insisted, were received during his arrest.
88. The Tribunal said once more that it had difficulty accepting any of the claims of past harm. The applicant’s representative asked the Tribunal whether it accepted that the scars were received in connection with the claimed arrest. The Tribunal said that it had difficulty accepting that the scars were received from batons because the scars appeared to be from sharp objects. The applicant then took off his top and showed his back. He also showed his wrists and forearms. The scars appeared to be the same as those visible in the photographs. The Tribunal said it the scars may have been received at some other time.
158. The applicant did not provide any medical evidence in support of his claims about the manner in which he received the injuries on his back, neck and wrist. The Tribunal does not possess the necessary expertise to make a finding that the injuries could not be received in the manner claimed, that is, either when a person is being beaten with batons or when he or she falls over. However, the scars could have been inflicted in a variety of ways, for a myriad reasons and at any time before the applicant came to Australia. Based on the inconsistencies in the applicant’s evidence, the Tribunal does not accept that the applicant was ever detained or arrested, assaulted, injured or threatened by the police, the authorities, AMS or anybody else in connection with his employment. The Tribunal does not accept that he engaged in any activities such as organising or participating in demonstrations, preparing or signing petitions or statements for AMS, GMWU or the media in Ghana or abroad.
Notably, the Tribunal made the comments set out in paras. 84 and 85 and 88 at the earlier hearing sometime before the final hearing that the Tribunal had with the applicant and his representative.
There is no question that there is an absence of medical evidence with respect to what inferences can reasonably be drawn with respect to the applicant’s injuries.
It is clear that the Tribunal identified at least two aspects of the injuries which caused the Tribunal to have concerns as to whether the injuries were even consistent with the claims that the applicant made, namely:
a)That the injuries appeared to have been caused by sharp objects when the applicant’s claims related to them being a result of being struck by a baton or falling down after being struck by a baton; and
b)That the injuries to him also occurred as a result of him being handcuffed at the police station, as the Tribunal identified that there appeared to be marks around the scar on his wrist which appeared similar to stitches.
Evidence of injuries is often an issue that the Tribunal must confront. The difficulty with injury evidence is that the existence of an injury of itself does not necessarily prove how that injury has been brought about. In some cases, the nature of the injury may be so unusual that it is apparent, or at least apparent to a medical expert, that the only likely way in which the injury could be caused is as a result of mistreatment. Of course, in many cases, an injury that a person has could equally be consistent with a variety of causes, from the mundane, like slips and falls or minor accidents, through to vehicle, traffic and work accidents and other causes.
When one looks closely, many people have some minor injury that they can point to as they grow older. In other cases, an injury may be consistent with abuse or mistreatment. Of course, in some cases, the absence of an injury may be inconsistent with the version of events that that person gives. This leaves the Tribunal in a difficult position, and requires the Tribunal to carefully consider whether or not the Tribunal accepts that a particular injury has occurred, and then to carefully analyse whether or not that injury of itself is consistent with the version given by an applicant, and also whether there is evidence which shows that the injury is inconsistent with other versions or other possible causes.
In the majority of cases, an injury will be consistent with the version being given, but also consistent with a huge range of mundane causes for such injuries occurring in day to day life. In this case, the Tribunal has identified reasons why it doubted whether the injuries were, in fact, consistent with the version given by the applicant. However, it is apparent from para.158 that the Tribunal did not proceed to make a formal finding in that regard, because it was of the view that it did not have the necessary expert evidence and did not have the medical expertise to make such a positive finding. The finding that the Tribunal did make, that the injuries that they accepted the applicant had were consistent with a variety of causes, seems to me to be unremarkable.
It was strongly pressed that for the Tribunal to make a finding that an injury is consistent with a variety of causes and take it no further is a jurisdictional error on the part of the Tribunal. To take that argument to its logical conclusion, the Tribunal would have to make a finding as to the cause of any given injury that may be consistent with the version the applicant has given.
This is, when one thinks about it, quite simply impossible. The applicant is the only person who knows the causes of the injuries that appear on his body. He has given a version that the Tribunal must assess. To say that the Tribunal on that limited information must identify the specific cause of injuries, which could be from a variety of events unrelated to the version the applicant has given, would make it impossible for the Tribunal to ever reject an applicant’s version if an applicant was able to show any form of injury.
More rationally, the Tribunal must consider that evidence as part of the evidence generally. That is, is it inconsistent with the applicant’s version or is there evidence that the injury is of such a nature that it is strongly supportive of the applicant’s version or only consistent with the applicant’s version. In this case, the injuries as described are evidently consistent with a variety of causes.
The Tribunal then went on to consider in considerable detail the applicant’s version of events that were given to make careful findings of credibility. Based upon the consistency of the versions, or I should say inconsistency of the versions that the applicant had given over time, I find no error in the Tribunal approaching the matter in this way. It appears to me to be entirely consistent with the authorities and the findings that were obviously open to the Tribunal on the material that was before it.
To the extent that the argument suggests that the Tribunal should have notified the applicant that it did not have expertise in medical matters, it seems to me that, firstly, it would have been apparent that the Tribunal member was not a medical expert, and secondly, the comments made by the Tribunal, as recounted at paras. 84, 85 and 88, would clearly have put a reasonable applicant on notice and in this case the applicant was also supported by a migration agent. I do not find that this amounts to any procedural unfairness to the applicant.
Ground 3
The third ground is set out as follows:
3. The Second Respondent erred in that the Tribunal misconstrued and misapplied the definition of “refugee” and “persecution” as provided for in section 91R of the Migration Act 1958
Particulars
The Tribunal accepts at paragraph 121 of its reasons for decision that the applicant was member of the Ghana Mine Workers Union. The Tribunal further accepts at paragraph 111 that country information before it indicates that union activists in Ghana are being targeted. However, the Tribunal failed to consider the applicant’s subjective state of mind following such treatment of union workers.
The third ground in this case addresses whether or not there was a finding as to the applicant’s subjective fear. If the applicant is unsuccessful in establishing his other grounds, this ground is not sufficient to allow him to succeed. As I have not found that the applicant is successful on other grounds, I do not need to address this matter.
Ground 4
The fourth ground set out in the application is in the following terms:
4. The Second Respondent in arriving at the Tribunal’s decision failed to afford procedural fairness to the applicant in that it did not provide the applicant with information required under section 424A of the Migration Act, and the failure to do so, constituted a jurisdictional error.
Particulars
(i) The Second Respondent did not provide the applicant with the following information prior to the hearing:
(a) A copy of the hearing transcript of the Tribunal differently constituted referred to in the Second Respond decision.
(b) Documentary evidence relied upon by the Second Respondent to rebut the Applicant’s claim that the interpreting of the hearing of the Tribunal differently constituted was inaccurate.
( c) The lengthy country information referred to in its decision prior to the hearing or prior to the Tribunal’s decision being handed down. The country information specifically relates to the applicant’s claim and formed the reason, or part of a reason for affirming the decision under review
It also addresses the question of medical expertise. In this regard, I refer again to the paragraphs set out above of the Tribunal’s reasons in dealing with the medical expertise.
It does not seem to me that section 424A of the Migration Act 1958 addresses this issue. Subsection 424A(1)(a) requires that the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review …
In this case it appears to me that the particulars as may be required are more than adequately set out in paras. 84 and 85 of the Tribunal’s reasons. The fact that there is an absence of expert medical evidence and expertise by the Tribunal does not appear to me to be a piece of information contemplated by section 424A, but rather a part of the reasoning process of the Tribunal member.
Nor is this a case where perhaps some form of Jones v Dunkel ([1959] HCA 8; (1959) 101 CLR 298) inference may have come into play, (that is where there was evidence one would have expected the applicant to produce but he chose not to), for example another witness such as his co–worker, who clearly, on the evidence, has gone to another country and was not available and an inference must not be formed against him in this regard.
The evidence about the injuries was presented before the Tribunal. The Tribunal squarely considered it. It was open at any stage prior to the decision for the applicant to provide expert medical evidence on this issue. He chose not to provide such evidence. And indeed, from reading the face of the Tribunal decision, it seems not unlikely that it may well have been a strategic decision on his part not to put that evidence before the Tribunal (or not to seek it out), particularly given the comments of the Tribunal about the nature of the injuries and the potential of them being inconsistent with being struck by a baton and stitch marks being inconsistent with the applicant’s alleged cause of injuries at the police station.
I do not accept that this ground can succeed.
Grounds 5 and 6
Grounds 5 and 6 of the applicant’s application are really catch‑all grounds, set out as follows:
5. The Second Respondent erred by failing to comply with the rules of natural justice in conducting the review because the Tribunal failed to give the Applicant an opportunity to answer the matters going to his credit referred to in the Tribunal decision.
6. The Second Respondent failed to comply with Section 430 of the Migration Act 1958 in that its written statement of reasons did not set out the reasons for its decision and/or the findings of fact were based.
Particulars
The Second Respondent merely noted that it was possible that the Applicant’s injuries could have been sustained in any way, rather than stating a conclusion as to whether they had been sustained in the way the Applicant alleged and did so without reference to the other evidence of persecution of members of the Ghana Mine Workers Union.
The grounds ensure that it is clear that the applicant relies upon s.430 of the Migration Act 1958 and principles of natural justice in order to pursue the matters that are addressed above. In these circumstances, they don’t require further reasons beyond what is set out above.
As I have not found that the applicant has established any of his grounds, I must therefore dismiss the application.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 20 June 2014