MZZMS v Minister for Immigration

[2014] FCCA 1229

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZMS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1229

Catchwords:
MIGRATION – Application for judicial review – decision of RRT clearly open – no jurisdictional error shown.

Legislation:  

Migration Act 1958 (Cth), s.36(2)(aa)
1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

First Applicant: MZZMS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 893 of 2013

Judgment of: Judge Burchardt

Hearing date: 4 April 2014

Date of Last Submission: 4 April 2014

Delivered at: Melbourne

Delivered on: 19 June 2014

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Mr McDermott

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application filed 24 June 2013 be dismissed.

2. The Applicant is to pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 893 of 2013

MZZMS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 7 March 2013 by which the Tribunal affirmed a decision of the delegate not to grant the applicant a Protection (Class XA) visa.  The grounds of application are that the decision of the Tribunal “is affected by an error of law” and “takes into account irrelevant considerations.”

2. The Affidavit filed 24 June 2013 in support merely annexes a copy of the Tribunal’s decision.  The applicant has not filed, despite being permitted to do so by Registrar Caporale’s Orders on 4 September 2013, any amended application or contentions of fact and law.  This is not a criticism of the applicant, but it explains why the Court has but little to go on other than the materials in the Court Book filed 26 September 2013 and the first respondent’s Contentions of Fact and Law filed 28 March 2014. 

3. When the matter was before the Court, counsel for the first respondent first submitted that the decision of the Tribunal revealed no legal error and pointed also to the fact that the applicant needed an extension of time for his application which was 74 days late.  Counsel submitted that the reasons for delay were not adequate.

4. The applicant indicated that having had the first respondent’s submissions explained, he now understood them.  His submissions which were made with the benefit of an interpreter were not, and once again this is not a criticism but arises out of his self-representation, always easy to follow.  I took him to say that his lack of English had been a difficulty for him, something I readily accept.  He said that he could only tell the truth and that he had been in danger in Benin. 

5. So far as delay was concerned, he said that his solicitor had told him he would have to pay a lot of money, which contributed to delay, and that he contacted the Department of Immigration and Citizenship (as it then was), the Asylum Seeker Resource Centre and Legal Aid for assistance.  He said that in Africa democracy is not understood and that in his country people are eliminated just like that.  He said that he was scared for his life and that what he was saying was the truth.

6. Counsel for the first respondent was otherwise content to rely upon the written contentions.

7. Those contentions set out the factual overview of the matter which I paraphrase as follows. The applicant is a citizen of Benin who came to Australia on a short stay business visa in February 2012.  He applied for a protection visa on 9 March 2012 and the delegate refused the Application on 31 May 2012.  He subsequently reviewed the matter before the Tribunal and then before this Court.

8. At paragraph 11 the written contentions assert:-

   In summary, the Applicant’s claims to engage Australia’s protection obligations relate to his political opinion as a senior member of the Parti du Renouveau Democratique  (the party), and his involvement with a high profile Presidential candidate (Mr H) of the L’Union fait la nation.  The Applicant claimed to be a target of the governing party (Cauri Forces for an Emerging Benin – the FCBE).  The Applicant claimed his house had been targeted and burned down because of his involvement in opposition politics and because he had demonstrated against the ruling Benin President.  The Applicant was forced to relocate within Benin as a consequence.  The Applicant claims to have regularly met with a journalist (Mr D), who was later killed by agents of the government.  The applicant also claimed to suffer as a resident of South Benin, as people from North Benin were the ruling elite and there was tension between the North and South.  The Applicant claimed if he returned to Benin, he would face imprisonment, torture and death.

9. The written contentions went on to summarise the Tribunal’s decision and the application to this Court.  The written submissions refer to a second Affidavit filed on 24 June 2013 by the applicant in which he sets out his endeavours to obtain assistance with his application for judicial review following receipt of the Tribunal’s decision.  The applicant deposed that he sought help from a licensed migration agent, that he had, with the agent’s assistance, written to the first respondent, that he had discussed with the agent the substantial costs of any application to the Court, and his endeavours to engage the assistance of both the Department of Immigration and Citizenship (as it then was) and the Asylum Seeker Resource Centre. 

10. It should be noted that there was no application to cross-examine the applicant in relation to these matters and I therefore accept that what he says is true.

11. In the circumstances I would be prepared to give the applicant, whose lack of familiarity both with the English language and the legal system in Australia is patent, the benefit of the doubt and I would therefore otherwise be minded on that ground alone to extend time.  The more important issue, however, is whether time should be extended given the applicant’s chances of possible success.

12. The applicant’s claims were initially set out in his visa application at CB 29-32.  They clearly raise the possibility of serious harm within the meaning of the Migration Act 1958 (Cth) (“the Act”) because of his membership of the Democratic Renewal Party (“PRD”) (using the French acronym Party of Democratic Renewal). He deposed to his house being burnt down and that he would face torture, imprisonment and death if returned. He also raised the issue of being from the south of Benin (wrongly asserted as the north on CB 30). The applicant submitted a number of documents, some in French and some translated, in support of his application (CB 61-80).

13. The decision of the delegate is at CB 84-97.  At CB 91 the delegate asserted:-

    Having examined the evidence provided and the applicant’s claims and responses at interview in the context of relevant country information described below, I have doubts about the authenticity of his claims and whether his fear of persecution is well founded in an objective sense.

14. At CB 92- 93 the delegate recorded:-

    Country information indicates that the 2011 elections were largely peaceful and that while some demonstrations occurred, there were few recorded instances of police violence.

    Significantly, there are no recorded instances of politically motivated killings or disappearances, although the applicant provided newspaper evidence regarding the murder of Pierre Urbain Dangnivo, a journalist and member of the Social Democratic Party, in August 2010. 

    Moreover, notwithstanding country information, given the discrepancies and lack of evidence outlined below I am unconvinced that the applicant fears persecution because of his claimed political involvement in the DRP.

15. The delegate went on to find at CB 93-94 that the applicant did not face a risk of serious harm if returned to Benin because of various discrepancies in the evidence that the applicant provided to the delegate.

16. The delegate also considered the complementary protection regime in s.36(2)(aa) of the Act and came to the same conclusion, namely that the applicant was not credible and therefore did not face a risk of significant harm within the meaning of the Act were he to be refouled.

17. The applicant’s letter to the Tribunal appealing the decision (CB 104-105) essentially repeats his earlier claims.

18. These claims were essentially repeated again in a further letter at CB 119-121.

19. The Tribunal’s decision is at CB 130-148.  The Tribunal set out the application for review and the relevant law at CB 131-133.  The Tribunal’s paraphrase of the legislation, in my view, is not open to criticism.

20. The Tribunal paraphrased the claims and evidence at CB 133-136.  Once again, this paraphrase does not seem to me to show error. 

21. The Tribunal traversed the matters asserted at the hearing at CB 136-139.

22. The applicant provided further material at the Tribunal hearing in relation to the assassination of a judge and the death of Mr Dangnivo (paragraph 43, CB 136).  He said he was a Muslim and a Yoruba by ethnicity.  He gave details of the current location of his family.  It is fair to say that the Tribunal traversed with the applicant his claims as to political persecution on account of the party that he supported.  It is clear that the Tribunal put it to the applicant that some of his evidence in relation to the demonstrations and burning down of his house was somewhat vague (paragraph 60, CB 138).  The applicant asserted that he had met with Mr Dangnivo regularly and the Tribunal put various doubts about this to him (paragraph 61, CB 138). 

23. It is not necessary to traverse the Tribunal’s recording of the hearing. There is no reason to doubt its accuracy. 

24. The Tribunal then set out country information at CB 139-144.  This, it could be fair to say, can be paraphrased as suggesting that Benin is a constitutional democracy that has conducted elections felt generally to be free and fair, albeit that the elections most recently held in March 2011 had given rise to some measure of disputation. 

25. The Tribunal’s findings and reasons are at CB 145- 148.  The Tribunal accepted that the applicant was a member of the PRD, but had reservations (paragraph 90, and following CB 145-146).  The Tribunal said:-

    However, the applicant was unable to state what his official position in the PRD was despite repeatedly claiming that he was a senior ranking party functionary and even according to his own evidence his political activities were rather limited. 

    Despite his claims that he was close to the leader of the PRD, and attended numerous meetings at his house, the applicant said he was not in contact with, nor could he provide any contact details for Mr Houngbédji. As noted above the Tribunal attempted unsuccessfully, through the Department of Foreign Affairs and Trade, to contact Mr Houngbédji in order to verify the applicant’s claims that he is a high ranking member.  Because of the gaps and inconsistencies in the applicant’s own evidence, the Tribunal is not satisfied that the applicant was a senior ranking party official. 

    The Tribunal found the applicant’s evidence about his alleged political activities and link to Mr Dangnivo, which he claimed led to the destruction of his house, unpersuasive and vague.  The Tribunal had to ask the same questions over and over again to elicit an answer that went beyond general pronouncements about the political situation in Benin. In addition, the activities were of a limited nature, even if the Tribunal were to accept them in their entirety, which it does not.

    The Tribunal considers that the applicant based his claims around the murder of Mr Dangnivo – which it accepts occurred – and manufactured a connection between himself and Mr Dangnivo, based on the following concerns.

    The Tribunal has identified a number of problems with the applicant’s evidence. First, the Tribunal has been unable to find any information of any anti-government protests or the destruction of any property of government opponents in August-September 2010 after Mr Dangnivo disappeared.  The applicant claimed that there were no press reports about the anti-government protests in August-September 2010 because there is media censorship in Benin and such things do not get published.  The Tribunal considers that if there had been such a crackdown, it would have been reported in Benin or abroad either by the media or by human rights organisations. 

    Secondly, despite the Tribunal’s repeated attempts to get even approximate dates of the alleged demonstrations, or the number of people who participated in them or the date of the alleged destruction of the applicant’s house, the applicant was vague and evasive and did not provide such details.

    Thirdly, the applicant’s evidence was that Mr Dangnivo provided information to the PRD (the applicant’s party) about fraudulent activities, particularly by the President.  After the Tribunal asked the applicant more than once to provide further details about the applicant’s link to Mr Dangnivo and these alleged corruption revelations, the applicant said that they met a number of times at the house of Mr Houngbedji.  When the Tribunal pointed out that he and Mr Dangnivo were from two different parties, the applicant insisted they met because their two respective parties formed part of Build the Nation Union. When the Tribunal pointed out that, in addition, Mr Dangnivo lived in a different place to Mr Houngbedji, the applicant’s explanation was that the two places were not far apart.  The Tribunal finds it implausible that Mr Dangnivo, who was from another party and living in another city, would have been going on a regular basis to meetings of the PRD. 

    Fourthly, the applicant’s evidence was contradictory.  In his written application he claimed that after the 2011 elections he “contributed to the community demonstration that took to the streets”.  During the Tribunal hearing he claimed that after his house was burned down in 2010 – he was never able to provide even an approximate date but it was after a demonstration in relation to Mr Dangnivo’s disappearance on 17 August 2010 – he had to keep a low profile because he was concerned for his safety. The written application makes no mention of any demonstrations or protests in the wake of Mr Dangnivo’s disappearance.

    Fifthly, the applicant in his written application stated that he lived in Porto Novo from January 2001 until February 2012.  He made no mention of Adjohoun whereas during the hearing he claimed he was able to avoid harm in Benin, and remained there for more than 12 months after the alleged destruction of his house, because was in Adjohoun.  While the omission may be due to the fact that the applicant may have continued to consider Porto Novo to be his home, it is an important inconsistency. 

26. The Tribunal went on to refer to several other matters and found that the applicant was not a credible and truthful witness (paragraph 102, CB 147).  The Tribunal did not accept the applicant’s claim to be a high ranking party official, that he participated in any demonstrations after Mr Dangnivo disappeared or at any other time or suffered the other misfortunes that he had asserted. 

27. The Tribunal went on to say at paragraph 103, CB 147:-

    Based on the country information, the Tribunal finds that as an ordinary member of the PRD or Build the Nation Union, the Tribunal finds that the applicant is not of any interest to the authorities now or in the reasonably foreseeable future if he returned to Benin. 

28. The Tribunal accepted that there is a north-south divide in Benin, as the applicant asserted, but did not accept that that, without more, would lead the applicant to be at risk. The Tribunal was not satisfied that the applicant’s fear of persecution was well founded and rejected his claim, both under the Convention and the complementary protection regime in s.36(2)(aa) of the Act.

29. It should be noted that while the Tribunal’s finding as to the complementary protection regime criterion at paragraph 106, CB 147, is short, it is clear from reading the decision as a whole that the Tribunal had turned its mind to consideration of the question, but found against the applicant because of the findings it had made as to the facts.

30. The findings made by the Tribunal were credibility findings made by the Tribunal following a hearing at which the applicant had appeared before it.  Such fact finding is quintessentially the province of the Tribunal itself. 

31. At the very least it seems clear to me that the Tribunal’s findings were reasonably open to it and, in making those findings, the Tribunal did not fall into jurisdictional error. 

32. It follows that the application must be dismissed with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  19 June 2014