Nyoni v MIMA

[1998] FCA 544

FEDERAL COURT OF AUSTRALIA

MIGRATION - refugee - protection visa - real chance of persecution - subjective and objective test - threats from relatives in context of domestic dispute - whether harm feared by applicant was for a Convention reasons - whether incorrect application of applicable law - whether no evidence to justify the making of a decision

Migration Act 1958 (Cth) ss 476(1)(e), 476(1)(f), 476(1)(g)

Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 followed
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 followed
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 applied
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 followed
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221 followed
Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 followed

CLEVER EMISON NYONI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
VG 765 of 1996

FINKELSTEIN J
19 MAY 1998
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 765 of 1996

BETWEEN:                 CLEVER EMISON NYONI
   Applicant

AND:   MINISTER FOR IMMIGRATION & MULTICULTURAL   AFFAIRS
   Respondent

JUDGE:	FINKELSTEIN J
DATE OF ORDER:	19 MAY 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application is dismissed.

1. The applicant pay the respondent’s costs of the application.

Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 765 of 1996

BETWEEN:	CLEVER EMISON NYONI Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	FINKELSTEIN J
DATE:	19 MAY 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

HIS HONOUR: This is an application under s 476(1) of the Migration Act 1958 (Cth) to review a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs that the applicant, Mr Clever Emison Nyoni, is not entitled to a protection visa under s 36(1) of the Migration Act.

To be entitled to a protection visa an applicant must satisfy the Minister that he is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.  Such an obligation is owed to a person who -

“owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;”

The applicant did not satisfy the delegate or the Tribunal that he was such a person. 

The following is a summary of the material facts taken from the reasons for decision of the Tribunal.  The applicant is a national of Zimbabwe and a member of the Ndebele tribe.  When he was 19 years old he obtained a scholarship to study pharmacy in the Soviet Union.  The scholarship was granted by the Zimbabwe African Peoples Union (ZAPU) a black nationalist party.  When the applicant completed his studies in the Soviet Union he return to Zimbabwe in 1985.  For a time he worked at a hospital and between 1987 and 1989 he was a lecturer at the University of Zimbabwe.  By that time the white minority government had conceded democratic rule to the black majority in Zimbabwe and the Zimbabwe African National Union (ZANU) had taken power.  ZANU is dominated by members of the Shana tribe.

The ZANU dominated government was involved in serious human rights abuses that were particularly directed against the ZAPU people.  While at the University the applicant was involved in organising anti-government activities that included giving speeches at student rallies and writing articles that were published in student newspapers.  This led to the applicant being cautioned both by the police and by officials from the University.  He was warned that if he continued with his anti-government activities he would find himself in trouble.  The precise nature of this “trouble” is not identified.

In 1987 the applicant met the woman whom he was to marry in 1992.  Shortly after they met they commenced to live together in a de facto relationship.  In 1988 the woman had a child.  The applicant did not believe that he was the father of the child but in order to maintain their relationship he accepted the child as his own. 

In 1989 the applicant came to Australia on a student visa.  He enrolled in the Victorian College of Pharmacy as a candidate for a degree of Doctor of Philosophy.  The applicant’s de facto wife remained in Zimbabwe.  Initially the applicant told his de facto wife that he wished to end their relationship.  But he returned to Zimbabwe for the purpose, among others, of sorting out his relationship with his de facto wife. 

While in Zimbabwe cousins of his de facto wife who were employed in the Central Intelligence Organisation of Zimbabwe (CIO) made threats against the applicant.  Again the nature of these threats is not disclosed.  The applicant did not take the threats seriously.  He believed that they were the result of the disharmony between the applicant and his de facto wife.  In the end the applicant decided to marry his de facto wife and that marriage took place on 15 January 1992. 

The applicant and his wife intended to travel to Australia so that the applicant could complete his studies.  The applicant’s wife was required to undergo a medical examination for the purposes of obtaining a visa to travel to Australia.  This examination disclosed that the applicant’s wife was HIV positive.  For this reason she was refused a visa.  It was around this time that the applicant discovered that his wife was a member of ZANU and had participated in its struggle for liberation.

The applicant’s wife accused the applicant of infecting her with the HIV virus.  Not surprisingly this caused a good deal of matrimonial discord.  Shortly after it was discovered that the applicant’s wife was HIV positive the applicant received two visits from men who identified themselves as cousins of his wife.  The applicant also believed these men to be members of the CIO.  The men said that they were aware of the applicant’s past political activities and threatened to kill him.  The threats were made in the presence of the applicant’s wife.  Notwithstanding that these threats were made the applicant did not suffer any physical mistreatment at the hands of his wife’s cousins or at the hands of anyone else. 

The applicant returned to Australia on 28 February 1992.  He divorced his wife on 2 April 1993.  He has had no dealings with his former wife since that time. 

The applicant’s student visa was due to expire in June 1995.  In that year he applied for a residency visa in New Zealand but this was refused.  He then applied for a protection visa on 5 June 1996.  It is the refusal to grant that application that gives rise to the present proceeding. 

As was explained by McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 at 354 :

“The [Refugees] Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with a tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return.  Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution.”

The reason the applicant asserts that he is entitled to a protection visa is his fear that if required to return to Zimbabwe he might be killed or injured by members of the CIO by reason of his past political activities.  The applicant asserts that the government would be powerless to prevent the CIO from carrying out the threats that its members had made in the past because it is “above the law”.

The Tribunal did not accept these assertions.  It did find that cousins of the applicant’s wife had made threats against him.  But it found that those threats were “by reason of family loyalty rather than for any political motive”.  The Tribunal accepted that the applicant had been active in expressing his political opinions while a lecturer at the University of Zimbabwe.  However, the Tribunal pointed out that this political activity was not of an extreme kind and the applicant did not face any adverse consequences by reason of that activity.  The Tribunal said that it “did not accept the applicant’s evidence that the authorities would ultimately have taken action against him because of his political activities, regardless of the domestic dispute, or that the domestic dispute simply provided the catalyst for what was bound to have occurred at some time in the future”.  Thus the Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations.

A number of grounds were put forward in support of the contention that the Tribunal erred in arriving at its decision. Placing reliance on the ground of review allowed by s 476(1)(e) of the Migration Act it was alleged that the Tribunal had incorrectly interpreted or applied the applicable law in finding that the persecution the applicant suffered was not for a Convention reason.  In particular it was alleged that although the domestic dispute between the applicant and his former wife was the catalyst for his persecution it was nonetheless for a Convention reason.  Alternatively, it was submitted that the Tribunal failed to approach the case on the basis that persecution could be for a number of reasons and provided one reason was a Convention reason that would be sufficient to require a finding that the applicant was a refugee.

What the Tribunal was required to determine in considering the applicant’s case was whether the applicant had a “well founded fear” of being persecuted for a Convention reason if the applicant was returned to Zimbabwe.  If the applicant was able to establish that he had a “well founded fear” of persecution then he would be a refugee within the meaning of the Convention.  The test for determining whether a putative refugee has a “well founded fear” of persecution requires the applicant to establish two propositions.  The first is a subjective element, namely that the applicant has a genuine fear of persecution.  The second is an objective element that there is a “real chance” of persecution: see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259.

The Tribunal clearly understood its task.  It considered whether the applicant had a subjective fear of persecution.  It found that he did.  No complaint is made about that finding.  It then considered whether the applicant’s fear was “well founded”.  It is in this respect that it rejected the applicant’s claim.  That rejection was based on two findings.  The first finding was that the threats that had been made by the cousins of the applicant’s former wife were not politically motivated.  The Tribunal’s finding was that the motivation for these threats was the domestic dispute that existed between the applicant and his former wife.  The second finding was that the applicant’s political activities were not of a character that would attract the attention of the security forces or the CIO.  The Tribunal reached this conclusion for a number of reasons.  First it said that the applicant had exaggerated his political activities in Zimbabwe.  It found that he had played down the role of his domestic dispute.  It pointed to the fact that the applicant had been able to leave Zimbabwe on a number of occasions without incident.  It also pointed to the fact that since his divorce in 1993 the applicant had heard nothing further from his wife and more particularly had not received threats of any kind.  The Tribunal also inferred from the fact that the applicant had lodged his claim for a protection visa some three years after his arrival in Australia and after his unsuccessful application for permanent residency in New Zealand that the applicant’s claim that he had a “well founded” fear was not a genuine one.

The Tribunal’s findings are all findings of fact.  As has been said on many occasions it is for the Tribunal to consider the evidence and make findings of fact.  It is not the function of the Court to review the material for the purposes of determining whether the Court, on that material, would have come to some different decision.  Once the Tribunal found as a matter of fact that the threats made against the applicant were not politically motivated and that the applicant’s political activities would not invite attention it was not possible for the Tribunal to find that the applicant was a refugee.  In arriving that decision the Tribunal did not incorrectly interpret the applicable law or the Convention.

Next it is alleged that the Tribunal failed to properly apply the test as to what amounts to persecution. Once again reliance was placed on s 476(1)(e). In amplification of this ground it was said that the evidence led before the Tribunal was not confined to the domestic dispute between the applicant and his former wife. That evidence concerned the position in Zimbabwe generally and the Tribunal erred by confining itself to the domestic dispute whereas it should have assessed the evidence as a whole to determine whether there was a real chance that the applicant would suffer persecution if returned to Zimbabwe.

This complaint has no merit.  The reasons given by the Tribunal make it quite clear that it did consider the position in Zimbabwe generally for the purposes of determining whether there was a real chance that the applicant would suffer persecution because of his political activities.  As I have already mentioned the Tribunal rejected the contention that as a result of the applicant’s political activities there was a possibility that he would be persecuted for a Convention reason.

The next ground put forward is that the Tribunal erred in relying on the United States Department of State Country Information Reports on Human Rights Practices as a source of evidence for determining what was the position in Zimbabwe.  It is not clear precisely what this submission entailed.  My impression is that the complaint was really directed to the weight that the Tribunal gave to documentary evidence received from the United States Department of State. 

I think that the respondent is correct in his submission that this complaint does not fit within a s 476(1) of the Migration Act which is exhaustive of the grounds upon which a decision of the Tribunal can be reviewed.  In any event, the weight to be given to evidence before the Tribunal is a matter for the Tribunal and so long as the Tribunal applies the correct legal test in dealing with that evidence its decision cannot be attacked.  Finally on this aspect I do not accept that the Tribunal gave undue weight to the United States country information.  The applicant himself had tendered evidence from other sources, especially reports from Amnesty International, that put a different light on the situation in Zimbabwe and the Tribunal took that evidence into account in deciding the case. 

The final basis upon which it was alleged that the Tribunal failed to properly apply the applicable law is the allegation that the Tribunal failed to consider that as a university lecturer the applicant was in a position to influence students and the broader community to a much greater degree than other citizens and therefore it was more likely that he would be persecuted by the government. 

There are two answers to this contention.  The first is that the Tribunal had regard to the fact that the applicant had engaged in political activity while he was a lecturer.  What it did not accept was that his political activities were of any significance or were of such significance so as to invite the attention of the government of Zimbabwe.  That is sufficient to dispose of this ground.  But in any case the complaint is really one that is directed to the findings of fact made by the Tribunal.  As I have sought to point out, proceedings by way of review are not designed to correct mere errors of fact if there be any.

The applicant then alleged that there was no evidence or other material to justify the decision of the Tribunal in that (a) there was no evidence to justify the finding that the persecution the applicant suffered was related only to a domestic dispute and (b) there was no evidence that the United States Department Country Information applies to a person in the applicant’s situation.

Section 476(1)(g) of the Migration Act permits a review of a decision of the Tribunal which is based on “no evidence”.  To make out this ground it is not sufficient to show that the impugned finding of fact was not reasonably open.  It is necessary to show that there was no material before the Tribunal that would justify its decision: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356. Further, before a decision of the Tribunal can be set aside on the basis that there was “no evidence” to justify that decision it is necessary to show that the erroneous assumption of fact was either the predominant reason for the decision or was a fact in a series of facts that constituted the basis of the decision: see Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 374; Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221.

As to the allegation that there was no evidence to justify the finding that the persecution the applicant suffered related only to his domestic dispute it seems to me to be clear enough that there was ample evidence to justify that finding.  The Tribunal had recounted the matrimonial history of the applicant and his former wife. It explained the circumstances in which threats were made by the cousins of the applicant’s former wife.  They occurred in the midst of disharmony between them both before and after it was discovered that the applicant’s former wife was infected by the HIV virus.   

As to the allegation that there was no evidence that the United States Department country information applies to a person in the applicant’s position the short answer is that having regard to the findings made by the Tribunal its reliance on this evidence was not crucial to its decision. 

The final ground of complaint is that the decision of the Tribunal was induced or affected by actual bias. Section 476(1)(f) permits a decision of the Tribunal to be reviewed on this ground.

Here, it is necessary for the applicant to establish that the Tribunal had brought a “closed mind” to the inquiry;  that is to say that the Tribunal had a pre-determined view of the outcome of the case.  The applicant relies on two propositions to make out the ground.  First he says that in its reasons the Tribunal had used much the same language as had the delegate when rejecting the applicant’s claim.  Thus it was said that it could be inferred that the Tribunal did not apply an independent mind to the decision making process.  Presumably the point is that the Tribunal merely adopted the views of the delegate.  The second proposition is that bias can be inferred from the fact that the Tribunal did not seek to balance the views expressed in the United States country information reports with other sources of information when those other sources were available. 

The allegation of bias is not made out.  None of the matters relied upon provides any foundation for the allegation.  I cannot infer from the fact that the Tribunal used similar language to that used by the delegate that Tribunal brought a closed mind to the case.  One reason for the use of similar language may be that the evidence before the delegate was much the same as the evidence before the Tribunal.  The complaint about there being a lack of balance in the material relied upon by the Tribunal is also unjustified for two reasons.  In the first place, the Tribunal did have before it evidence which demonstrated human rights abuses by the government of Zimbabwe from sources other than the United States country information reports and it considered that evidence.  Secondly, the applicant was free to lead any additional evidence on this point as he saw fit.  The Tribunal is not there to run an applicant’s case.  If an applicant thinks that the Tribunal would be assisted by receiving further evidence that applicant is entitled to lead that evidence and, subject to relevance, the Tribunal is bound to receive it.

I must say the applicant, who appeared in person both before the Tribunal and before this Court, ably represented himself and his submissions appropriately addressed the points of law raised by his application for review.  However, I can discern no reviewable error in the reasoning of the Tribunal and the application will be dismissed with costs.

I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein

Associate:

Dated:            15 May 1998

Counsel for the Applicant:	Applicant in person
Counsel for the Respondent:	M Kennedy
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 February 1998
Date of Judgment:	19 May 1998