SXSB v Minister for Immigration
[2006] FMCA 655
•16 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SXSB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 655 |
| MIGRATION − Review of RRT decision − where refugee status claimed on grounds of imputed political opinion − where Tribunal did not find parts of applicant’s evidence to be credible − whether Tribunal failed to make finding of fact − whether applicant capable of relocation − whether Tribunal fell into jurisdictional error by suggesting applicant could relocate − whether Tribunal dealt with all the applicant’s claims. |
| Federal Magistrates Court Rules 2001 |
| Randhawa v Minister for Immigration (1994) 124 ALR 265 NAIZ v Minister for Immigration [2005] FCAFC 37 Minister for Immigration v Wu Shan Liang (1996) 185 CLR |
| Applicant: | SXSB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | ADG13 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 2 May 2006 in Sydney via Videolink from Adelaide |
| Date of last submission: | 2 May 2006 |
| Delivered at: | Adelaide |
| Delivered on: | 16 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Ower |
| Solicitors for the Applicant: | McDonald Steed McGrath |
| Counsel for the Respondent: | Mr K Tredrea |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG13 of 2006
| SXSB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a Tanzanian citizen. He stowed away on a vessel that arrived in the Port of Gladstone in Queensland on 10 August 2004. Upon removal from the vessel the applicant made claims which the Department of Immigration believed to be connected with an application for the grant of a protection (Class XA) visa. On 28 September 2004 a delegate of the Minister refused to grant a protection visa. On 30 September 2004 the applicant applied for review of that decision. On 7 December 2004 the Refugee Review Tribunal differently constituted affirmed the delegate’s decision. The Tribunal decision was set aside by the Federal Court on 5 July 2005 and the matter was remitted to the Tribunal to be heard and determined according to law. The new Tribunal conducted a hearing with the applicant from the detention centre at Port Augusta on 28 September 2005. The applicant was represented by a migration agent. On 11 November 2005 the second Tribunal affirmed the decision of the delegate not to grant a protection visa and handed that decision down by letter on 14 November 2005.
The applicant’s claims are contained in a statement found at
[CB13-14] and in a subsequent statutory declaration found at
[CB 39-41]. The common elements of these statements are that the applicant was a member of the Nyamwezi clan as was his father and grandfather before him. His grandfather had purchased a piece of land outside Dar es Salaam which he had farmed. On his grandfather’s death his father took over the land but became an absentee landlord leaving a manager on the farm. There had been no trouble with their neighbours until in 1992 the applicant’s father decided to join the opposition political group CUV. In 1995 the applicant joined CUV. The applicant’s father put up CUV flags around the coconut trees on the land. After this the neighbours began to cause trouble for the father and claimed approximately eight of his thirteen acres. The father decided that he wanted the matter resolved but received no assistance from the authorities. The neighbours were members of the Mwadila clan of the Wasukuma Tribe. This Tribe supports the CCM. In 1998 the neighbours came to the farm and beat the applicant’s father. The father complained to the police but they took no notice of his complaint and instead arrested him. The father eventually died in police custody. The applicant believed that his father had been beaten to death by the police at the behest of the neighbours and their political supporters.
After his father’s death the applicant inherited the land. He did not live on it either. The applicant went to work in Dar es Salaam and the surrounding area. He claimed that he had gone to the farm to look after it but had been attacked by the Wasukuma. When he went to Mbagala he had to keep moving around and received some protection from a friend in the Mwadila clan who, he said, gave him early warning of possible attacks.
Eventually the applicant fled into Mozambique and thereafter into South Africa. The applicant believed he was targeted by the Wasukuma because of his membership of the CUF and he believes that the police would not provide him with adequate state protection as they support the CCM. At [17] of his statutory declaration at [CB 41] the applicant says:
“I could possibly move to another part of Tanzania and live peacefully without getting involved with politics and without following my strong desires to see change in my country. I personally would find it extremely to deny that desire I have to see change and to leave behind my political beliefs. Should I move anywhere in Tanzania and continue to advocate for the CUF the problems would follow me wherever I went.”
The Tribunal discussed various matters with the applicant and in its findings and reasons considered first the major claim made concerning the attacks on the applicant’s father and the applicant and his brother by the neighbours about which it said:
“The applicant was so frightened that he left the house and did not live there again. Nor did he ever return to the farm. The applicant remained for three years in Dar es Salaam but based in another suburb. From time to time he heard reports that the tribe to which the neighbours belonged was looking for him. He then left the country.
The account above is straight forward. It may raise concerns about the Tanzanian treatment of prisoners or the standards of hospital care there [in relation to the death of his uncle] but in my view it does not raise any issue of convention related harm involving the applicant.”
The Tribunal then went on to consider what it described as “The addition of material about political party affiliation”. It noted that the claim that the actions of the neighbours were politically inspired had only been made in a comprehensive manner at the second Tribunal hearing. The Tribunal noted that the applicant alleged there was a political motive behind the Sukuma neighbours acting in the manner that they did:
“The applicant at my hearing (but on no previous occasion) pinpointed the antagonism of the neighbours towards the applicant’s father as beginning in 1992 after the latter displayed CUF flags on his property. The applicant was unable to explain why political antagonism was played out as a dispute over the boundary between the property rather than a straightforward clash about politics [CB 80]”.
The Tribunal utilising independent country information did not accept that tribal antagonism existed to the extent suggested by the applicant:
“Specifically, I reject that the Sukuma were responsible for the administration of poison to the applicant’s uncle in hospital. I reject the claim that the Sukuma are concerned with the land dispute between the applicant and his neighbour and that the Sukuma targeted the applicant in Tanzania. I reject the claim that the Sukuma will target the applicant if he returns to Tanzania. In short I reject the claim that the Sukuma tribe as a whole have any interest adverse or otherwise in the applicant as an individual or as a member of the Nyamwezi tribe or as a member of the CUF. The fact that the applicant may have encountered, or may encounter in the future problems with individuals who happen to belong to the Sukuma is a completely separate matter.”
The applicant filed in court an amended application which narrowed down the issues between the parties. The new ground was as follows:
“1.The Tribunal failed to exercise its jurisdiction, in that it failed to consider a contention that the applicant feared persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criteria for a Protection Visa.
Particulars
1.1The Applicant claimed to fear persecution from the neighbours to the farm formerly owned by his father. He alleged that they were members of the Sukuma Tribe.
1.2The Tribunal, in purported consideration of this claim, made a finding that the Sukuma Tribe as a whole were not motivated to persecute or otherwise harm members of the Applicant’s Tribe.
1.3In the circumstances, the Tribunal failed to make proper findings in relation to the claim that the neighbours were motivated to harm him for a Convention reason.”
Although the ground appears narrow and is effectively a claim that the Tribunal failed to make a finding of fact as to whether the applicant suffered persecution for a particular reason it raises an additional point concerning the Tribunal’s apparent findings in relation to relocation. If the comments made by the Tribunal in the second and third paragraphs at [CB 82] constitute a finding that the applicant is capable of relocation the applicant accepts (for the purposes of this court only) that such a finding would neutralise the finding of jurisdictional error in relation to the matter pleaded in the application. In order to negate such an outcome the applicant also argues that the relocation finding does not comply with the requirements set out by the Full Bench of the Federal Court in Randhawa v Minister for Immigration (1994) 124 ALR 265.
The applicant submits that his evidence was that he suffered persecution at the hands of a small group of politically motivated members of the Sukuma tribe who were his neighbours. He argues that when the Tribunal stated that it “rejected the claim that the Sukuma tribe, as a whole, have any interest – adverse or otherwise in the applicant as an individual or as a member of the Nyamwezi tribe or as a member of the CUF” it has either asked itself the wrong question (because that was not the claim that was made) or it failed to ask itself the proper question, which was whether the applicant suffered persecution from the neighbours for a convention reason (his political opinion). If the Tribunal had asked itself that question it would have been obliged to continue by asking itself whether or not the applicant had satisfied it that the applicant was “unwilling to seek diplomatic or consular protection in Australia from his country of nationality because that would result in him being returned to a place where he would face persecution for a convention reason and could not reasonably be expected to live.”. If the answer was positive then he would be entitled to a protection visa NAIZ v Minister for Immigration [2005] FCAFC 37 per Branson J at [11].
It is trite law that the Tribunal’s decision has to be read “fairly and as a whole and not with an eye too keenly attuned to error”; Minister for Immigration v Wu Shan Liang (1996) 185 CLR. There is no suggestion in the applicant’s written evidence or statements to the Tribunal that he believes that the people who would persecute him if he returned to Tanzania are the same neighbours in any situation other than his return to the farm. His claims of persecution upon return are from members of the same tribe and political affiliation as the neighbours and are based upon his wish to be an articulate supporter of the CUF. It seems to me that the Tribunal did deal with both of these matters. It came to a conclusion that the dispute with the neighbours did not have a convention related nexus. That is a question of fact. Another Tribunal may have been more accepting of the applicant’s evidence that it was only his father’s support for the CUF that brought him and his neighbours into dispute. But this Tribunal did not. The Tribunal is the trier of fact and any attempt to get the court to change the finding in relation to the neighbour’s actions would be seeking impermissible merits review.
The Tribunal then went on to consider what would happen to the applicant if he returned to Tanzania as a voluble and articulate CUF supporter. Relying on independent country information it concluded that he would not be subject to persecution. It was the applicant who had suggested that the persecution would come from the Sukuma and therefore the Tribunal feel into no error, let alone a jurisdictional error, in stating that it rejected the claim that the Sukuma tribe as a whole had any interest adverse or otherwise in the applicant as an individual or as a member of his own tribe or as a member of the CUF. This statement can only have been made in response to the claim of a general fear of persecution that was articulated in paragraph 17 of the statutory declaration on [CB 41] that I have previously extracted in [4].
Because of the finding which I have made above it is not strictly necessary for me to deal with the question of relocation. The applicant contents that the Tribunal did not apply the test set out in Randhawa when considering the question of relocation. It is correct to say that the Tribunal did not refer directly to that case or to any other subsequent case in which Randhawa had been considered such as NAIZ supra. But that does not mean that it did not consider those matters which in Randhawa were felt were required to be considered. In that case Black CJ said at [442-443]:
“In the present case the delegate correctly asked whether the appellant’s fear was well founded in relation to his country of nationality not simply the region in which he lived. Given the humanitarian aims of the convention this question was not to be approached in a narrow way and in her further analysis the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so. … In the context of refugee law the practical realities facing a person who claims to be a refugee was carefully considered. … If it is not reasonable in the circumstances to expect a person who has a well founded fear of persecution in relation to the part of the country from which he or she has fled to relocate to another part of the country of nationality it may be said that in the relevant sense the person’s fear of persecution in relation to that country as a whole is well founded.”
The Tribunal’s views on relocation are expressed as follows:
“The applicant lived in Dar es Salaam for three years after the death of his father and his own hostile encounter with his neighbour. He worked as a house painter in different locations. He attended CUF rallies in public places. No harm befell him. I reject his claim that he was warned by a friend who was married to a woman from the Mwadila clan as to when attacks on the Applicant were going to occur. I have already rejected the notion of a clan-based or tribe-based vendetta against the Applicant as far-fetched.
If the Applicant does not wish to return to Dar-es-Salaam, he can settle elsewhere in Tanzania. He has a skill (house painting), he speaks the national language, and he has shown himself to be resourceful and capable of going to new places (his departure route and consequent stowing away). I note that the Applicant himself acknowledged in his last statutory declaration (at para. 17) that he could settle down elsewhere in Tanzania but that he would not be able to express himself politically as a member of CUF. I reject this claim, having found that membership of CUF will not attract adverse attention from the authorities (with the possible exception for CUF activists living in Zanzibar and Pemba). The Applicant has not claimed, nor does the evidence suggest, that he has even been questioned, detained or otherwise noticed by the authorities for reason of his political opinions. The only thing he noted was the occasional break-up of opposition rallies by the police, although on no occasion was he personally noted or harmed.”
I think it is difficult for the applicant to argue that relocation would be unreasonable when he accepts himself that he could relocate if it was not for his political opinion. The Tribunal having found as a fact that his political opinion would not cause him to be persecuted did not, to my mind, fall into jurisdictional error by suggesting that he could relocate. It seems to me that the applicant in making his arguments to the court put to one side a number of important conclusions of the Tribunal. These include the fact that the problems with the neighbours were not convention related and that members of CUF were not at risk of serious harm simply for reason of CUF affiliation on the mainland of Tanzania [CB 81]. The Tribunal also found that the applicant had not submitted any independent evidence indicating that there was persecution (or even discrimination) on the grounds of tribal identity in Tanzania [CB 81]. It is against this background that the Tribunal looks to the question of relocation. There is no requirement for the Tribunal to look at the question of relocation on the basis that all the allegations made by the applicant are true if it is not found that they are true. In this case the Tribunal has rejected the applicant’s contentions and if there is any indication of hesitancy in its findings on relocation it would appear to have arisen because the Tribunal could not see any need for the applicant to relocate outside of Dar es Salaam and had noted that the applicant had in any event abandoned his land.
In the light of the above I am not able to say that the Tribunal fell into jurisdictional error in the manner in which it reached its conclusions in this case. I dismiss the application and I order that the applicant pay the respondent’s costs assessed in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
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