SXVB v Minister for Immigration
[2005] FMCA 1467
•28 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SXVB v MINISTER FOR IMMIGRATION | [2005] FMCA 1467 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – fear of persecution alleged on grounds of political opinion – person convicted of people smuggling – other person convicted on his statements – fear not convention based. |
| Migration Act 1958, ss.91R, 91S Judiciary Act 1903 |
| Plaintiff S157/2002 v Commonwealth (2002) 211 CLR 476 SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168ALR |
| Applicant: | SXVB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AND INDIGENOUS AFFAIRS |
| File Number: | ADG 40 of 2005 |
| Judgment of: | Lindsay FM |
| Hearing date: | 3 June 2005 |
| Delivered at: | Adelaide |
| Delivered on: | 28 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | In Person |
| Counsel for the Respondent: | Mr K Tredrea |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the Refugee Review Tribunal be joined as a party to these proceedings.
That the application filed on 24 December 2004 be and the same is hereby dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 40 of 2005
| SXVB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application under s.483A of the Migration Act1958 (Cth) (“the Act”).
Under s.483A, this Court has "the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. That jurisdiction in relation to matters such as the present is the jurisdiction under s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Pt VIII of the Act. As interpreted in Plaintiff S157/2002 v Commonwealth (2002) 211 CLR 476 those limitations require this Court to identify jurisdictional error in the proceedings or reasons of the Tribunal before the Court has the power to set aside the Tribunal decision and remit the matter for hearing.
The relevant decision of the Refugee Review Tribunal (“the Tribunal”) was made on 16 December 2004. That decision affirmed a decision of the Minister's delegate not to grant the applicant a protection visa. Consistent with the recent decision of the High Court in SAAP and Another v Minister for Immigration and Multicultural Affairs [2005] HCA 24, I joined the Tribunal as a party to these proceedings.
The applicant is a citizen of Tanzania. He arrived in Australia on 10 August 2004. On 23 August 2004 he applied for a protection visa. The Minister's delegate, on 28 September 2004, refused to grant the visa. He lodged his application with the Tribunal on 30 September 2004 and, as indicated above, the Tribunal affirmed the decision not to grant the applicant a protection visa on 16 December 2004
The applicant was not represented by a legal practitioner or migration agent in the proceedings before me. His claims are set out in a written statement dated 23 August 2004.
The Tribunal had before it the department's file, which included the protection visa application, records of interview held between the applicant and officers of the department upon his arrival, and with the delegate, and a record of the delegate's decision. In addition to the written statement provided to the delegate, the Tribunal also had a submission in support of the protection visa application from the applicant's adviser and a number of documents relating to the political situation in Tanzania.
In the material presented to the delegate the applicant stated that at the age of 22 years he joined the CAF party. He said that the object of that political party was to unify the island of Zanzibar with the Tanzanian state on the mainland. The CAF party was in opposition to the party then in power, which was the Chama cha Mapinduzi or CCM party. He said that in an election about five years prior to the making of his statement the CAF took people, including himself, from the mainland Tanzania to Zanzibar to vote for the CAF. He said the CAF candidates who were successful in the election were not allowed to take up their seats. He returned to mainland Tanzania, were there were demonstrations by CAF supporters.
He said that the government then started arresting people from the mainland who had voted for the CAF party in Zanzibar. A number of people whom the applicant knew were arrested or fled the country. He says he was not arrested because he did not have a permanent address.
In 2003 he travelled to Kenya. He then returned to Tanzania. He then travelled to South Africa and made his way to Cape Town and then onto the ship on which he came to Australia.
He was fearful of returning to Tanzania because he said he would be arrested and imprisoned by the CCM government.
During his interview with the delegate the applicant clarified that when he referred to the political party to which he belonged he meant the CUF (“Civic United Front”) and not the CAF.
The delegate concluded that the applicant left Tanzania because of economic difficulties. He noted that the applicant had spent significant periods of time in Tanzania since the elections approximately five years prior and had been untroubled by the government or its supporters.
In the material presented to the Tribunal the applicant claimed to have joined the CUF in 1999. He said in that year and in 2000 he was the secretary for youth for a group affiliated with the CUF. He says that in January of 2001 he and another man led a group of 60 people to Zanzibar to participate in a protest against electoral fraud in respect of the elections held in October 2000. He said that after those protests a number of people were attacked by the police and killed. He told the tribunal that elections were to take place in Tanzania in 2004 and he expected there to be a crackdown on opponents of the government, particularly those people who took part in the 2001 demonstrations. He said that if he returned to Tanzania he would be arrested and subjected to beatings and torture.
The applicant gave oral evidence before the Tribunal. In that oral evidence he stated he had no education and could not read or write in any language. He had spent much of his life living on the streets. He confirmed that he belonged to the CUF party but was unable to tell the Tribunal what those letters stood for. He could not remember when he joined that party. He said that he had lost some documents, including his card relating to his membership of that party, on the ship.
Other than telling the Tribunal that the CUF believed in helping the poor and helping oppressed youth he was not able to explain anything else about the party's political platform or policies. He referred to an incident on 26 January 2001 when the police attacked a meeting of the CUF in Tanzania. Many members of the CUF were injured and taken to gaol. It was following that incident that he travelled to Zanzibar to attend a meeting of CUF supporters. In fact the meeting was held on the island of Unguja. He says that the CUF party members were attacked at that meeting and he travelled again to mainland Tanzania.
He stayed in Tanzania for another three years before leaving for South Africa. He was asked about elections that had been held before the meetings in January 2000 that were broken up by the police, and he said that there had been elections about five years earlier.
His account to the Tribunal differing in some respects from country information available to the tribunal the applicant once, according to the tribunal, made clear that the election which had preceded the protests where the CUF supporters had been injured had been the 1996 elections.
Some time was spent by the Tribunal in its reasons describing the applicant's lack of familiarity with the Swahili word, which, it was said, encapsulated the policies of the CUF party. That word was "Utajirisho". The applicant replied that that was not the motive of the CUF party but another party called TOP, and he maintained that position in his submissions and evidence before me.
The tribunal wrote to the applicant's adviser following this hearing identifying a number of issues relating to the credibility of the applicant's account and inviting him to comment on those matters, and on 13 December 2004 the Tribunal received a further written response. That written response reiterated that the applicant was uneducated and illiterate and that this was the explanation for his not having knowledge of the policies of the CUF. The applicant acknowledged that the meetings which had been met with violence by the regime, in 2001, were protesting the conduct of elections in 2000 and not in 1996 and that the applicant had been confused when asked about that. The written submission reiterated that the applicant did not accept what the tribunal said was the preponderance of the country information available, which was that there had been a significant accommodation reached between the CUF and the ruling party.
The Tribunal had regard to a significant amount of external country information and that is summarised at pages 11 to 14 of the Tribunal's reasons (CB 184 to 187 inclusive). The significant aspect of the external country information was that it appeared to indicate that political tension in Tanzania had been reduced following an accord that had been reached between the CUF and the governing party in October 2001.
A refugee is defined by Article 1A(2) of the Refugees Convention as:
“Any person who, owing to a 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Sections 91R and 91S of the Act qualify, in some respects, that definition.
Section 91R:
“(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical harassment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(3)For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
Section 91S:
“For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person’s family:
(a)disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b) disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mention in paragraph (a) had never existed.
The application before the court does not specify any jurisdictional error. It is without particularity. It includes this assertion, however:
I wouldn't be protected by the Tanzanian government if I go back to my hometown and I will be in danger as there is no natural justice for people who are living in my hometown.
The way in which the matter has been conducted by the applicant before the delegate and before the Tribunal and before me indicates an intention to claim refugee status arising from his membership of a political party. Despite the lack of particularity in the applicant's claim the obligation of the Court remains to determine whether the applicant is entitled to protection arising from his refugee status. This obligation was described by the High Court in NABE v MIMIA [2004] FCAFC 263 at [56] as follows:
“The observations cited reflect the general principle that the first task of the tribunal is to determine whether the applicant's claims are claims of a well-founded fear of persecution for one of the reasons set out in article 1A(2) of the Refugees Convention. Those are questions of characterisation which involve, in part, questions of law.
The factual questions that follow are, as in Dranichnikov, whether the applicant has a fear of persecution, whether it is well founded and if so whether the apprehended persecution is for a convention reason. Those logical steps emerge as necessary elements of the tribunal's review function by reference to the nature of the decision it is called on to review. The way in which it discharges that function flows from the powers and procedures prescribed for the tribunal in the conduct of the reviews and the use of the word ‘review’ ”.
That case also includes detailed discussion of the various Federal Court authorities which have been suggestive of the argument that the Tribunal is never required to consider a claim not expressly raised before it. (see pars 59 to 63 of that judgment.) Their conclusion in relation to such matters is encapsulated in par 63, where the Court says:
“It is plain enough, in the light of Dranichnikov, that a failure by the tribunal to deal with a claim raised by the evidence and the contentions before it, which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the act and thereby a jurisdictional error.
It follows that if the tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the tribunal. Every case must be considered according to its own circumstances”.
The Tribunal's decision to affirm the decision of the delegate in refusing the application for the protection visa is set out at pages 15 and 16 of the Tribunal's decision (CB p 188 to p 189).
“In these circumstances, I find that any involvement the applicant had with CUF was minor and peripheral. I am prepared to accept that he was a member of the CUF, voted for them, and attended meetings, including one on Zanzibar in January 2001. I am not satisfied, on the credible evidence before, that the applicant was wanted by the authorities following the January 2001 demonstration, and that he was only able to avoid arrest because he was in hiding. He gave clear evidence that he lived on the streets even before the events of January 2001, and in view of his low profile I find it not to be plausible that the authorities would pursue him for many years on the mainland in relation to attendance at one demonstration on Zanzibar. I do not accept that the applicant was wanted by the police or other authorities prior to his departure from Tanzania.
Nonetheless, it is clear from all of the evidence before me that, certainly prior to the 2001 Accord between the CCM and the CUF, serious human rights abuses were carried out in Zanzibar and also in mainland Tanzania, against members and supporters of the CUF. I accept that, up until the Accord, active members of the CUF were at real risk of suffering persecution, including harassment, arbitrary arrest and detention accompanied by beatings and torture, particularly on Zanzibar. However, current information about the situation in Zanzibar and Tanzania as a whole, indicates that the political repression which faced CUF supporters several years ago has ceased. All the sources cited above, including the USDOS and Amnesty International, indicate that this is the case. I am satisfied, based on the evidence before me, that the degree to which ordinary CUF members face harassment and human rights abuses has diminished substantially. I find that, at the present time, the prospect of any ordinary member of the CUF facing significant human rights abuses amounting to persecution is insubstantial, and does not give rise to a well founded fear of persecution. While I accept that tensions may remain at some level, there is nothing in the evidence before me to indicate that a person in the position of the applicant, whose profile as a CUF member I find is insignificant, and who would return to mainland Tanzania, where CUF members have always faced less difficulties than in Zanzibar, would face a real chance of arrest, detention, or other persecution, in connection with low key activities carried out almost four years ago.
In these circumstances, I am satisfied that even if he were a member of CUF, the applicant could safely return to Tanzania without facing arrest, detention or other forms of harassment amounting to persecution on account of his past activities; and that if he wished he could participate in political activity in the reasonably foreseeable future without harm.”
Having looked carefully at those conclusions it seems to me that they were reasonably open to the tribunal on the basis of the material before it. Findings of credibility are a function of the Tribunal. It is not for me to review the merits of the tribunal's decision in any event. (See MIEA v Wu Shan Liang (1996) 185 CLR 259 at [272] and Re Minister for Immigration and Multicultural Affairs, ex parte Durairajasingham (2000) 168 ALR 407 at [67]).
The country information analysed by the Tribunal was reasonably extensive and pointed to the accord between the relevant political entities described by the Tribunal. The view the Tribunal took of the information available to it, as to the applicant's membership of the political party nominated by him and his activities on its behalf, was also clearly authorised, in my view, on the information available to it.
No jurisdictional error is apparent in the Tribunal's decision.
Accordingly, the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate:
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