SXWB v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 440

FEDERAL COURT OF AUSTRALIA

SXWB v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 440

SXWB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SAD.3 of 2005

MANSFIELD J
20 APRIL 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD.3 OF 2005

BETWEEN:	SXWB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	20 APRIL 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed. 

2.The applicant pay to the respondent her costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD.3 OF 2005

BETWEEN:	SXWB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	20 APRIL 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application under s 39B of the Judiciary Act 1903 (Cth) seeking to quash a decision of the Refugee Review Tribunal (the Tribunal) made on 24 December 2004. It is contended that the decision of the Tribunal was attended with jurisdictional error, so that it should be set aside and the matter remitted to the Tribunal differently constituted for re-hearing: cf Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24; [2003] HCA 2.

2. The applicant arrived in Australia without travel documentation on 9 August 2004.  Soon after, he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). To be eligible for the grant of that visa, the delegate of the respondent (and on review, the Tribunal) had to be satisfied that he was a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention). For present purposes, that involved the decision-maker being satisfied that he is a refugee as defined by Art 1A(2) of the Convention, namely that he is 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 CLAIMS

3. The applicant claimed to have a well-founded fear of persecution primarily by reason of his perceived political opinion.  He claimed to be a citizen of Zimbabwe, of the Tswana ethnic group, and born at Mesengwane, Bullawayo.  He said he was born in 1983, and after completing about 10 years of schooling, he had either been unemployed or had worked as a fisherman.  He claimed to have left Zimbabwe in December 2001, fearing for his safety, and had then lived in South Africa until August 2004.  He then came to Australia. 

4. His fear of persecution was said to arise from his refusal to participate in a gang which planned to force white farmers off their land by violence.  He said he had been threatened to be killed by that gang because he would not participate in it, and that it was a gang particularly made up of residents of Mesengwane.  At the hearing before the Tribunal the applicant described the gang as made up of members of the opposition Movement for Democratic Changes (the MDC party), and that he was a member of that party.  Independent information indicated that it was Zanu PF, the party in government, which had the policy of driving white farmers off agricultural land, and that the MDC party was opposed to that policy.  The Tribunal put that information to the applicant.  He then said that there was a secret inner core of the MDC Party which, unknown to the MDC Party generally, was participating in driving white farmers off agricultural land.  After the hearing before the Tribunal, the applicant refined or changed his position to say that the Zanu PF party was pursuing him to kill him because he would not provide information concerning the membership and activities of the MDC party.

   THE TRIBUNAL’S REASONS

5. The delegate of the respondent rejected the application for a protection visa on 28 September 2004.  That decision was affirmed by the Tribunal on 24 December 2004.  The Tribunal was not satisfied that the applicant was a refugee as he claimed, primarily because it was not satisfied that he was a citizen of Zimbabwe at all.  It questioned him at some length about his knowledge of matters in Zimbabwe.  It said:

   ‘… His overwhelming lack of knowledge of any of the day to day details of the country leads the Tribunal to the conclusion he was neither born, nor raised in that country.  His choice to converse in a language other than one of the official languages in the country of his claimed birth, in which he would have been educated for over some 10 years, also detracts from the credibility of his claim that he is a citizen of Zimbabwe.  The Tribunal is therefore not satisfied the applicant is a citizen of Zimbabwe, or that he had lived in Zimbabwe prior to boarding a ship in South Africa and travelling to Australia.’

6. The Tribunal then considered the possibility that it may have been wrong about its determination of the applicant’s citizenship.  In that event, it decided that the applicant had never been a member of the MDC or any group associated with that party, or the Zanu PF or any group associated with that party.  It would not have been satisfied that the applicant faced any real chance of harm from persons associated with either of those groups, so that in any event he did not have a well-founded fear of harm by reason of any involvement with those political parties.  It noted that the thrust of his claims to fear persecution had changed over time and that his evidence was variable and inconsistent.  It explained why it reached that view.  It regarded his assertions to membership of the MDC, or a secret group within the MDC, which acted against white farmers to lack credibility, and to be inconsistent with independent country information relating to the MDC party in Zimbabwe.  The MDC party is the major opposition party in Zimbabwe and was opposed to the Mugabe government land seizure program from white farmers.  The Tribunal further noted that it was only after the Tribunal, during the hearing, pointing out that the sort of conduct which the applicant attributed to the MDC gangs would be more consistent with actions attributed to the pro-government Zanu PF groups and its youth wings, that the applicant asserted that he feared people from the Zanu PF party who wanted to kill him because he would not tell them about what the MDC was doing. 

7. The applicant’s claim for a protection visa failed before the Tribunal simply because the Tribunal did not accept what he reported to them from time to time.

   CONSIDERATION

8. The applicant appeared in person at the hearing.  He chose to appear by video link from the Baxter Immigration Reception and Detention Centre rather than in person.  His application first made to the Court in writing did not identify clearly any grounds of jurisdictional error, but simply asserted his fear that he would be killed if he returned to Zimbabwe, as his name was known to the leader of a group with which he disagreed.  His oral submissions did not clarify the position at all.  In large measure he simply asserted that the decision of the Tribunal was unfair as he had a problem if he were to return to Zimbabwe.  It was an attempt to re-ventilate the factual issues he raised before the Tribunal.  No jurisdictional error on the part of the Tribunal was demonstrated.  Indeed, the applicant’s contentions failed even to suggest any legal error by the Tribunal in how it made its factual determination.

9. The only other matter raised by the applicant in his oral submissions concerned the quality of communication at his first interview with officers of the respondent upon his arrival in Australia.  That was an interview which took place very soon after he arrived in Australia, and (he said) without the assistance of an interpreter.  He said he did not know how to answer questions well then, and so did not get a chance to explain why he left his country.

10. That matter does not, in my view, demonstrate jurisdictional error on the part of the Tribunal.

11. It is plain from the Tribunal’s reasons that the Tribunal was unaware of any such interview.  The application for a protection visa was made by document dated 23 August 2004, accompanied by a typed statement of the applicant.  It was completed with the assistance of a migration agent and, as the applicant acknowledged, with the assistance of an interpreter who interpreted to him between English and Swahili all that was in the documents which he then submitted.  He did not suggest that that document did not give him the opportunity to put forward what he wished to present as to why he was a Zimbabwean, and why he had left Zimbabwe.  The Tribunal’s reasons do not record as part of the information before it any record of interview in English prior to that occasion.  As the Tribunal commonly does, it recited the evidence and the claims before it.  It started with the claims made in the protection visa application.  There is no basis for suspecting that the Tribunal was aware of or took into account that asserted initial interview upon arrival in Australia.  The quality of the communication in respect of any such interview is of no significance.  In any event, there is no basis for thinking that the applicant did not otherwise by his application for a protection visa, and subsequently by his application to the Tribunal, by the written submissions submitted to the Tribunal on 23 August, 10 November, 24 November and 25 November 2004, and by his evidence at the hearing before the Tribunal on 11 November 2004 have an adequate opportunity to put to the Tribunal why he feared returning to Zimbabwe and why his country of nationality was Zimbabwe.

12. Apart from that issue, it is apparent that the Tribunal simply made its determination upon its assessment of the applicant’s credibility as a relator of factual information.  It is not demonstrated that the Tribunal fell into jurisdictional error in its assessment of the reliability or otherwise of what he told it.  It has given comprehensive and detailed reasons as to why it did not accept that he was a citizen of Zimbabwe as he claimed.  It has given comprehensive and detailed reasons as to why, even if he were a citizen of Zimbabwe, it did not accept that he has or would have a well-founded fear of persecution if he were to return to Zimbabwe.  Those findings of fact, in my view, were made without jurisdictional error on its part. 

13. In my view the application must fail.  It is dismissed.  The applicant should pay to the respondent her costs of the application.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:            15 April 2005

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 April 2005
Date of Judgment:	20 April 2005