SZBBK v Minister for Immigration
[2004] FMCA 936
•3 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBBK v MINISTER FOR IMMIGRATION | [2004] FMCA 936 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution on several bases in Kenya – procedural fairness – whether the RRT decision based upon country information that was not disclosed to the applicant – the determinative information was disclosed – no reviewable error found – application dismissed. |
Migration Act 1958 (Cth), ss.422B, 424A
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Kioa v West (1985) 151 CLR 550
Minister for Immigration v NAMW [2004] FCAFC 264
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
Paul v Minister for Immigration (2001) 113 FCR 296
| Applicant: | SZBBK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1482 of 2003 |
| Delivered on: | 3 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 3 December 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Partners in Law |
| Counsel for the Respondent: | Ms R Pepper |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1482 of 2003
| SZBBK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 10 June 2003 and handed down on 8 July 2003, the RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Kenya and made claims of persecution on several bases. Relevant background information is set out in paragraphs 1-10 of written submission prepared on behalf of the applicant by Mr Karp and paragraphs 1-9 of written submissions prepared by Ms Pepper, for the Minister:
The applicant is a Kenyan national whose ethnic group is Kikuyu. She arrived in Australia in November 2000 having left Kenya in August 2000 (court book, page 80).
On 2 January 2001, she lodged an application for a protections visa (class XA) with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Migration Act (court book, pages 2-35).
The applicant claims persecution on the ground of political activity. In brief, the applicant claims that because of her marriage to a Councillor and because of her outspoken views on, and her public political agitation in relation to, in the 1950s, female genital mutilation, she became a target with the Kenyan authorities and members of a certain sect (the Mungiki). This is an offshoot of the Mau Mau sect that brought terror to Kenya in the late 1950s and early 1960s.
That application was rejected on 20 May 2002 (court book, pages 47-56). The application to the RRT was lodged on 18 June 2002 (court book, page 57), some two weeks before the date of commencement of s.422B of the Migration Act 1958 (Cth) (“the Migration Act”).
Prior to the RRT hearing [the applicant] sent a letter to the RRT in which she wrote about the death of her sister in law who had been abducted, assaulted and had died after being mistaken for the applicant (court book, pages 65-68). The perpetrators were alleged to be the Mungiki. This letter was accompanied by newspaper clippings about the government’s attempts to break the Mungiki (court book, pages 70-71).
The RRT hearing
The hearing was held on 8 May 2003. A transcript is in evidence.
The hearing focused on the abduction and death of [the applicant’s] sister in law and the danger to her from Mungiki. The evidence was that after being abducted her sister in law was shaved - “They shaved all hairy parts of her, in fact, before they realised it wasn’t me (transcript p.9 A 63).” Her clothes had been thrown in the river, and she caught pneumonia during a four kilometre walk to safety after being released. [The applicant] found out that the sect were involved in this incident by talking to her sister in law before she died (transcript pp 10-11). A central issue then, was whether and to what extent she faced danger from the Mungiki.
Near the beginning of the hearing the RRT member said that he may discuss country information, or indeed his own experiences in Kenya with her (transcript p. 3. Q. 8). At page 13 the RRT member put to her that seven members of the sect were killed, four shot and three lynched. [The applicant’s] response was that this doesn’t stop them doing what they do. Similarly, at page 15 of the transcript (Q113 & 114), the RRT suggested to the applicant that the government is very interested in fighting the Mungiki, and [the applicant] responded to the effect that their strength has not diminished.
Also at p. 30 of the transcript there was a statement (at Q222) that the police were cracking down on members of the sect, and at pp. 31-2 the member disclosed that 700 members had surrendered pursuant to an amnesty and that the government thought that they had virtually eliminated the group (see also p. 40). This was in fact the only information of which the RRT disclosed the source and the date (transcript p. 32 Q 228).
The RRT decision
The RRT essentially found that while the applicant had encountered difficulties in the past because of the political activity she had engaged in, these events had taken place too long ago to give rise to a well founded fear of persecution arising from her political activities or her husband’s position on Council (court book, page 93).
Further, because of recent elections the Kenyan government, and therefore the political landscape in Kenya, had changed dramatically since the applicant had departed the country in 2000 (court book, page 94).
The RRT also noted the applicant’s “casual approach towards her claim to need protection”, that is, travelling to New Zealand after her arrival in Australia and not applying for a protection visa until some time after her arrival in Australia. Thus the RRT was of the view that the applicant’s delay in making an application for a visa was an indication of the fact that her fear of persecution was not significant (court book, page 94).
Finally, the RRT noted that, on the basis of material that the applicant submitted to the RRT, the authorities were prepared to provide protection to women at risk of circumcision (court book, page 94). The Tribunal also noted that the authorities were active against the Mungiki sect and that many followers had surrendered following an amnesty (court book, pages 84 and 95).
After dismissing a number of claims (at court book, pages 93-4), the RRT member turned to the issue of the current danger from the Mungiki sect. He stated:
I do not accept that the applicant is at risk from the Mungiki sect. I note the government is active against the Mungiki sect. More than 700 Mungiki followers have surrendered following a state amnesty the country information indicates that the Mungiki activities have been largely suppressed. The government is actively encouraging members to reintegrate with the rest of the society in a situation where the scenario has changed. The Interior Security Minister ordered a police crackdown on the sect and there are several reports of arrests and Court proceedings. On the basis of the government’s record referred to above I am not satisfied that that the applicant is at risk from the Mungiki sect or that the new Kenyan government is not prepared to protect her from harm.
These conclusions were based on country information accessed by the Tribunal at RD 84-93. Five documents within those pages originated after the date of the hearing, and the information therein was obviously not disclosed to [the applicant]. These documents are:
a)“Ex-MP to stand trial”, Daily Nation May 21, 2003.
b)“16 Alleged ‘Mungiki’ members arrested”, Daily Nation May 20, 2003.
c)“Future Truth Commission Could Face Controversy Over Moi,” UN Integrated Regional Information Networks, 16 May 2003.
d)“Hempstone Set to Visit Kenya”, The East African Standard (Nairobi) 16 May 2003,
e)Ex-Detainee tells of torture Ordeal, The Nation (Nairobi) 16 May 2003.
Other documents originated before the hearing, but neither they nor significant parts of their content were not disclosed to the applicant. These included:
a)“Govt has wiped out Mungiki,” East African Standard 30 April 2003.
b)“Kenyan sect leader freed,” BBC 17 April 2003.
c)Profile: Kenya’s secretive Mungiki sect”, BBC News 11 February 2003.
d)“Five killed in Mungiki mayhem,” East African Standard 7 February 2003.
e)“700 ‘Mungiki’ sect members surrender,” Daily Nation 12 March 2003.
The applicant proceeds today on the basis of a further amended application filed in court by leave this afternoon. In that application the applicant contends that the RRT committed jurisdictional error of law in that it failed to adequately disclose the existence of or contents of documents which it utilised in making its decision. Those documents are identified in a series of paragraphs of the further amended application. The reference to those documents is a reference to a series of documents under the heading of Country Information appearing in the court book from pages 84-93. All of those documents were referred to by the presiding member in his reasons.
In support of her application, the applicant relies upon her own affidavit made on 28 July 2004 and filed the following day. In that affidavit the applicant deposes that neither during the hearing nor at any time prior to her receipt of the RRT’s decision in her case was she aware of the documents referred to in the further amended application and the RRT decision. She deposes that had she been informed of the existence of those documents, she would have responded that the government cannot be relied upon to suppress the Mungiki sect. She would have contacted relatives in Kenya to find out whether those arrested had been convicted because Kenyan newspapers carry false stories to make the government look good.
The applicant further deposes that she would have pointed out that the article numbered “D” in the affidavit which is a BBC report headed “Kenyan Sect Leader Freed” shows that a Mungiki leader was released after a hearing. The applicant deposes that she would also have noted the claim of the Mungiki in article numbered “F”, headed “Profile Kenya's Secretive Mungiki Sect”, a further BBC news report, that the organisation has 2 million members and that officials of the new government are members of the sect, as well as reports that it is well armed, it is very hard to suppress such a sect. Finally, the applicant deposes that she would also have referred to articles “B” and “C” identified in her affidavit, being articles headed “16 Alleged Mungiki Members Arrested” and “Government Has Wiped Out Mungiki”. The applicant deposes that she would have submitted to the RRT that the government's claim to have wiped out the Mungiki is contradicted by the fact that the meetings of the sect were being held and that people were being arrested weeks later. The applicant further relies upon an affidavit by her solicitor, Marcelo Urquijo, made on 29 July 2004 and filed on the same day. That affidavit annexes a transcript of the hearing before the RRT conducted on 8 May 2003.
Apart from those affidavits I accepted into evidence the court book. The applicant was not required for cross-examination on her affidavit and her evidence was to that extent, uncontested. Mr Karp deals in his written submissions with the general principles relating to procedural fairness in the context of the obligation that may arise to disclose information to an applicant. I agree with and adopt for the purposes of this judgment, paragraphs 11 and 12 of his written submissions:
The rules of natural justice apply to this case, unaffected by s.422B (Minister for Immigration v NAMW [2004] FCAFC 264; [140]-[145]). In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 the Full Court of the Federal Court stated the principle as follows:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker.
As Brennan J noted in Kioa v West (1985) 151 CLR 550, 628, the requirements of natural justice are flexible. His Honour continued:
In this Court the flexibility of the principles of natural justice was recognized by Kitto J in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, at p 504:
"What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. And it is not a one-sided business."
The decision of Allsop J in Paul v Minister for Immigration (2001) 113 FCR 296 at 104 also relied upon by Mr Karp needs to be treated with some caution, given that His Honour was there referring to s.424A of the Migration Act, which is a statutory provision setting out fixed requirements whereas, under the general law, the requirements of the rules of procedural fairness will vary infinitely depending upon the circumstances. The question for me to decide in this case is whether the requirements of procedural fairness were breached in the particular circumstances of this case. I have no difficulty in accepting that the exercise of statutory power by the RRT attracted the requirement for procedural fairness.
The relevant part of the presiding member's reasons is that set out on page 94 and page 95 of the court book. The presiding member had earlier dealt with some claims made by the applicant about which no complaint is made. However, in the last paragraph on page 94 the presiding member identified and dealt with the applicant's claim that she may be at risk of harm in Kenya because she was crusading against the outdated traditional practice of circumcising women. The presiding member notes articles that the applicant had herself submitted to the RRT indicating that security had been beefed up following threats to people in the same circumstances. The presiding member refers to actions taken by police officers at various girls schools. He goes on:
I am not satisfied the Applicant is at risk for reason of any involvement she may have had some years ago in the campaign against genital mutilation as it is clear that the government is prepared to provide protection to persons like the Applicant or young girls who are at risk of circumcision.
However, the presiding member then goes on:
The Applicant claims that she had “been talking against female circumcision (genital mutilation) and that offended the Mungiki sect very much.
This for present purposes, is the critical claim. The presiding member continues:
The Applicant's claim to the Tribunal is more focused on the claims that her sister-in-law was abducted by two women.
The applicant claims that her sister-in-law was subsequently shaved but when her abductors realised they had made a mistake with her identity she was released. The applicant claims that her sister-in-law was abducted instead of the applicant. Her sister-in-law died from pneumonia shortly after this incident. So she was unable to give full details of the incident to police or other government officials for them to follow up.
The presiding member then continued to deal with this element of the applicant's claims. He says:
The Applicant claims this incident is related to the Mungiki sect. She claims cultists are licensed to kill by the government but I do not accept this is this case. I do not accept that the Applicant is at risk from the Mungiki sect. I note the government is active against the Mungiki sect. More than 700 Mungiki followers surrendered following a state amnesty. The country information indicates that Mungiki activities have been largely suppressed. The government is actively encouraging members to reintegrate with the rest of the society in a situation where the scenario has changed. The Interior Security Minister ordered a police crackdown on the sect and there are several reports of arrests and court proceedings. On the basis of the government's record referred to above I am not satisfied that the Applicant is at risk from the Mungiki sect or that the new Kenyan government is not prepared to protect her from harm.
It is apparent that the applicant's relevant claim was rejected for two reasons. First, the presiding member took the view on the basis of available country information that the threat presented by the Mungiki sect was subsiding due to government action against the sect. Secondly, also based upon country information, the presiding member took the view that the Kenyan government was able to provide effective State protection to the applicant. It appears that several, but not all, of the documents referred to under the heading, “Country information” influenced those conclusions by the presiding member. Documents 1 and 2 refer to some court proceedings but so do some other documents, including document 4. Document 6 refers to the size of the Mungiki sect and on page 88 of the court book there is a reference to the Interior Security Minister, Chris Murungaru, ordering a police crack down.
The critical document for the purposes of the presiding member's reasoning appears to be document 5 which is a Daily Nation report dated 12 March 2003. It is that article which contains the reference to the surrender of the more than 700 Mungiki followers. It is also that article which quotes a government minister referring to efforts to reintegrate them into the rest of society and sets out the government's view that the problem posed by the Mungiki sect was being dealt with.
The question is whether the presiding member met his obligation to disclose to the applicant the issues which were determinative of the outcome of this part of the applicant's claims. It is plain from an examination of the transcript commencing on page 13 and running through at least to page 40 that there was an extensive discussion between the presiding member and the applicant about the activities of the Mungiki sect, the threat that it posed, the efforts or lack of effort on the part of various governments to deal with it and reports in relation to the problem. There are a number of references in general terms to media or other reports.
In my view, on a reading of that transcript the applicant exercised an opportunity to put to the presiding member her lack of confidence in the efforts of successive governments and stressed to the presiding member the threat posed by the Mungiki sect and the difficulty of controlling it. The critical issue for me is whether the applicant had an opportunity to draw to the presiding member's attention issues relevant to the assessment of the weight of the various articles relied upon by the presiding member.
The documents are primarily Kenyan newspaper articles. The applicant pointed out to the presiding member that one could not believe everything one reads in newspapers (transcript, page 36). The applicant continued on this theme on page 37 of the transcript and referred in particular to a Nigerian newspaper that could not be relied upon. It was therefore an issue of concern to the applicant that some media in Kenya was unreliable apparently because it was subject to government, or other, influence.
In the circumstances, in my view, a simple reference to unidentified media reports would not have been a sufficient opportunity for the applicant to deal with those media reports. The presiding member needed to identify the source of the media reports so that the applicant could put to the presiding member relevant issues of weight.
In her affidavit the applicant deposes that at no stage was she aware of any of the documents identified in the reasons for decision of the RRT. With one exception that is corroborated by the transcript. The exception is document 5. On page 32 of the transcript the presiding members refers specifically to that document. The applicant stated her intention to have a look at it. It is not apparent whether or not she did in fact look at the article. The specific reference to that newspaper item by the presiding member is critical because it was the item which primarily led to the conclusion reached by the presiding member on page 95 of the court book. The BBC News item forming document 6 and the BBC News item forming document 4 appeared also to have had some influence but the failure on the part of the presiding member to specifically identify those items I do not regard as constituting a breach of the requirements of procedural fairness in this case because those sources were not challenged by the applicant as unreliable. On any objective view the BBC is a reliable news source.
Having identified the document which was most important to the formation of his views the presiding member did all that was necessary to discharge the obligation of disclosure applicable in this particular case. I take into account that documents 1 and 2 in the presiding member's reasons did not exist at the time of the hearing before the RRT. However, although those documents may have been of some comfort to the presiding member, to the extent that they refer to arrests, they are not, in my view, determinative.
On balance I find that there was no breach of procedural fairness in the reliance by the presiding member on country information in the reasons for the RRT decision.
I will therefore dismiss the application.
On the question of costs, the application having been dismissed Ms Pepper seeks an order for costs fixed in the sum of $5,000 on a party/party basis. Mr Karp submits that a lesser amount should be awarded in that the case was confined to a single issue and was relatively straightforward. In reply, Ms Pepper points to the preparation that was required including the analysis of the transcript. In my view, this was a case of no more than average complexity. The amount of preparation required to put together the court book was certainly no more than average. The applicant has properly confined herself to the single issue that merited a hearing. In addition, I felt myself able to deal with the matter in an ex tempore judgment because I felt that the issues were relatively clear. The transcript was an annexure to the applicant's solicitor's affidavit and to that extent the effort in producing it was a cost to the applicant, although I accept that the respondent has had to analyse it.
In all the circumstances I am satisfied that an award of costs fixed in the sum of $4,000 on a party/party basis would be adequate recompense to the Minister in this case and I will so order.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 20 December 2004
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