SZCPP v Minister for Immigration - [2006] FMCA 422

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCPP & ANOR v MINISTER FOR IMMIGRATION

[2006] FMCA 422

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal committed jurisdictional error in making findings – s.91R Migration Act 1958 – serious mental harm – whether a number of harmful acts could amount to serious harm – whether lack of probative evidence.

Migration Act 1958 (Cth), s.91R

Craig v South Australia (1995) 184 CLR 163
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27

Applicant:

SZCPP & ANOR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File number:

SYG254 of 2004

Judgment of:

Barnes FM

Hearing date:

15 March 2006

Delivered at:

Sydney

Delivered on:

13 April 2006

REPRESENTATION

Counsel for the Applicant:

Mr B Young

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms S Mason

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG254 of 2004

SZCPP & ANOR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 13 January 2004 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas. The applicants are father and daughter who are citizens of Kenya. They arrived in Australia in August 2002.

In September 2002 they applied for protection visas. Only the applicant father made substantive claims. The daughter’s claims turned on her membership of her father’s family. For convenience, further references to the applicant are references to the first applicant.
In a statement attached to the protection visa application, the applicant claimed to fear persecution because of his membership of and activities in an organisation called The Friends of Domestic Refugees Society (FDRS) which aimed to raise funds to assist victims of 1990s tribal clashes which the applicant claimed had been instituted by the then government. The applicant is a Kikuyu and claimed that Kikuyus were seriously disadvantaged and mistreated during these tribal wars. One of the aims of the FDRS was to sue the government for compensation and resettlement of these victims. The applicant claimed that the organisation was refused official registration without reasons being given. FDRS meetings were held in his office. He claimed that two women lawyers working with FDRS started recruiting witnesses in preparation for the proposed legal action. Their work was impeded by local administration bureaucrats. He claimed that he and members of the society were targeted by the authorities. The two women lawyers and one other person were killed in the space of a month in April 2002. Two of the people were killed by the police who claimed that the victims were common criminals. The applicant also attributed the third death to the police.
The applicant also claimed that he received threatening phone calls warning him to stop the FDRS work, that he believed his car was followed in the evenings so he started to use public transport, that his office was burgled and documents destroyed or stolen in March 2002 and again in early June 2002 and that the police had refused to record the first break-in. He believed the burglary was the work of the police.
He claimed that on the night of the second burglary six police officers from the Criminal Investigation Department (the CID) went to his house looking for him. He was not at home and when he rang his wife she used a pre-arranged code to warn him that the police were there. The applicant claimed that the police did not harm his wife, but told her they were only interested in him and promised her that they were going to get him. He then decided to leave the country, accompanied by his daughter for whom they felt it was safer in Australia.
The applicant claimed that in mid-July 2002 another FDRS sympathiser was attacked and also that two of his cars were burned. The applicant and his daughter left Kenya through the international airport “with help from some friends” on 12 August 2002.
The applicant also claimed that he was chairperson of a group called ‘Friends of Kirigiti Approved Society’ which sought to educate girls confined at a rehabilitation centre and that the government authorities denied the group registration thus limiting its ability to attract donors. The applicant claimed that both of the organisations in which he was involved were officially non-existent because of their lack of registration, so that their activities may be deemed illegal.
Finally the applicant claimed to be a regular contributor to a leading newspaper column called the ‘Cutting Edge Column’ and that in this way his political views would have come to the attention of the government.
On these bases the applicant claimed to fear returning to Kenya, given that a number of his colleagues involved in the FDRS had been killed and that other opponents of the government had been gaoled or sacked. He provided newspaper clippings relating to the deaths of the three people he had referred to, information about the Friends of Kirigiti Approved Society and a statement from two Kenyan pastors in Nairobi supporting his claims about activities in the FDRS and claiming that they had had to bail people out from local police stations when detained because of activities relating to FDRS. It was also claimed that the applicant had served a short stint in police cells.
The Tribunal accepted the applicant’s claims that he and his colleagues had encountered a number of difficulties with the authorities during 2002 because of their involvement in a group agitating on behalf of Kikuyu people displaced in tribal clashes during the 1990s. It also accepted that he was harassed by the police, that he had been called to the police station, that the police had come to his office and house and had taken and destroyed his papers. However it was not of the view that this harassment constituted serious harm amounting to persecution.
In relation to the applicant’s claims that he had reason to fear serious harm given that three colleagues were killed, that at least two of them were said to have been killed by the police, and that unconvincing reasons were offered by the police for these deaths, the Tribunal noted that the applicant continued to play a public role in the organisation (including publishing articles in the press with his name on them) for some time after these deaths and that he remained in Kenya for close to two months after obtaining valid travel documents (which in turn were not obtained until two months after the deaths). The Tribunal found that this indicated that he did not fear any immediate danger.
Moreover the Tribunal had regard to the evidence that there had been a substantial change in the political scene in Kenya since the applicant’s departure. There had been a change of government in December 2002 after what independent information indicated were fair elections and a coalition led by a President who was himself a Kikuyu had come into power.
The Tribunal “acknowledge[d] that a final report card on the new government cannot be issued at this point”. It referred to the fact that there had not yet been major annual summaries of the new government’s progress. It observed however that there had been “no negative bulletins” such as those put out by organisations when a government abuses its citizens’ human rights and that there had been a number of positive developments in relation to anti-corruption, a purge of the judiciary of unethical or corrupt judges and public statements from the new President deploring the entrenching of tribalism and the institutionalisation of corruption during the former regime.
The Tribunal noted that:
“under the new government there had been no continuation of the police harassment of the applicant: the police who continued to ask for the applicant at his home even after his departure discontinued their activities before the end of 2002 and that they had never been resumed.”
The Tribunal also noted that, even if the new President deplored tribalism, he was a Kikuyu. It found the chance that he would sanction harassment against an organisation such as the FDRS (which attempted to assist internally displaced Kikuyus) was remote. In any event as the FDRS was currently defunct, the Tribunal found it implausible that were it to be resurrected by the applicant, it would attract animosity such as it did during the former President’s time.
The Tribunal also addressed the applicant’s claim that the passage of time was necessary for him to decide whether it was safe for him to return to Kenya. It pointed out that the claims of an applicant must be assessed at the time the application was before the Tribunal and that it was not possible to allow the applicant to have an unspecified period of time to observe the progress of the new government in his country. It was satisfied that the situation in Kenya was substantially different to that which had prevailed at the time when the applicant departed.
The Tribunal observed that it had already found that the applicant had not suffered serious harm amounting to persecution in the past for a Convention reason. It found that it was satisfied that the chance that he would so suffer in the reasonably foreseeable future was remote. Hence it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. It found that he was not a refugee.
The applicant sought review by application filed in this Court on 3 February 2004. He relies on a further amended application filed in Court. This application contains two unparticularised grounds which were addressed in written and oral submissions by counsel for the applicant.
The first ground is: “The Tribunal committed jurisdictional error in making an erroneous finding in respect of the finding that the applicant did not suffer serious harm amounting to persecution”.
It was contended for the applicant that the Tribunal committed jurisdictional error ‘in respect’ of the finding that the applicant did not suffer serious harm amounting to persecution within s.91R of the Migration Act 1958 (Cth) (the Act) in the manner considered in Craig v South Australia (1995) 184 CLR 163 at 179:
If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
Section 91R is, relevantly, as follows:
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 ill‑treatment 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.
The Tribunal’s ‘erroneous’ findings were said to be threefold. First it was contended in written submissions that the Tribunal:
made the erroneous finding that the fear of serious harm the Applicant had suffered due to the death by the police of at least two of the Applicant’s colleagues of the Friends of Domestic Refugees Society (FDRS) was serious mental harm caused by the death of people closely associated with the person seeking protection.
The Tribunal did not in fact make such a finding. However as clarified in oral submissions, it is apparent that the applicant was intending to submit that the Tribunal erred in finding that the fear of mental harm caused by the death of people closely associated with the applicant was ‘not’ serious harm.
In its consideration of whether the applicant had a well-founded fear of persecution the Tribunal properly had regard to past events. In effect it is submitted by the applicant that the Tribunal erred by failing to consider or find that the applicant himself had not suffered serious harm amounting to persecution because of the death of his colleagues, on the basis that serious harm could include the psychological impact of deaths of colleagues.
It was contended for the applicant that assistance as to the intended reach of s.91R of the Act was provided in the Explanatory Memorandum to the Migration Legislation Amendment Act (No 6) 2001 to the effect that: “Persecution must constitute serious harm. The serious harm test does not exclude serious mental harm. Such harm could be caused, for example, by the conducting of mock execution, executions, or threats to the life of people very closely associated with the person seeking protection. In addition, serious harm can arise from a series or number of acts which, when taken cumulatively, amount to serious harm of the individual.” (Explanatory Memorandum paragraph 25).
However the Tribunal did not find that serious mental harm did not or could not constitute serious harm within s.91R of the Act. Moreover, while the applicant claimed that he feared being killed, the evidence given by him about the deaths of colleagues and harassment by the police did not suggest or raise a claim that the serious harm he had suffered or feared he would suffer was of a psychological nature. His claim was not put in those terms. There is nothing in the material before the Court to indicate that the applicant claimed that past events constituted serious harm consisting of psychological harm to him within s.91R of the Migration Act 1958. While the Tribunal “is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated” (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 219 ALR 27 at [58]), the material before the Court does not raise a claim that the applicant had suffered past serious mental or psychological harm because of the deaths of his colleagues and/or harassment of him or that he had such a fear about the future. Rather he claimed that the fact that his colleagues had been killed was one of the reasons that he feared being killed should he return to Kenya. The Tribunal “is not required to consider a case that is not expressly made or does not arise clearly on the materials before it” (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) 219 ALR 27 at [61]).
In any event, the Tribunal proceeded on the basis of accepting that the applicant’s colleagues had been killed. It did not reject his claim that there was police involvement in at least two of these deaths, that unconvincing reasons were offered by the police for these deaths or that he had been harassed as claimed. On this basis the Tribunal considered, but rejected, the possibility that the past events, including the harassment of the applicant, constituted serious harm amounting to persecution of the applicant. The Tribunal also considered the relevance of the deaths of the applicant’s colleagues to the question of whether he had a reason to fear serious harm in the past or in the future (in relation to which it considered the substantial change in the political scene in Kenya since the applicant’s departure). The Tribunal acknowledged that the applicant claimed that he had reason to fear serious harm given the deaths of his colleagues and the circumstances of their deaths. His claim was that he feared a ‘similar fate’ to that of his former colleagues and that he feared for his safety. The Tribunal set out this claim, but had regard to what it considered to be indicia of the applicant’s lack of subjective fear, which was contrary to his claim that he held such a fear because of the deaths of his colleagues. In particular it noted that he had continued to play a public role in the organisation for some time after the deaths, that he remained in Kenya for close to two months after obtaining valid travel documents which in turn had not been obtained for two months after the deaths. The Tribunal found in effect that the applicant’s claimed subjective fear (which was a claimed fear that he would be killed) was not borne out by such matters which indicated that he did not fear any “immediate danger”. Further it found that there had been a substantial change in the situation in Kenya and was satisfied that the chance the applicant would suffer serious harm amounting to persecution in the foreseeable future was remote. Insofar as the applicant takes issue with the Tribunal findings, he seeks impermissible merits review. It did not make a finding that serious mental harm did not or could not constitute serious harm within s.91R of the Act or err in the manner contended.
The second aspect of this ground is a claim that the Tribunal made a finding “that for two months after the death by the police of at least two of the applicant’s colleagues of the FDRS, the applicant did not fear any immediate danger” and that in so doing it applied a test of ‘fear of immediate danger’ rather than the s.91R(1)(b) test which requires that the persecution involve serious harm to the person. Again the Tribunal did not make such a finding. The Tribunal considered the applicant’s claim to have had reason to fear serious harm in light of his continued public role in the FDRS and the fact that he remained in Kenya for close to two months after obtaining valid travel documents which had not come until two months after the deaths. The Tribunal found that these matters indicated that the applicant did not fear any immediate danger. It has not been established that the Tribunal applied a wrong test of “fear of immediate danger” instead of the test under s.91R(1)(b). Rather, as part of its decision-making process, it had regard to whether it was satisfied that the applicant had suffered or did subjectively fear serious harm. The Tribunal proceeded on the basis that the death of colleagues could give rise to a fear of serious harm. However it found that the applicant had not suffered past serious harm amounting to persecution for a Convention reason, consistent with s.91R. It then addressed “the chance that he will so suffer” in the future. No error is demonstrated in the manner contended.
The third aspect of this ground is that the Tribunal:
made an erroneous finding in that the Tribunal did not make a finding on the basis that the serious harm could have arisen due to a series or number of harmful acts, which taken cumulatively amounted to serious harm of the applicant, being the harassment by the police at the applicant’s home, office and at the police station, and the serious mental harm the applicant had suffered due to the death by the police of at least two of the applicant’s colleagues of the FDRS.

It was contended that the Tribunal erred in failing to have regard to all of the events complained of by the applicant in a cumulative manner in determining whether he had suffered serious harm amounting to persecution in the past. However, as indicated, the Tribunal considered the applicant’s claims as to past harassment and otherwise. He did not make a claim that he had experienced serious mental harm constituting past persecution. Rather, as indicated, he claimed to have experienced harassment and that he had reason to fear serious harm such as being killed given that three colleagues had been killed. These claims were addressed by the Tribunal in light of the nature of the harassment and the absence of an indication of a subjective fear on the part of the applicant. No jurisdictional error is established on any of the bases contended for in the first ground.
The second ground in the further amended application is:
The Tribunal committed jurisdictional error in making an erroneous [finding] in that the Tribunal made a finding of one of the applicant’s claims in the absence of probative evidence.
There are no particulars to this ground, but in written submissions it was contended that the Tribunal committed jurisdictional error in making a finding that under the Kenyan government at the end of 2002 there had been no resumption of police harassment. It was submitted that this finding was made in the absence of probative evidence of police harassment under the new Kenyan government, including any probative country information evidence.
This ground takes issue with the following part of the Tribunal reasons for decision:
The Tribunal notes that, under the new government, there has been no continuation of the police harassment of the applicant: the police who continued to ask for the applicant at his home even after his departure discontinued their activities before the end of 2002 and they have never been resumed.
It appears to be contended that the Tribunal erred in making this finding in the absence of any independent country information as to the state of police harassment since the change of government in Kenya, particularly as the Tribunal had acknowledged that a “final report card” on the new government could not be issued at the time of the decision (given the short time that the government had been in office) and as there had been no major annual summaries of the new government’s progress such as those issued by Human Rights Watch, Amnesty International or the US State Department.
However this contention is misconceived. The Tribunal’s findings in relation to police harassment of the applicant were based not on the presence or absence of country information, but rather on the evidence of the applicant at the Tribunal hearing. The only account of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The Tribunal recorded the applicant’s complaints about past harassment of him while he was in Kenya and that he told it that after the deaths of his colleagues in April 2002 police harassment of him continued between April and August 2002 in that he would be called to the police station or the police (from the CID) would come to his office. It observed:
The Tribunal asked when was the last time that the police came looking for him. The applicant replied that, from information from his wife, he understood that the police came to his house several times after his departure in August [2002] but that their visits “tailed off” and had ceased by the latter part of the year.
In other words it is clear that when the Tribunal asked the applicant about the last time the police came looking for him, the applicant said that while the police visited his house several times after his departure their visits ceased by late 2002. On this basis it was open to the Tribunal to find that under the new government (which was installed in December 2002) there had been no continuance or resumption of police harassment of the applicant. It is clear that the Tribunal was discussing police harassment of or directed at the applicant and not whether or not the police were or are harassing citizens other than the applicant.
The finding in issue related to a claim of the applicant that it was too early to assess the new government and determine whether it was safe for him to return to Kenya. The reference to a lack of a “final report card” did not amount to a general acknowledgement by the Tribunal that it had “no” information upon which to base its findings. It also found that the chance that the new President (who was himself a Kikuyu) would sanction harassment against an organisation such as FDRS (which assisted Kikuyus) was remote. There was evidence of the President’s background as well as of positive developments since the election on which it was open to the Tribunal to make such a finding.
The findings of the Tribunal were open to it on the material before it, including, in one respect, a lack of negative information. No lack of probative evidence constituting jurisdictional error has been demonstrated.
As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 13 April 2006