SZTLM v Minister for Immigration

[2014] FCCA 2911

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTLM v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2911

Catchwords:
MIGRATION – Review by Refugee Review Tribunal (Tribunal) – whether Tribunal afforded applicant procedural fairness – whether Tribunal failed to consider relevant material – whether Tribunal considered irrelevant material – whether the Tribunal made findings unsupported by any evidence – whether Tribunal was obliged to investigate matters – no jurisdictional error.

Applicant: SZTLM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2658 of 2013

Judgment of: Judge Manousaridis

Hearing dates: 24 April, 5 May and 20 May 2014

Delivered at: Sydney

Delivered on: 12 December 2014

REPRESENTATION

Applicant in person assisted by an interpreter

Counsel for the Respondents: Mr J. Smith SC

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2658 of 2013

SZTLM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In this application for judicial review, the applicant, a national of Cameroon, seeks to set aside the decision of the second respondent (Tribunal) by which it affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a protection visa.

2. Before I consider the grounds on which the applicant seeks to set aside the Tribunal’s decision, it will be necessary to set out the applicant’s claims for protection, and the Tribunal’s reasons for rejecting them. It will also be necessary to set out the reasons for which the delegate of the Minister did not grant the applicant a protection visa.

The applicant’s claims for protection

1. The asserted facts on which the applicant relied for his claims are as follows. The applicant is a senior official of what I will refer to as ABC.[1] After his graduation from university in 2005,[2] the applicant worked full time with ABC.[3] In late 2004 the applicant became a member of a human rights organisation.[4]

   [1] CB36, [2]

   [2] CB36, [4]

   [3] CB38, [11]

   [4] CB39, [14]

2. In late 2005 the applicant attended an international forum outside of Cameroon in which he showed footage of a protest in Cameroon that involved violence by authorities.[5] One week after he returned to Cameroon, the applicant was taken by the police and beaten. The applicant was told he was being beaten because he had brought down the image of Cameroon before the international community.[6] The applicant was released after he signed a statement undertaking he would not involve himself in any public demonstrations in Cameroon.[7]

   [5] CB40, [18]

   [6] CB41, [21]

   [7] CB41, [21]

3. In early 2008, when an uprising against the Government was in progress, the applicant was arranging an inter-agency forum for a number of non-government organisations in Cameroon.[8] That involved the applicant corresponding with the Government about the proposed forum.[9] Approximately two weeks after the uprising was suppressed, a number of men visited the applicant’s home, took him to the police station, and there beat him and kept him in a cell overnight.[10] The applicant was released, but was told he should be very careful of his activities.[11]

   [8] CB41, [25]

   [9] CB42, [26]

   [10] CB42, [27]

   [11] CB42, [27]

4. In June 2008, a few weeks before the inter-agency forum was to commence, the applicant received a telephone call from a police officer who said he wanted to ask the applicant questions about the inter-agency forum. The applicant attended the police station and was questioned for six hours.[12] In July 2008, the applicant was approached by men who did not identify themselves and was warned not to undertake particular activities during the inter-agency forum, and that they did not want to hear anything in the press from the applicant.[13]

   [12] CB42-43, [29]

   [13] CB43, [30]

5. In February 2011 the police telephoned the applicant and ordered him to attend the police station. The applicant was interrogated for about six hours about a public demonstration that was planned to take place to remember those killed in the 2008 civil unrests.[14] Also in 2011 the applicant arranged a project that consisted in the consultation with the Commonwealth Eminent Person Group on proposed reforms to the Commonwealth.[15] The consultations took place in three cities, including Yaounde. During the Yaounde consultations four persons approached the applicant and questioned him about the consultation the applicant was conducting in Yaounde, and warned the applicant not to create a situation like the Arab uprising.[16]

   [14] CB43-44, [33]

   [15] CB44, [34]

   [16] CB45, [38]

6. After the election of October 2011, the applicant participated in a rally that protested the election results during which he gave evidence of electoral fraud, and called for peaceful demonstrations against the declared election results.[17] On 22 October 2011 the applicant wrote a blog claiming the election results were the product of fraud.[18]

   [17] CB47, [48]

   [18] CB47, [49]

7. In October 2011 a friend, who worked in the Government, informed the applicant that his name was on a Government blacklist, that the Government was preparing to issue a warrant to arrest the applicant, and that the applicant must leave Cameroon or the applicant’s life would be at stake.[19] Coincidentally, the applicant had already in August 2011 applied for an Australian visa to attend a conference in Perth.[20]

   [19] CB48, [50]

   [20] CB48, [51]

8. Two days after the applicant’s friend warned him of his impending arrest, the applicant, who was then hiding in another friend’s house, received a call from DHL informing him that the applicant’s passport had just arrived from the Australian High Commission in Nairobi (AHC).[21] The applicant arranged for another friend to collect the visa.[22] The applicant’s two friends then booked the flight out of Cameroon, paid for the ticket, and arranged matters so that the applicant could go through security.[23] As he boarded the plane, one of the applicant’s friends informed him that the Secretary-General of ABC had been arrested and taken to Yaounde Central Prison.[24]

   [21] CB49, [52]-[53]

   [22] CB49, [53]

   [23] CB49, [54]

   [24] CB50, [55]

9. The applicant claims he fears he would be imprisoned, tortured or killed if he returned to Cameroon because of his involvement with ABC and activism “for democracy, good governance, justice, human rights and political reforms”.[25] The applicant would continue to “advocate for the course [sic] democracy, good governance, justice and Human rights, and political reforms in the system”.[26]

   [25] CB50, [57]

   [26] CB50, [59]

The delegate’s decision

1. The delegate did not accept the applicant to be worthy of credit. The delegate did not accept the applicant’s evidence that he did not hear about his visa to Australia from the AHC until 24 October 2011. The delegate placed “great weight” on Departmental records that showed that an email was sent on 21 October 2011 to the applicant’s email address and a separate email to a Ministry of the Cameroon Government (Ministry).[27]

   [27] CB149

2. The delegate also placed weight on Departmental systems showing that an official of the Ministry liaised with the AHC regarding the applicant’s visa for the conference in Australia and was advised that the applicant’s visa had been granted on 30 August 2011.[28] That was a reference to an exchange of emails on 20 October 2011 between an official of the Ministry (Ministry official) and the AHC in which the Ministry official enquired of the AHC about the progress of a visa for which the applicant had applied.[29] That led the delegate to conclude that the Government was aware of the applicant’s visa to attend the conference in Australia and that if, as the applicant claimed, the Government intended to arrest the applicant, the Government would have done so immediately to prevent him from leaving Cameroon, or they would have cancelled the applicant’s visa to Australia or taken measures to apprehend the applicant at the airport.[30]

   [28] CB149

   [29] CB202-203

   [30] CB149-150

The Tribunal’s reasons

1. The Tribunal accepted the applicant was a senior official of ABC. The Tribunal, however, did not otherwise accept the applicant’s claims. The Tribunal had difficulty in accepting the applicant told the truth about the problems he claims to have had in Cameroon.[31]

   a)It did not appear from the material on the public record that the Government of Cameroon attempted to prevent ABC from carrying out its activities; and a document the applicant submitted to the Tribunal indicated that representatives of the Ministry of External Relations took part in the Yaounde consultation.[32]

   b)Although the applicant claims he spoke to senior officials at the international forum in 2005, he did not inform any international organisations represented at the forum that he had been beaten.[33]

   c)The applicant said that during the inter-agency forum in 2008, the applicant informed a visitor of the warning that had been conveyed to the applicant, but no evidence from the visitor was provided to the Tribunal.[34]

   d)There were no reports in reputable human rights sources about the arrest of the Secretary-General of ABC;[35] and the newspaper article the applicant provided to the Tribunal contradicted aspects of the applicant’s evidence.[36]

   e)If it were true that the Government arrested the Secretary-General, that raised questions why the Government simply did not arrest the applicant rather than prepare a warrant for his arrest.[37]

   f)The email the Ministry official sent on 20 October 2011 to the AHC in relation to the applicant’s visa suggested the applicant was not perceived to be an activist opposed to the Government of Cameroon, and it cast doubt on the applicant’s claims that he was repeatedly arrested, warned and beaten by authorities in Cameroon because of his political opinion.[38]

   g)On the basis of the applicant’s being advised by email on 21 October 2011 that his passport had been dispatched back to him by DHL, the Tribunal concluded the applicant was aware he had been issued with the visa before he posted an article on his blog on 22 October 2011, and that he did that because he was planning to apply for refugee status in Australia.[39]

   [31] CB264, [80]

   [32] CB264, [80]; CB268, [95]

   [33] CB264, [81]

   [34] CB265, [82]

   [35] CB265, [84]; CB268, [95]

   [36] CB265, [84]

   [37] CB266, [87]

   [38] CB266, [88] CB268, [95]

   [39] CB267 [90]; CB269, [98]

Grounds of review

1. The grounds on which the applicant, who is not legally represented, relies are set out in a document titled “Re: Affidavit of SZTLM” which is identified as “Annexure A” in the affidavit of the applicant sworn on 25 February 2014 (annexure “A”). In that affidavit, the applicant refers to annexure “A” as containing “the full grounds I relied upon”. The applicant also relies on a document titled “RE: Outline Submission”. This document is substantially similar to annexure “A”.[40] As the Minister, in his counsel’s written and oral submissions, has responded to the grounds set out in annexure “A” (which, together with the “RE: Outline Submissions”, I will refer to as the “Applicant’s Submissions”), I will consider as the applicant’s grounds of review the grounds contained in those documents.

   [40] The only differences is that the “RE: Outline Submissions” contains additional material in some of the paragraphs.

Ground 1 – breach of the common law rules of procedural fairness

1. The applicant claims the Tribunal failed to accord the applicant procedural fairness in a number of respects.

Failure to consider counsellor’s report

1. The first is that the Tribunal failed to consider a report prepared by a counsellor from the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors.[41] The report contains an assessment of the applicant conducted on 20 December 2011. The counsellor said the applicant reported:

   a range of severe signs and symptoms associated with posttraumatic stress, depression and anxiety, including: disturbed sleep; agitation; episodes of panic; low mood; reduced energy; social withdrawal; intrusive thoughts and images associated with past experience and fears for his future; reduced appetite; anhedonia; very poor concentration and memory; and somatic reactions including headache and weight loss.

   [41] CB125

2. The counsellor concluded:

   As a consequence of this symptomatic presentation, [the applicant] is not capable of undertaking paid employment for a period of at least three months. He is therefore in urgent need of whatever financial assistance can be provided to him.

3. The applicant submits the Tribunal did not take into account the opinions expressed in this report in assessing the applicant’s ability to recollect events that occurred to the applicant.[42] The applicant particularly refers to the Tribunal’s observations that the explanation the applicant gave to the Tribunal about his relationship with the Ministry official who sent the email about the applicant’s visa was not one the applicant gave during the Departmental interview.[43]

   [42] Applicant’s Submissions, [2]

   [43] Applicant’s Submissions, [2]; CB266, [89]

4. The Tribunal considered whether the applicant had the capacity to participate effectively in the hearing before the Tribunal and referred to the counsellor’s report. The Tribunal said:[44]

   I have considered the evidence regarding the applicant’s post-traumatic stress, depression and anxiety in assessing whether he had the capacity to participate in the Tribunal hearing. Although the counsellor said in his letter that the applicant’s symptoms included very poor concentration and memory, the applicant had no apparent difficulty in recalling the events which form the basis of his claims in Cameroon. He answered my questions appropriately and he was able to address the issues which I raised with him in the course of the hearing. I consider that he was able to participate effectively in the hearing before the Tribunal.

   [44] CB246, [4]

5. Although it was open to the Tribunal to make these findings, they do not address the claim that the Tribunal failed to take into account the report when considering the fact that the explanation the applicant gave to the Tribunal for the Ministry official sending the email to the AHC on 20 October 2011 was one the applicant did not give to the delegate. This was not, however, a matter that the Tribunal was required to take into account.

6. The Tribunal did put to the applicant that the explanation the applicant gave to the Tribunal was not one he gave to the delegate, and the Tribunal further informed the applicant that it might consider that this might suggest the applicant was prepared to change his evidence if he believes that would be to his advantage.[45] The Tribunal’s reasons for decision, however, do not record the applicant submitting to the Tribunal that he did not give the explanation to the delegate because he had poor memory or concentration.[46]

   [45] CB266, [89]

   [46] CB266, [89]

Failure to address delegate’s statements

1. The second way in which the applicant claims the Tribunal failed to accord the applicant procedural fairness is that the Tribunal did not accept a matter the applicant says the delegate accepted. The delegate, the applicant says, accepted there was no link between the Ministry and the police and, for that reason, the delegate doubted the applicant’s claim that his friend could have been aware of the applicant’s imminent arrest. On the other hand, the Tribunal accepted there was a link. In the Applicant’s Submissions, the applicant submits that the Tribunal’s finding a link between the Ministry and the police indicates that “they have advanced this point because they believe it would serious work against my claim”.[47]

   [47] Applicant’s submissions, [4]

2. The applicant made theses submission at the hearing:[48]

   [48] 5.5.14, T45.35-T46.1

   HIS HONOUR: So your point is the delegate accepted there was no link.

   SZTLM: Yes.

   HIS HONOUR: And the tribunal accepted there was a link.

   SZTLM: The tribunal accepted that there was a – changed that it was a link because there was an email. Even the delegate . . . they’re looking for information that can adversely affect me, but they’re not actually doing – because . . . I’ve found is that they’re not fair in that process because, at one point, they’re saying, “There’s no link”, and at one point they say, “There’s link”.

3. And a little later, the applicant accepted my understanding of the applicant’s submission:[49]

   [49] 5.5.14, T46.35-T46.40

   HIS HONOUR: All right. So I just want to understand what your submission is. You’re saying there was procedural unfairness solely because the delegate was putting to you there was no link, but the tribunal, on the other hand, said there was a link. Is that the submission you’re making?

   SZTLM:     Yes, yes, your Honour.

4. The fact that the Tribunal did not accept something the delegate accepted does not by itself indicate any jurisdictional error by the Tribunal. What may suggest jurisdictional error, however, is if the Tribunal did not accept something that was accepted by the delegate without the Tribunal first giving the applicant notice that the Tribunal might not accept that which the delegate accepted. Perhaps, that is the claim the applicant makes.

5. The Tribunal made no finding about whether there was a link between the Ministry and the police. The relevance of the Ministry to the Tribunal’s decision was that a Ministry official sent an email on 20 October 2011 to the AHC. The Tribunal considered that suggested the Government of Cameroon did not perceive the applicant to be an activist opposed to the Government of Cameroon.[50] That there was or there was not a link between the Ministry and the police formed no part of the Tribunal’s reasons for concluding the Government of Cameroon did not perceive the applicant to be an activist opposed to it.

   [50] CB266, [88]

6. The Minister submitted that, perhaps, the point the applicant intends to make is that there was no link between the Ministry and the police so that, even if the Ministry knew the applicant intended to travel to Australia that did not mean the police did. Therefore, it was not open to the Tribunal to infer from the fact that the Ministry knew the applicant intended to visit Australia that the police would have known and would have issued a warrant for the arrest of the applicant, had the applicant been perceived as an activist opposed to the Government of Cameroon.

7. If that is what the applicant intended to submit, I would not accept it. The Tribunal did not in terms infer that the police knew the applicant intended to leave Cameroon. The Tribunal inferred that, because the Ministry was aware the applicant intended to leave Cameroon, yet no action was taken by the Cameroon Government to prevent the applicant from leaving, the Cameroon Government did not perceive the applicant to be an activist that opposed it. It was open to the Tribunal to so infer. The applicant’s claim referred to the actions of “the government” in general. The applicant claimed that on 22 October 2011 his friend told him that “the government was preparing a warrant for my arrest for what I said against the government”, and that the applicant’s name “was on the government black list”.[51]

   [51] CB48, [50]

Failure to consider email of 17 October 2011

1. The third way in which the applicant claims the Tribunal failed to accord the applicant procedural fairness relates to the Tribunal’s attaching significance to the applicant receiving an email on 21 October 2011 that his passport had been dispatched to the applicant by DHL. The applicant submits that, in finding that the applicant was aware on 21 October 2011 that he had been granted a visa to enter Australia, the Tribunal ignored an email the applicant had sent to the AHC on 17 October 2011.[52] The email is annexure “H” to the Applicant’s Submissions.

   [52] Applicant’s Submissions, [10]

1. That email does not appear to have been submitted to the Tribunal. The Tribunal cannot have denied the applicant procedural fairness, or otherwise made a jurisdictional error, by failing to consider evidence that was not put before the Tribunal. The Tribunal put to the applicant unequivocally what it considered to be the relevance of the Department records showing that the applicant had received an email on 21 October 2011 from the AHC informing him that his passport had been dispatched. The applicant, therefore, was given an opportunity to place before the Tribunal the email of 17 October 2011.

Incorrect statement of date of document

1. The fourth way in which the applicant claims the Tribunal failed to accord the applicant procedural fairness is the Tribunal’s incorrectly recording the date of a document.[53] The document purports to be an affidavit made by the President of the High Court of Justice dated 6 November 2011 on the letter-head of “Volunteers for Prison Inmates (VPI) Cameroon”.[54] It deposes to a number of matters relating to the applicant, including the applicant’s having made on 22 October 2011 a declaration calling for a peaceful demonstration, and his “still being wanted and hunted in Cameroon following his public call for a peaceful demonstration”.[55] The Tribunal referred to the document, but said it was dated 6 October 2011.

   [53] Applicant’s Submissions, [11]

   [54] CB52

   [55] CB53

2. That the Tribunal noted the incorrect date of the document does not, in the circumstances of this case, manifest any jurisdictional error. The Tribunal considered this document, together with other documents, to be of “doubtful provenance”, and did not consider that any weight the Tribunal might give to the documents “outweighs the problems I have with the applicant’s own evidence”.[56] There is nothing to suggest that the date the Tribunal noted as the date of the document had any bearing on the Tribunal’s conclusions about the document.

[56] CB268, [94]

Failure to consider complementary protection claim

1. The fifth way in which the applicant claims the Tribunal failed to accord the applicant procedural fairness relates to the following passage from the Tribunal’s reasons for decision:[57]

   They [the applicant’s representative] submitted that independent country information clearly indicated that ‘internally displaced Cameroon [sic] face significant subsistence based threats due to high levels of poverty’. They referred to no information in support of this proposition and in any event they had earlier submitted that there was a real chance that the applicant would be persecuted throughout Cameroon so that the issue of relocation did not arise.

   [57] CB270, [101]

2. The applicant appears to submit that this passage indicates the Tribunal did not consider the applicant’s claim that he would be killed, tortured, and suffer other significant harm.[58] He submits the Tribunal “clearly altered a fact”.[59]

   [58] Applicant’s Submissions, [12]

   [59] Applicant’s Submissions, [12]

3. The applicant did make such a claim. The Tribunal records that submission in the sentence immediately preceding the passage I have reproduced above. That claim was based on the applicant’s evidence about what had occurred to him in Cameroon. The Tribunal considered the claim, but rejected it. The Tribunal rejected the claim because it did not accept the applicant’s evidence.

4. To the extent the applicant challenges the Tribunal’s finding that the applicant’s representative pointed to no evidence in support of the proposition that “internally displaced Cameroon [sic] face significant subsistence based threats due to high levels of poverty”, that cannot be sustained. It is clear from the applicant’s representative’s submissions that the representative did not identify any such evidence.

Failure to deal with claim that sender of email to AHC was in Australia

1. The sixth way in which the applicant claims the Tribunal failed to accord the applicant procedural fairness is that the Tribunal failed to “investigate” the claim the Ministry official was not in Cameroon, but was in Australia.[60]

   [60] Applicant’s Submissions, [13]

2. The AHC sent an email in response to the email from the Ministry official who inquired about the visa applications of two Cameroonian representatives of ABC, one of which was the applicant, “en route for” a people’s forum in Australia.[61] The email from the AHC stated that the AHC’s records showed the visas had been granted on 30 August 2011, and that notification of the decision was sent the same day by email.[62] The letter concluded:

   Please advise urgently how you wish these to be returned to you or to which address. I am happy for us to arrange for DHL at our expense if it is more convenient.

   [61] CB203

   [62] CB202

3. The evidence the applicant claims the Tribunal ought to have investigated is that contained in the applicant’s statutory declaration made on 19 June 2012. The applicant stated that on 20 October 2011 the Ministry official “was not in Cameroon as he had departed for Australia one week prior”.[63] This evidence, however, formed part of the evidence the applicant gave in response to the delegate’s reliance on the email from the AHC to the Ministry.[64] In his statutory declaration, the applicant said that he did not know why the AHC emailed the Ministry official.[65] The applicant said he could only speculate that the Ministry official, who before the Tribunal the applicant claimed was a personal friend, enquired on his own behalf of the progress of the applicant’s visa application. The applicant further suggested in his statutory declaration that the Ministry official may have made the inquiry as to the applicant’s visa application because he was planning to attend the CHOGM meeting in Australia, the Ministry official had approached the applicant to discuss what had happened at the CHOGM meeting in Ghana in October 2011, and the applicant informed the Ministry official that the applicant did not attend the CHOGM meeting in Ghana because his passport was still with the AHC.[66]

   [63] CB188

   [64] CB149

   [65] CB188, [9]

   [66] CB188, [8]

4. In my opinion, the Tribunal was under no obligation to make any finding about whether the Ministry official who received the communication was or was not in Cameroon at the time the AHC sent its email. The applicant’s evidence assumes the Ministry official knew the applicant had applied for a visa. Yet it was the fact that the Ministry official was aware of the applicant’s having applied for a visa that suggested to the Tribunal that the applicant was not perceived as an activist opposed to the Government of Cameroon, and which cast doubt on the applicant’s claims that he was repeatedly arrested, warned and beaten by the authorities in Cameroon because of his political opinion.[67] Whether or not the Ministry official was in Cameroon or not at the time the AHC sent the email to him could not reasonably have affected the Tribunal’s having found that the Ministry official was aware the applicant had applied for a visa to enter Australia.

   [67] CB266, [88]

5. In his oral submission to the Court, the significance the applicant appeared to attach to the Ministry official’s not being in Cameroon is that he could not be taken to have knowledge that the applicant intended to depart Cameroon.[68] That is not a submission the applicant appeared to make to the Tribunal, and it is not the evidence the applicant gave to the Tribunal. The applicant said in his statutory declaration that the Ministry official was a friend of the applicant who shared the applicant’s beliefs and he “would not have passed on the information regarding the grant of my Australian visa to the government”.[69]

   [68] 24.4.14, T16.5

   [69] CB188, [9]

Failure to consider documents

1. The seventh way in which the applicant claims the Tribunal failed to accord the applicant procedural fairness is that the Tribunal failed to consider “the affidavit and press release from Volunteers for Prison Inmates”.[70] The applicant submits both the delegate and Tribunal mentioned that the logo on the press release has a discrepancy, but it did not explain what that discrepancy was said to be. The affidavit to which the applicant appears to refer is that to which I have already referred, being a purported affidavit made by the President of the High Court of Justice on the letterhead of “Volunteers for Prison Inmates (VPI) Cameroon” (VPIC).[71] The relevant press release appears to be the one dated 25 October 2011 purportedly issued by VPIC.[72]

   [70] Applicant’s submissions, [14]

   [71] CB52-54

   [72] CB130

2. The delegate did mention a discrepancy in the following passage from his reasons for decision:[73]

   He responded that the organisation, [VPIC], had located the individual in prison and wrote an article on the matter. Subsequently the applicant submitted a document purporting to be a press release from [ABC] [sic: delegate probably meant from VPIC] regarding the arrest of the Secretary General. I note, however that the ‘article’ does not carry any evidence of the weblink [sic] from where it has been sourced and does not appear to be available on the [VPIC] website or through other sources on the internet. I further note that there are discrepancies between the organisation’s logo on the document as opposed to that which appears on the website.

   [73] CB149

3. From the delegate’s decision, it appears that the discrepancy the delegate identified is that between the logo of the purported VPIC press release dated 25 October 2011 which the applicant provided to the delegate (and which, therefore, was before the Tribunal),[74] and the logo that appeared on the website of VPIC.

   [74] CB130

4. The delegate’s observations concerning the discrepancy in the VPIC logo was addressed by the applicant’s representative’s submission to the Tribunal as follows:[75]

   [T]here is no discrepancy between the logo appearing on the press release and that which appears on the VPI website. Our client does not know why it does not appear on the VPI website but believes that the VPI website has not been updated since 2005. He also believes that the press release was distributed by email rather than being published on the VPI website.

   [75] CB177, [6.b.]

5. It appears that the delegate did not take a copy of the VPIC website he accessed; and I infer the applicant did not provide a copy of a logo from the VPIC website. I so infer, first, because such website is not in the material that is before the Court and, second, because the applicant has attached as annexure “C” to his submissions what the applicant in his submissions claims is an “official document from VPI website (to show consistency of the logo with no discrepancy)”.[76] That document, which is dated “ JAN-FEB 2004” however, does not appear to be a document from any webpage, because the copy does not contain a link to any webpage.

   [76] Applicant’s Submissions, page 11.

6. The applicant also attached as annexure “D” to the Applicant’s Submissions what the applicant describes as “Press release from Volunteers for Prison Inmates (VPI) Cameroon (Annexure D)”. That purports to be the press release dated 25 October 2011 issued by VPIC that the applicant provided to the delegate (CB130).[77] However, annexure “D” is not identical with CB130: the document that is annexure “D” is dated 26 October 2011, whereas the document at CB130 is dated 25 October 2011; in the second paragraph of annexure “D” the word “volunteers” is in lower case whereas in CB130 it is capitalised; the third paragraph of annexure “D” states “forced to sleep naked in cold cells” whereas the third paragraph in CB130 states “forced to sleep naked in cold prison cells”; and  annexure “D” has the words “denied access to family members” while CB130 has the words “denied access from family members and friends”.

   [77] CB130

7. The answer to this part of the applicant’s claim before the Court is that the Tribunal did consider the purported VPIC press release dated 25 October 2011.[78] It is true the Tribunal did not compare the logo that appeared in the purported VPIC press release of 25 October 2011 with a logo that appeared on the VPIC website. But it was not obliged to. Apart from submitting there was no discrepancy between the logos, the applicant did not provide the Tribunal with a copy of a document downloaded from the VPIC website containing the VPIC’s logo, or any other evidence to show that the logo on the VPIC website was the same as the logo in the purported VPIC press release of 25 October 2011. The applicant has attempted to do that in these proceedings. It is not for this Court, however, to determine whether there was a discrepancy. In any event, and as I have already noted, the document the applicant has provided to the Court and which he claims is from the VPIC website, does not appear to have been downloaded from the VPIC website or from any website.

   [78] CB267, [91]

Failure to raise concerns about absence of witness signature

1. The eighth way in which the applicant claims the Tribunal failed to accord the applicant procedural fairness is that the Tribunal noted that an affidavit the applicant provided purportedly made by a barrister was not signed by a witness, whereas the Tribunal made no such “argument” in relation to the affidavit that was purportedly made by the President of the High Court of Justice. The applicant submits that the Tribunal did not raise that concern with the applicant’s representative, and the Tribunal failed to investigate what the local practice was relating to affidavits.[79]

   [79] Applicant’s submissions, [15]

2. It is true the Tribunal, when it referred to the purported affidavit of the barrister, did note the affidavit was not signed by a witness.[80] And it is also true that when the Tribunal referred to the affidavit made by the President of the High Court of Justice[81] it did not refer to the document not having been signed by a witness. Perhaps one reason for this is that the purported affidavit was in the body of a letter purportedly from VPIC that was addressed “TO WHOM IT MAY CONCERN”. Whatever the reason the Tribunal did not mention that the purported affidavit of the President of the High Court of Justice was not signed by a witness, the Tribunal’s not mentioning that fact in its reasons does not disclose any jurisdictional error by the Tribunal. Nor was the Tribunal obliged to inform the applicant that it had concerns about the purported affidavit of the barrister not being signed by a witness. These were matters for the Tribunal to take into account when determining whether to give the document any weight.

   [80] CB267, [92]

   [81] The purported affidavit is at CB52-54 and the Tribunal refers to this letter at par [18] and [91] of its reasons for decision.

3. In any event, the reason the Tribunal did not give any weight to the documents was not because of the absence of any witness signature, but because of the problems the Tribunal said it had with the applicant’s evidence.[82]

   [82] CB268, [94]

Failure to consider arrest and other documents

1. The ninth way in which the applicant claims the Tribunal failed to accord the applicant procedural fairness is, in effect, the Tribunal did not consider documents that were attached to the purported affidavit made by the barrister.[83] These documents are those described in paragraphs 16 and 17 of the purported affidavit. The document referred to in paragraph 16 is described as “an arrest warrant for the arrest and detention of” the applicant.[84] The documents referred to in paragraph 17 are described as “a police search warrant . . . a police convocation and a summons to appear” that were issued “following the disappearance of” the applicant.[85]

   [83] Applicant’s Submissions, [16]

   [84] CB236, [16]

   [85] CB237, [17]

2. The Tribunal did take the documents into account. It referred to the documents,[86] but gave them no weight because of the problems the Tribunal said it had with the applicant’s evidence.[87]

   [86] CB267, [92]

   [87] CB268, [94]

Breach of confidentiality

1. The tenth way in which the applicant claims the Tribunal failed to accord the applicant procedural fairness is that the Department breached a duty of confidentiality it owed the applicant by the AHC sending the email of 20 October 2011 to the Ministry official.[88] This ground has no bearing on whether or not the Tribunal made any jurisdictional error. The applicant did not submit to the Tribunal that it was not open to it to review the email because of any breach of a duty of confidentiality owed to the applicant.

   [88] Applicant’s Submissions, [17]

Failure to accept VPIC was reputable organisation

1. The eleventh way in which the applicant claims the Tribunal failed to accord the applicant procedural fairness is that the Tribunal stated there was no record supporting the applicant’s claim from any reputable organisation. The applicant submits that VPIC did have a record of the applicant’s claim, and, being an organisation with an observer status with the African Commission on Human and Peoples’ Rights, the VPIC was a reputable organisation.[89]

   [89] Applicant’s Submissions, [18]

2. The applicant’s submission appears to be addressed to the Tribunal’s noting that “there are no reports in reputable human rights sources about the arrest of the Secretary-General of [ABC] or indeed the arrest of anyone because of a rally held on 22 October 2011”.[90] Whether or not the VPIC was a reputable human rights source was a matter for the Tribunal to decide. It is not open to this Court on judicial review to consider whether the Tribunal was correct or incorrect.

   [90] CB268, [95]

Ignoring country information

1. The twelfth way in which the applicant claims the Tribunal failed to accord the applicant procedural fairness is that the Tribunal “deliberately ignored evidence of his own findings”.[91] This appears to be a reference to findings the Tribunal made on the basis of “United States Department of State, Country Report on Human Rights Practices for 2001 for Cameroon” (USDS Report). The applicant does not identify what findings the Tribunal “deliberately ignored”.

   [91] Applicant’s Submissions, [19]

2. The Tribunal, in its reasons, referred to the USDS Report at least three times. The Tribunal referred to the USDS Report two of the three times as evidence that the Cameroon Government arrested people at demonstrations.[92] The Tribunal put that information to the applicant as evidence against the applicant’s evidence that an arrest warrant had been issued against him. The Tribunal’s point was that, given that the Cameroon Government arrested people at demonstrations, the Cameroon Government would not have issued a warrant for the applicant’s arrest because it could have arrested the applicant at the demonstration of 22 October 2011.[93] The third time the Tribunal referred to the USDS Report is as evidence that a person who had signed a particular declaration had not been arrested.[94]

   [92] CB257, [52] and CB266, [87]

   [93] CB257, [52] and CB266, [87]

   [94] CB269, [99]

3. The Tribunal did not ignore any findings that it made on the basis of USDS Report.

Failure to take into account Cameroon Government had an online presence

1. The thirteenth way in which the applicant claims the Tribunal failed to accord the applicant procedural fairness is that the Tribunal failed to take into account information in the USDS Report that the Cameroon Government had a strong online presence, and that it would have had knowledge of the applicant’s blog on 22 October 2011.[95]

   [95] Applicant’s Submissions, [20]

2. The applicant does not say whether he made this submission before the Tribunal. A submission to that effect is not contained in the applicant’s statutory declarations of 12 December 2011 and 19 June 2012. Nor is a submission to that effect made in the applicant’s representative’s written submissions dated 20 August 2012. And the Tribunal does not in its reasons refer to the applicant making any such submission. The Tribunal, therefore, made no jurisdictional error in not addressing a submission that was not put before it. And in my opinion it was not a submission that reasonably arose on the material before the Tribunal.

Failure to investigate list of wanted persons

1. The fourteenth way in which the applicant claims the Tribunal failed to accord the applicant procedural fairness is that the Tribunal “failed to produce as a matter of fact a comprehensive list of wanted [sic] and people arrested in Cameroon in 2011 to support” the Tribunal’s conclusion that the applicant was not on any official record.[96] That amounts to a claim that the Tribunal was bound to undertake its own investigations. The Tribunal was under no such duty. It therefore made no jurisdictional error in failing to undertake a comprehensive investigation of wanted people and arrested people in Cameroon.

   [96] Applicant’s Submissions, [21]

Failure to give weight to document

1. The fifteenth, and final way in which the applicant claims the Tribunal failed to accord the applicant procedural fairness is that the Tribunal failed to place weight on the content of the email the Ministry official sent to the AHC on 20 October 2011.[97] That does not disclose any jurisdictional error. It is for the Tribunal to determine what weight it should assign to evidence that is before it.

   [97] Applicant’s Submissions, [22]

Ground 2 – failure to consider relevant material

1. The applicant submits that the Tribunal failed to take into account information contained in USDS Report that was favourable to the applicant. The applicant, in his written submissions, identifies those aspects of the USDS Report the Tribunal did not take into account. These relate to various violations of human rights in Cameroon and the arrests of human rights activists.[98]

   [98] Applicant’s Submissions, [23]

2. There is no substance to this ground to the extent the applicant claims the Tribunal did not consider the USDS Report. The Tribunal considered the USDS Report. However, that the USDS Report revealed human rights abuses in Cameroon was not relevant to the reasons for which the Tribunal did not accept the applicant’s claims. The Tribunal was not satisfied that the applicant was a person who had attracted the adverse interest of the Cameroon Government and would, for that reason, be exposed to the risk of the abuses identified in the USDS Report.

Ground 3 – consideration of irrelevant material

1. The applicant submits the Tribunal placed significant weight on two items of evidence. I take this ground to be that the Tribunal was irrational in relying on the three items of evidence on which the applicant claims the Tribunal placed significant weight.

2. The first item of evidence is the email the Ministry official sent to the AHC on 20 October 2011. The applicant claims the Tribunal “placed significant weight on the email”.[99] The applicant submits the email was not a government email, but a personal email. He submits the email was sent on 20 October 2011 but the demonstration took place on 22 October 2011. He further submits there was no evidence that the Ministry official was a person who would have known, or was in a position to have known, that an arrest warrant had been issued against the applicant.

   [99] Applicant’s Submissions, [24]

3. In my opinion, it was reasonably open to the Tribunal to find on the basis of the Ministry official’s email that it was an official email, not a personal email and, on the basis of that finding, further find that the applicant was not perceived by the Cameroon Government as an activist that was opposed to the Cameroon Government. That the Ministry official was a person who was in a position to know that the police had issued a warrant for the applicant’s arrest formed no part of the Tribunal’s conclusion that the email was material on the basis of which it could be concluded the applicant was not perceived to be an activist against the Government and, for that reason, be a person against whom a search warrant would be issued.

4. The second item of evidence on which the applicant claims the Tribunal placed significant weight was the email the AHC sent to the applicant on 21 October 2011[100] and the email the AHC sent to the Ministry official.[101] The applicant submits the emails indicate that the applicant had not received previous emails and, for that reason, the “department record has huge discrepancies on the record of visa [sic] my issuance and communication, and couldn’t be relied upon”.[102] The applicant further submits that the fact that the Departmental records indicate that the applicant’s visa had been issued on three dates, and that there is no record of any communication between the applicant and the AHC on 17 and 18 October 2011 cast serious doubt on the weight that can be placed on the Departmental record.[103] In my opinion, it was reasonably open to the Tribunal to rely on the emails and, to the extent it did so, on other Departmental records.

   [100] CB201

   [101] CB202

   [102] Applicant’s Submissions, [25]

   [103] Applicant’s Submissions, [25], second paragraph.

Ground 4 – “no evidence” to support findings

1. There are two claims under this ground. The first is that, in not accepting there is a real risk the Government of Cameroon is aware of the article the applicant posted on his blog on 22 October 2011 and that, therefore, the Tribunal did not accept there was a real risk the applicant would suffer significant harm as a result of the article, the Tribunal was speaking as a member of, or on behalf of the Government of Cameroon.[104] The applicant’s point appears to be that the Tribunal could make no such finding unless it received direct evidence from a person authorised to speak on behalf of the Cameroon Government. This submission cannot be accepted. It was open to the Tribunal on the basis of the material before it not to accept there is a real risk the applicant would suffer significant harm because of the article the applicant posted on his blog.

   [104] Applicant’s Submissions, [26]

2. The second claim under this ground repeats the submission that the Tribunal was unable to provide facts that the Ministry official was in Cameroon at the time the AHC sent the email of 20 October 2011, or that the Ministry official was in a position to know an arrest warrant had been issued against the applicant.[105] The Tribunal made no finding about whether the Ministry official was in Cameroon or in Australia. Nor did the Tribunal make any finding about whether the Ministry official knew a warrant for the applicant’s address had been issued. As I have already found, these matters were irrelevant to the Tribunal’s reasons for not accepting the applicant’s claims.

   [105] Applicant’s Submissions, [27]

Ground 5 – failure to investigate

1. Under this ground, the applicant makes a number of claims. The first is that the Tribunal failed to investigate whether there were any discrepancies in the VPIC logo.[106] There was no duty on the Tribunal to investigate that matter. To the extent it was relevant, it was up to the applicant to present material on whether there was a discrepancy between the logo in the purported VPIC press release of 22 October 2011 and the VPIC webpage to which the delegate referred.

   [106] Applicant’s Submissions, [28]

2. As I have noted above, the applicant’s representative made a submission to the Tribunal about that discrepancy. However, the applicant did not provide to the Tribunal evidence of the logo as it appeared on the VPIC webpage. The first occasion on which it appears the applicant has attempted to provide any such evidence is by his attaching to his written submissions as annexure “C” an “official document from VPI website”. Apart from annexure “C” being irrelevant to whether the Tribunal made any jurisdictional error (because the document was not provided to the Tribunal), as I have already noted, there is nothing to suggest that annexure “C” was sourced from the VPIC website, or from any other website.

3. The second matter the applicant claims the Tribunal failed to investigate was the Ministry official’s not responding to the AHC’s email of 20 October 2011, and the fact that the time the Ministry official sent his email to the AHC was 2:13 pm which indicates, so the applicant claims, the Ministry Official “was two hours east of GMT”.[107] The Tribunal was under no obligation to investigate these matters. It was a matter for the applicant to make submissions to the Tribunal about these matters. The applicant does not submit that he or his representative made submissions to the Tribunal on these matters.

   [107] Applicant’s Submissions, [29]

4. The third matter the applicant claims the Tribunal failed to investigate was why the applicant did not receive the email that was purportedly sent on 30 August 2011 “to bring clarity on why I couldn’t have received the email sent to me on 21^st October 2011”.[108] Again, the Tribunal was not obliged to investigate this matter. It was for the applicant to make a submission about it. He did not. The submission he made was that he imagined that the email of 21 October 2011 went to his junk mail.[109]

   [108] Applicant’s Submissions, [30]

   [109] CB262, [73]

5. The fourth matter the applicant claims the Tribunal failed to investigate is Cameroon legal practice in relation to the barrister’s affidavit that was not signed by a witness.[110] Again, this was a matter for the applicant to address in his evidence before the Tribunal.

   [110] Applicant’s Submissions, [31]

6. The fifth, and final matter, the applicant claims the Tribunal failed to investigate is material contained in the USDS Report that the MTN Cameroon (which, I assume, is an internet service provider) informed its customers that the Cameroon Government required it to suspend Twitter SMS on its network. This, too, was not a matter the Tribunal was obliged to investigate.

Conclusion and disposition

1. The applicant has not demonstrated the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed, and that the applicant pay the Minister’s costs.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 12 December 2014