SZTQP v MIBP
[2015] FCCA 423
•27 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTQP & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 423 |
| Catchwords: MIGRATION – Application for review of the decision of the Refugee Review Tribunal – whether Tribunal failed to apply complementary protection criterion – whether the Tribunal asked itself the wrong question – whether the Tribunal’s decision was irrational or unreasonable – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 91R, 476 Migration Amendment (Complementary Protection) Act 2011 (Cth) |
| Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 SZSNY v Minister for Immigration & Anor [2013] FCCA 1465 SZSFK v Minister for Immigration & Anor [2013] FCCA 7 SZSMQ v Minister for Immigration & Anor [2013] FCCA 1768 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 144 CLR 1 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577 |
| First Applicant: Second Applicant: Third Applicant: | SZTQP SZTQQ SZTQR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3071 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 30 October 2014 |
| Date of Last Submission: | 30 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2015 |
REPRESENTATION
| Counsel for the Applicants: | Ms T Baw |
| Solicitors for the Applicants: | Kinslor Prince Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 10 December 2013 and amended on 12 September 2014 is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $6000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3071 of 2013
| SZTQP |
First Applicant
SZTQQ
Second Applicant
SZTQR
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”) on the 10 December 2013 and amended on 12 September 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 November 2013 which affirmed the decision of the Minister’s delegate to refuse the grant of protection visas to the applicants.
The following was in evidence before the Court:
1)A bundle of relevant documents filed by the Minister in these proceedings (the “Court Book” - “CB”).
2)I note, a number of affidavits were filed on behalf of the applicants. They did not seek to read them before the Court (see further below)
Background
The applicants’ written submissions provide relevant factual background. The Minister did not take issue with what is set out at
[1] – [5] (of the applicant’s written submissions):
“1. The Applicant is a citizen of Rwanda.
2. He was born on 23 December 1977. He is 37 years old.
3. The Applicant’s wife… is a 34 year old citizen of Rwanda.
4. The Applicant and his wife have 2 sons, one who was born in Rwanda in 2007 and the other who was born in Australia in 2013.
5. On 1 February 2011, [the second applicant] first arrived in Australia on a subclass 576 student visa.
6. On 31 August 2011 the Applicant and their first son arrived in Australia on visas to join [the second applicant].
7. On 29 December 2011, the Applicant lodged a subclass 866 protection visa, including for his wife and child.
8. The Applicant claimed that he was a child soldier in Rwanda during the genocide and eventually became a body guard or escort to General Nyamwasa. The General took him under his wing and help him with his education and financially.
9. After a period of unrest there was a disagreement between General Nyamwasa and the current President of Rwanda. In 2010 General Nyamwasa fled to South Africa and was since granted asylum there.
10. The Applicant fears that if he is returned to Rwanda he will be persecuted due to his association with General Nyamwasa.
11. On the 29 June 2011, the Department refused the applicant’s protection visa application.
12. On 6 July 2012, the Applicant lodged an application for review with the Refugee Review Tribunal (‘The Tribunal’).
13. On 11 November 2013, the Tribunal made a decision affirming the delegate’s decision.
14. On 10 December 2013, the Applicant filed an Application for review of the Tribunal’s decision in the Federal Circuit Court of Australia (‘FCCA’).
15. On 12 September 2014, the Applicant filed an Amended Application on the FCCA.”
The applicant is a citizen of Rwanda. His claims to fear harm were said to emanate from his relationship with a particular general (“General N”) in Rwanda. He had become his adopted son. General N had come into conflict with the Rwandan government, and the applicant claimed that he had been harmed, and feared harm on return, because of his relationship. The second and third applicants (his wife and child) applied as members of his family unit (CB 27 to CB 40). I understood that references to arguments put to the Court, where appropriate, to include a reference to all the applicants.
The Tribunal accepted that the applicant was General N’s “adopted son” ([87] at CB 263 to CB 264). Although it noted that this did not imply a close a relationship in the Rwandan context, as it might have done in other contexts ([78] at CB 261 to CB 262). It also accepted that the applicant was questioned by the authorities in regard to his relationship with General N, in 5 March 2010, and was subsequently detained, questioned and tortured ([88] at CB 264).
It is important to note that the Tribunal did not make a general finding that the entirety of the applicant’s factual account was not credible. As set out above, the Tribunal accepted some parts the applicant’s factual account. Relevant to the grounds of the application to the Court, it accepted that the applicant’s bank account had been frozen, that his house was “stoned” and that he had received a number of threatening phone calls.
However, the Tribunal otherwise formed an adverse view of the applicant’s credibility, and that of his wife. It rejected a large number of the factual claims made by the applicant, on this basis.
The Tribunal accepted certain factual assertions made by the applicant. However, the Tribunal found, variously, that these did not occur for the reasons given, were not related to a Refugees Convention reason, were matters that had occurred in the past, but that in the circumstances, did not amount to a real chance of harm in the reasonably foreseeable future, given, amongst other things, the lack of interest in the applicant, by the authorities, when he left Rwanda.
Application before the Court
The grounds of the amended application are in the following terms:
“GROUND ONE
The second respondent failed to apply the complementary protection criteria to the applicant’s claims. In particular, the second respondent failed to assess whether the treatment experienced by the applicant amounted to ‘significant harm’ for the purposes of s.36(2)(aa) of the Migration Act 1958 (Cth).
Particulars
1. The second respondent accepted that the applicant’s bank accounts had been frozen, however, it did not accept that it was due to a Convention-based reason. The second respondent failed to determine whether that treatment was ‘significant harm’.
2. The second respondent accepted that the applicant’s home had been stoned, and also accepted that the authorities failed to respond after the stoning incidents. However, it did not accept that those matters were due to a
Convention-based reason. The second respondent failed to determine whether that treatment was ‘significant harm’.
GROUND TWO
The second respondent asked itself the wrong question in applying the complementary protection criteria and thereby failed to distinguish the tests posed by s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958 (Cth).
Particulars
1. The second respondent rejected a number of the applicant’s claims on the basis of an absence of a Convention nexus. In its analysis of the complementary protection claim, it made the same factual findings, see par [111] of the decision record. It was not open to the second respondent to reject the complementary protection claim simply for the same reasons as the Convention claims.
2. It was incumbent on the second respondent to identify and evaluate the incidents relevant to significant harm. The second respondent failed to do this in respect of the frozen bank accounts, stoning (including failure to respond), and threatening telephone calls experienced by the applicant. The reason for that harm is irrelevant to the s.36(2)(aa) inquiry.
GROUND THREE
The second respondent’s factual findings were irrational and/or unreasonable in that there was no logical connection between the evidence and the inferences and conclusions drawn. This led to a failure to rationally and/or reasonably consider the evidence in support of the applicant’s well-founded fear of persecution if he were returned to Rwanda.
Particulars
1. The second respondent erroneously perceived an inconsistency and/or omission in the applicant’s statement upon which it rejected the applicant’s evidence that the person who stamped his passport at the Rwandan airport when he left for Australia had subsequently disappeared, see [102] – [103] of the decision record. There was no such inconsistency and/or omissions in the evidence.
2. The second respondent accepted that the applicant’s bank accounts were frozen. However, it erroneously perceived an inconsistency in the applicant’s statement as to the reason why they were frozen, see [94] – [98] of the decision record. There was no such inconsistency in the evidence. The second respondent also failed to consider corroborative documentary evidence.
3. The second respondent erroneously perceived an inconsistency in the applicant’s statements upon which it rejected the applicant’s evidence that he and his wife had heard from both Rwandan protestors and a delegate of the 2011 CHOGM in Perth, that Rwandan government agents had been asking about him, see [104] – [105] of the decision record. There was no such inconsistency in the evidence.
4. The second respondent’s conclusion that the former Rwandan General’s caution about speaking to people ‘cannot apply to the period when he was Ambassador to India’, at [87] of the decision record, is without evidence, and the Member lacks any expertise to make that speculation.
5. The second respondent accepted the medical evidence of the applicant’s post-traumatic stress disorder and depression and its effect on the applicant’s memory. However in respect of a telephone call, the second respondent concluded that: ‘he and his wife could not have forgotten to mention’ it, at [106] of the decision record. The member lacks any qualification or expertise to make that assertion.”
Consideration
Ground one complains that the Tribunal failed to apply the complementary protection criterion (s.36(2)(aa) of the Act) to the applicant’s claims. The particulars explain that the Tribunal failed to assess whether certain “treatment” experienced by the applicant accounted to “significant harm” for the purposes of s.36(2)(aa) of the Act.
This is said to be shown in three instances. One, the “freezing” of the applicant’s bank account. Two, the stoning of his house. Three, the receipt of threatening telephone calls from unknown persons.
The basis of the applicant’s complaint in ground one arises from the way, he says, the Tribunal considered these three matters, as against the complementary protection criterion.
The Tribunal’s relevant consideration was set out at [111] – [113] of its decision record (CB 270 to CB 271):
“Are there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Rwanda, there is a real risk that he will suffer significant harm?
[111] In their submission dated 6 June 2013 [the applicant’s] representatives submitted in the alternative that the complementary protection provisions were ‘surely engaged’. For the reasons given above, however, while I accept that the Rwandan authorities are aware of his relationship with General Nyamwasa, I do not consider that this relationship is a particularly close one. I do not accept that, as [the applicant] and his representatives have claimed, the Rwandan authorities have shown an interest in pursuing him as a result of this relationship after he was detained in March 2010. I do not accept that he is wanted in Rwanda nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Rwanda, there is a real risk that he will suffer significant harm as a result of his relationship with General Nyamwasa or his real or imputed political opinion opposed to the RPF.
[112] The general practitioner at the NSW Refugee Health Service said in his further letter dated 13 June 2013 referred to above that it would be extremely difficult for [the applicant] to access specialist health services for his medical conditions in Rwanda and that the standard of care would not be as high as in Australia. While I accept that the standard of medical care in Rwanda is not as good as it is in Australia, I do not accept that this in itself will bring [the applicant] within the complementary protection criterion. There is nothing in the information available to me to suggest that the Rwandan Government is acting in an arbitrary way to deprive people of medical care or that there is an intention on the part of the Rwandan Government to inflict pain or suffering on people by depriving them of medical care as would be required by the definition of ‘significant harm’.
[113] I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Rwanda, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Rwanda, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.”
[Emphasis in the original].
The applicant’s submission was that in relation to the three matters set out in the particulars, the Tribunal accepted that those events had occurred. In this light, therefore, it was necessary for the Tribunal to consider each of those matters as against the complementary protection criterion. Its failure to do so, demonstrates a failure to apply the complementary protection criterion to the entirety of the applicant’s claims to fear “significant” harm. It is the case, that in its relevant reasoning (as set out at [13] above), the Tribunal made no specific reference to any of these three matters.
In his submissions before the Court, the applicant stated that the basis of his fear was “persecution” because of his relationship with General N. The applicant emphasised that this was accepted by the Minister. As set out above, there is no dispute that this was the claimed basis for his fear of harm and the Tribunal accepted that the relationship had existed. However, the basis for the Tribunal’s conclusion was that the Tribunal found that he would not suffer harm for reason of this relationship. In this regard, it is the case that while past events may assist in informing the consideration as to the likelihood of future harm if the applicant were to return to his home country, the relevant test is one of foreseeability in the future.
That is also the case with the complementary protection criterion. The test for establishing a fear of significant harm is a forward looking test. That is, it is one of reasonable foreseeability. As with the Refugees Convention, past events can inform the consideration of the “real chance” of what would occur in the future. However they are not determinative of it (Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505).
The applicant attempted to explain his ground with reference to the claimed instances of past harm, that he now says the Tribunal accepted. That is the three instances in the particulars. These were relied upon now in contrast to other claims of past harm which the applicant says the Tribunal did not accept had occurred.
In relation to the freezing of his bank accounts, the applicant claimed that his accounts were frozen in May 2011, because, as the applicants (including his wife) claimed to have been told, the authorities suspected that his bank accounts were been used to help support General N and others who had been exiled. The applicant directed attention to the Tribunal’s finding at [94] (at CB 265), that the applicant’s accounts had been frozen. However, the Tribunal did not accept that he and his wife had been told that this was as a result of his relationship with General N.
The applicant’s submissions were that the Tribunal accepted he had suffered the “harmful event” that his account had been frozen, and that this is an “ongoing event”. The applicant referred the Court to evidence before the Tribunal, which was that recent inquiries with the applicant’s Bank in Rwanda had confirmed the accounts were still frozen (see CB 173).
In relation to the stoning of his house, the applicant referred to his claims before the Tribunal that this had occurred on two occasions, and that the police refused to help. The applicant said that he realised “the government” was “behind” the stoning.
The applicant referred to the Tribunal’s findings at [91] – [92] (CB 265). In particular ([92] at CB 265):
“…I accept that the police were aware of his relationship with General Nyamwasa and I accept that they may very well have alluded to the grenade attacks which were happening at the time in Kigali and other parts of Rwanda. However I do not accept that the authorities failed to protect [the applicant] and his family because of his relationship with General Nyamwasa…”
In short, the Tribunal accepted the claim that the stoning occurred and that the police failed to assist. It did not accept that the failure to assist was because of the relationship with General N.
In relation to the threatening telephone calls, the applicant referred to [107] of the Tribunal’s decision record (at CB 269). The applicant noted that the Tribunal accepted that the calls had occurred, and accepted the way that he said he dealt with the telephone calls.
In all, therefore, the argument was that the Tribunal dealt with each matter under the Refugees Convention, but not complementary protection.
In part, the Minister relied on authorities to argue that the Tribunal was entitled to rely on factual findings previously expressed in its decision record. That is, as part of its analysis as against the Refugees Convention criterion (see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 (“SZSGA”) at [56] and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 (“SZSHK”) at [32] – [34]). The Tribunal, therefore, did not have to separately, and expressly, address, in its complementary protection analysis, factual findings already made.
The applicant sought to distinguish the circumstances in the cases on which the Minister relied, with the circumstances in the current case. The applicant’s argument was that in both SZSGA and SZSHK, the relevant decision makers had rejected the respective factual bases for the claims made. In the current case, the Tribunal accepted the factual claims in relation to the three matters particularised at ground one.
The applicant argues that this circumstance was closer to what was found in two cases of the Federal Circuit Court of Australia (SZSNY v Minister for Immigration & Anor [2013] FCCA 1465 (“SZSNY”) and SZSFK v Minister for Immigration & Anor [2013] FCCA 7 (“SZSFK”)), and that the Court should now follow what was done in those cases.
The Minister’s response was to argue that the Tribunal was not required to consider, as against the complementary protection criterion, every factual claim made by the applicant. Rather, the Minister relies on what was relevantly said by the Full Court in SZSHK at [37]:
“We do not suggest there is a formula to assess whether the case put has sufficiently raised the relevant issue but relevant matters to be taken into account are whether or not the claim for complementary protection clearly arises from the materials and, where the claimant is represented by professional advisers, whether the advisers have articulated the case which is later said not to have been dealt with by the tribunal of fact. We do not accept the appellant’s submission that merely because material is put as giving rise to a claim on Refugees Convention grounds it automatically follows that that claim is required to be considered as a claim for complementary protection.”
The issue then, is to consider whether the claims, being the freezing of the accounts, the house stoning, and the threatening telephone calls, were expressly made, or clearly arose from, the materials before the Tribunal. In short, what was the claim in relation to the three matters, or claims to complementary protection, put forward by the applicant, and his representatives before the Tribunal, and were they articulated, or could they clearly be understood, in such a way as to oblige the Tribunal to consider them under the complementary protection criterion.
Before the Tribunal, the applicant’s claim to fear harm if he returned to Rwanda, both “serious” and “significant”, was said by him to arise from the Rwandan authorities’ perception of his connection (“adopted son”) with General N.
The applicant was represented by “professional advisers”. They made a number of written submissions on his behalf, and assisted with a Statutory Declaration, made by the applicant, in relation to his claims.
Their written submissions of 6 June 2013 (CB 122 to CB 133) made clear that the applicant’s claims “…for protection arise from his relationship with the former General of the Rwandan Army…” (CB 124.6). The complementary protection criterion became operational on 24 March 2012 (see Migration Amendment (Complementary Protection) Act 2011 (Cth)). The submissions were given to the Tribunal on 6 June 2013 (CB 122). While the submissions noted that Australia has protection obligations towards the applicant under both criteria at s.36(2) of the Act (see CB 124.4), the submissions only addressed Australia’s protection obligations under the Refugees Convention (see CB 132 to CB 133).
The references in the submissions, therefore, to the relationship with General N, and the matters of the freezing of the bank accounts (CB 131), were put in that context. There is no reference in the submissions to the stoning or the telephone calls. The submissions make reference to “illegal detention and torture” (CB 130) (matters which could come within s.36(2A) of the Act), but those are not related, in any way, to the three matters in the particulars at ground one. At its highest, the reference to complementary protection was (CB 133.6):
“…We submit that if [the applicant] is forced to return to Rwanda, that there is a real chance the government of Rwanda will persecute him. If no Refugee Convention reason is found to have been met, then the Complementary Protection provisions are surely engaged…”
The accompanying Statutory Declaration from the applicant, again, makes clear the basis of his claim to protection as being the relationship with General N ([12] at CB 134 and see also [171] at CB 151). The Statutory Declaration also made references to the freezing of the bank accounts ([125] at CB 144 to [132] at CB 145) and the stoning of the house ([118] at CB 143 to [124] at CB 144).
In all, the applicant’s claim to fear harm, if he were to return to Rwanda, was said by him to arise from his relationship with General N. His fear was that he would be killed or tortured. It may be accepted that this claim was, if not expressly made in relation to complementary protection, clearly arose from the circumstances presented, such that the Tribunal was obliged to consider it.
However, I agree with the Minister that the applicant made no claim to fear harm on return, by way of his house being stoned, or that his bank accounts would remain frozen, or even, that he would receive threatening phone calls. The material before the Tribunal supports the Minister’s submissions that those instances were advanced by the applicant as instances of past events that were part of his claimed motivation to leave Rwanda.
The Minister’s references, to various parts of the applicant’s expression of his claims, as relevant examples, provide the basis for this view:
1)In his protection visa application (CB 20):
“…Therefore, from the above trailing story of threats and harassment directed to me because of my relationship with the fugitive general from undoubtedly state agents, I think the next opportunity they can get their hands on me they will kill me. I have no doubt that once they see me again they will torture me before they kill me.”
2)In his Statutory Declaration of 5 June 2013 ([171] at CB 151, see also above at [34]):
“Why I fear returning to Rwanda
171. I fear returning to Rwanda, because I believe that the government of Rwanda knows of my close association with General Kayumba. I believe that my bank accounts were frozen, the incidents involving Fifi, General Tinka and Colonel Hodari, were all because of my relationship with the General. My fears grew even more after Sana told [the second applicant] and I that I was wanted in Rwanda. Many people who have even dared to support General Kayumba or who have voiced their opinion about his innocence have been imprisoned or killed. I fear that if I am forced to return to Rwanda given my close relationship with the General I will be killed by the government of Rwanda or its agents.”
[Emphasis in the original.]
In short, the applicant’s claim in relation to both the Refugees Convention, and complementary protection, was that he would be killed, or tortured, on return because of his relationship with General N. I agree with the Minister that in these circumstances, once the Tribunal came to the finding that there was not a real risk that the applicant would suffer significant harm as a result of his relationship with General N ([111] at CB 270 to CB 271), that was sufficient to deal with the applicant’s claim to fear harm, in the context of complementary protection.
The Minister submits that one of the instances relied on now in ground one can be said to come within the definition of “significant harm”, as explained in s.36(2A) of the Act, and as the relevant terms are defined in s.5 of the Act. Plainly, “torture”, and an “arbitrary deprivation” of his life, would come within the definition of “significant harm”. Whether these matters in the circumstances of this case, are such as to meet the definition of “significant harm”, is a matter for the Tribunal to decide, and not the Court. What is now relevant to the Court’s consideration is that the applicant’s claim was that the reason he would suffer in this way was because of the relationship with General N. In this context, the Tribunal found he would not be harmed for this reason. The Tribunal dealt with this in the complementary protection context. In all, ground one is not made out.
Ground two complains, in essence, that the Tribunal conflated, or failed to distinguish, between the two separate tests for “serious” and “significant” harm. The particulars rely on the three incidents referred to in relation to ground one, and on the claims made by the applicant, that he had been detained and questioned in March 2010, because of his relationship with General N.
I understood the distinction that the applicant sought to make between ground one above, and ground two, to be one of emphasis. In ground one, he asserts a failure to apply the correct test for complementary protection. In ground two, the assertion is that in attempting to comply with the correct test, the Tribunal, nonetheless, fell into error.
In essence, the complaint is that the Tribunal conflated the tests for the Refugees Convention criterion with that of the complementary protection criterion. This was explained as follows. The Tribunal had before it the applicant’s claims, in relation to the three instances of harm, as set out in ground one. The complaint is that the Tribunal simply transposed its findings that were made in the context of the consideration under the Refugees Convention, to the question of complementary protection. The findings in the Refugees Convention context were essentially to find no Convention nexus, and therefore, it was not appropriate to simply rely on, and apply these to, the different criteria for complementary protection.
The applicant relies on what was found in SZSFK to propose that this reveals jurisdictional error in the Tribunal’s decision (see SZSFK at [90] – [91]). The applicant submits that this is “persuasive” authority for this case (see also SZSMQ v Minister for Immigration & Anor [2013] FCCA 1768 and SZSNY).
It is not necessary to pursue this aspect of the applicant’s submissions. In my view, as set out below, the applicant’s assertions as to how the Tribunal reasoned and what the Tribunal, relevantly, found, is not made out.
The applicant says that in considering the Refugees Convention criterion, the Tribunal found that the bank accounts had been frozen by the authorities but that this had not been done for a Refugees Convention reason. In considering the complementary protection criterion, the Tribunal should have asked itself whether the freezing of the bank accounts came within the definition of “significant harm”.
As set above, the other two examples were the throwing of stones and the threatening phone calls. The Tribunal found that both sets of events had occurred. In these circumstances, it should have considered them separately under the complementary protection criterion.
It must be remembered that the applicant’s claim to fear harm on return to Rwanda was squarely said to arise from his relationship with General N. As set out above, the instances relied on by the applicant now, were not, on any fair reading of the applicant’s claims, as variously put, matters in respect of which he said he feared harm from the authorities on return. They were examples of instances of past harm, which he said flowed from the central premise of his claim to fear harm from the Rwandan authorities. That is, his relationship with General N.
Even if this was not the case (which I do not otherwise accept), in relation to the freezing of the accounts, the Tribunal did not find, as the applicant presses, that the accounts were frozen for a non-Convention reason. The Tribunal’s reasoning was far more nuanced.
The finding of fact made by the Tribunal was that it did not accept they had been “frozen” for the reasons given by the applicant. That is, his claimed relationship and activities on behalf of General N ([98] at CB 267):
“In their post-hearing submission [the applicant’s] representatives referred to the fact that the press report which they had produced said that the suspected terrorists who had been arrested in Kigali had planned to hold meetings to recruit more people and to augment finances to support their cause. They submitted that this demonstrated that the Rwandan Government had suspected that General Nyamwasa’s supporters were augmenting finances to support his cause. They submitted that the Rwandan Government had been on high alert for any financial support coming in or out of Rwanda suspected of being used to advance the General’s cause and that, given that the Tribunal accepted that the government had known of the relationship between [the applicants] and the General, it should accept that [the applicant’s] accounts had been frozen due to his association with the General. However the Rwandan authorities had always been aware of [the applicant’s] relationship with the General and if he had been using his bank accounts to support General Nyamwasa they would very easily have been able to detect this. I accept that, as [the applicant] himself said, there was no evidence that he had been sending financial support to General Nyamwasa and that he was not in fact doing so. There are obviously many reasons why [the applicant’s] bank accounts may have been frozen and it would be idle for me to speculate as to what the true reason might be. Having regard to the different accounts which [the applicant] has given I do not accept that he is telling the truth about what he was told in relation to freezing of his accounts and I do not accept that they were frozen because of his relationship with the General, because he was suspected of providing financial support to General Nyamwasa and his exiled partners (as he said in the statement accompanying his original application) or because he might have worked for General Nyamwasa (as he said in his further statement).”
[This was repeated at [108] (at CB 269).]
This finding of fact was absent any consideration of whether there was a Convention nexus, or non-Convention nexus, to the freezing of the accounts. The basis of the applicant’s claim to fear significant harm was that such harm would occur from the Rwandan government, if he were to return, because of his relationship with General N. Once the Tribunal found that the accounts were not frozen for reason of the relationship with General N, then the basis for the harm, said to be feared in relation to complementary protection, became baseless.
It is important to note that any plain reading of the Tribunal’s consideration of the complementary protection criterion (see in particular at [111] (at CB 270)), was focussed squarely on the claim to fear significant harm. That is, the feared conduct of the Rwandan authorities because of his relationship with General N.
In relation to the stone throwing, the Tribunal found, as set out at [21] above, that while it accepted that the Rwandan police knew of the relationship with General N, they did not fail to protect the applicant and his family because of that relationship. Nor that the Rwandan government was responsible for condoning the stone throwing, as had been claimed ([108] at CB 269). This again had no reference to any Refugees Convention nexus.
In relation to the threatening phone calls, on a fair reading, the Tribunal was doubtful that this had occurred. However, in its subsequent analysis it proceeded on the basis as “if” they had occurred. It understood the applicant’s claim to be that he received threatening phone calls from “unknown numbers”, with the callers saying they knew of his “plan” involving General N ([99] at CB 267).
The Tribunal found that the calls ceased when the applicant changed telephone numbers ([99] at CB 267). That finding is, in itself, not dependent on any Convention nexus, or non-Convention nexus, finding. That the Tribunal then went on at [99] (at CB 267), to find that the matter of the telephone calls did not constitute persecution invoking “serious harm”, as required by s.91R(1)(b) of the Act, was simply the subsequent consideration, and application, of that finding of fact to the Refugees Convention criterion (see also, similarly, at [107] at CB 269).
When the Tribunal came to consider the complementary protection criterion (at [111] – [113] at CB 270 to CB 271), it addressed the remaining core factual claim made by the applicant. Namely, his relationship with General N. Once the Tribunal found that the authorities did not have any ongoing interest, and therefore, interest in the foreseeable future, in the applicant, because of his relationship with General N, it was not necessary to separately consider each instance of past harm which he claimed had occurred because of this relationship.
It is to be emphasised that the Tribunal had found, variously, that the freezing of the bank accounts had not occurred for reason of his relationship with General N, the telephone calls had ceased, that the Rwandan Government did not condone the stone throwing, and police did not fail to protect the applicant. These were all factual findings made absent to any connection with the Refugees Convention. In all, ground two is not made out.
Ground three asserts that certain factual findings made by the Tribunal were irrational or unreasonable. The particulars direct attention to five such findings. The complaint is that in each of these instances there was no logical connection between the evidence before the Tribunal and the conclusion which it made.
There was a difference of view between the parties, in part, as to the applicable law. The Minister submitted that by focussing on certain findings, the applicant’s ground was misconceived, because to succeed on the basis of illogicality, or unreasonableness, the applicant is required to demonstrate that the Tribunal’s “decision” is illogical, or unreasonable. That is, that the instances, or findings, of which the applicant complains, were part of a larger number of findings, which provide a separate, and individual, basis for the Tribunal’s decision.
The Minister relied on Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 144 CLR 1 (“SZMDS”) at [78] per Heydon J and [130] – [131] per Crennan and Bell JJ, for the proposition that if reasonable minds could differ about the Tribunal’s reasoning, it could not be said to be illogical (see also SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [15] and [85]).
Where the parties differ is that the applicant says that the Minister’s position, as set out above, is the same argument that was rejected in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [150] – [151]) (“SZRKT”). That is, that a claim of illogicality is not only to be considered with reference to the “end result” (SZRKT at [150] – [151]). That is, the “ultimate decision” (SZRKT at [152] – [156]).
In the current circumstances, even proceeding on the basis of the applicant’s argument, ground three is not made out. That is because each of the matters relied upon by the applicant now, do not reveal illogicality, or unreasonableness.
Underpinning the applicant’s arguments before the Court, in relation to each of these claimed instances of illogicality, or unreasonableness, is the Tribunal’s disbelief of some, but not all, of the applicant’s evidence. Credit, as the applicant submits, was a crucial issue. For example, as is set out above, those matters which the Tribunal accepted had occurred (the freezing of the bank accounts, the stone throwing and the telephone calls), did not assist the applicant’s case, because of the Tribunal’s disbelief of the applicant’s evidence, as to the reasons for these events and the circumstances surrounding them. That is, that the authorities were interested in the applicant because of his relationship with General N.
In relation to the central issue in the applicant’s claim to fear harm (the claimed continuing interest of the Rwandan authorities in him because of his relationship with General N), the Tribunal found that the applicant and his wife (the second applicant) did not tell the truth (see [107] at CB 269).
The applicant’s submissions emphasised that this was not a case where the totality of the applicant’s factual assertions were found not to be true. Rather, the Tribunal found that the applicant, and his wife, were truthful in some parts, and not truthful in other parts.
The applicant submitted that the way the Tribunal reasoned adversely to his credit, in relation to some matters, was important because it adversely affected the balance between what the Tribunal accepted, and did not accept, and therefore informed its ultimate decision.
As a general proposition, the applicant submitted that, in relation to those matters where the applicant and his wife were not believed, the Tribunal saw inconsistencies that did not exist, or formed a view without any probative basis for it. This was described as revealing a lack of rational, logical, or reasonable connection to the evidence.
It is to be remembered that the applicant’s claim, sitting at the heart of the applicant’s claim to fear harm on return to Rwanda, was the relationship with General N. The submission was that the applicant gave evidence that his relationship with General N went beyond simply that of a “child soldier” and a commanding officer. The applicant had lost his family, and General N treated the applicant in a familial way, for example, he sent him to boarding school, and the applicant stayed at his house in school holidays.
As set out above, the applicant submitted that because the Tribunal accepted some of the applicant’s evidence and claims, this was not an adverse credibility case, in the sense that everything the applicant said about factual events was disbelieved.
Plainly, the Tribunal did accept some of the applicant’s factual assertions. However, the central, and key, part of his claim was that he feared harm from the Rwandan authorities, because of his relationship with General N. The Tribunal found, amongst other things, that it did not believe the relationship was a close relationship. Therefore, the authorities were not interested in the applicant for reason of the relationship with General N.
As against this background, before the Court, the applicant put forward the following instances to make good the central proposition of his ground. First, the reasoning relating to the Tribunal’s finding that while the applicant was General N’s adopted son, they were not close. The applicant says the Tribunal’s rejection of the claimed closeness of the relationship was arbitrary, and not based on probative material.
The Tribunal’s relevant reasoning is at [87] (at CB 263 to CB 264):
“A summary of the relevant law in relation to the assessment of credibility is at Attachment A. As I indicated in the course of the hearing before me I accept that [the applicant] is General Nyamwasa’s adopted son. His evidence in this regard is supported by his wife, Mr Rubingisa and Mr Mukombozi. However, as I indicated, I do not accept that [the applicant’s] relationship with the General is a close one. [The applicant’s] own evidence is that he has not spoken to the General at all since 2004. He has said that he attended the General’s mother’s funeral in January 2010 in Rwanda but that he did not speak to the General on this occasion. This contrasts with the evidence that Mr Mukombozi, for example, calls the General every fortnight. While I accept that, as referred to in Mr Rubingisa’s statement, the General is very cautious about communicating with anyone now, this cannot apply to the period when the General was Ambassador to India.”
In submissions, the applicant also referred to [78] of the Tribunal’s decision record (at CB 261 to CB 262):
“[The applicant’s] representative referred to Mr Rubingisa’s evidence that the General did not feel safe when communicating by email. I noted that I considered it relevant that [the applicant] and the General had not apparently spoken during the entire period for which the General had been Rwanda’s Ambassador to India, for example. [The applicant’s] representative asked if I accepted Mr Mukombozi’s evidence that the General had introduced [the applicant] to him as his son. I indicated that this was the evidence before me, that [the applicant] was the general’s adopted son, but that it appeared that in the Rwandan context this did not imply as close a relationship as it might in other contexts. I referred again to the fact that the Rwandan Government had been aware of [the applicant’s] connection with General Nyamwasa as early as March 2010 but that [the applicant’s] had remained in Rwanda until August 2011.”
[Emphasis added – see [75] below.]
The Tribunal was said to have fallen into error by setting itself up as the expert, or arbiter, of what was involved in an adoptive relationship in Rwanda, and how a Rwandan ambassador to India was expected to act. The applicant sought to draw an analogy with what was said by the Full Court in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) (per Kenny and Rares JJ) and Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577. In both cases the relevant Tribunal proceeded on its own view of what should constitute the relevant religious knowledge and belief.
The argument was that in the same way, and revelatory of the same error, the Tribunal set itself up as the arbiter, or expert, in relation to adoptive relationships in Rwanda, and Rwandan diplomatic customs in India.
It is important to note that, in relation to the Tribunal’s statement concerning the closeness of the adoptive relationship in the Rwandan context, this was not a finding made by the Tribunal. Rather, the impugned comment appears in the Tribunal’s account of what occurred at the hearing ([78] at CB 261 to CB 262 – see [72] above).
The applicant’s solicitors filed the affidavit of Joanne Jennifer Kinslor, solicitor, on 5 May 2014, annexing a transcript (“T”) of the Tribunal hearing. The applicant did not seek to read the affidavit. Leave was granted to the Minister to read the affidavit.
The Minister referred to T50 at lines 34-41:
“[The Tribunal]: That’s [the applicant’s] evidence, he is effectively his adopted son. But obviously that can mean different things, and in the Rwandan context it apparently does. I mean, he hasn’t introduced him to his wife, for example. In Australia if you had someone as your adopted son, you might expect the relationship to be much closer, but obviously that’s the case in Rwanda. I accept that, but the fact remains that the people who in the Rwandan authorities knew of the relationship back in March 2010 and [the applicant] remained then in Rwanda until August 2011. But perhaps if we leave it there then. Do you want to make some further submissions on that?”
I agree with the Minister that the Tribunal was seeking to draw an inference from the evidence that had been put before it. In essence, the Tribunal member put to the applicant’s advisor, based on the evidence (for example the applicant had not introduced General N to his wife), that it appeared the relationship in Rwanda meant different things to an adoptive relationship in Australia. There is no illogicality, or unreasonableness, in this statement. In any event, it was not made clear by the applicant before the Court where, specifically, this comment, at the hearing, became part of the Tribunal’s findings in the consideration of the applicant’s claims.
The applicant also complains about the Tribunal’s findings at [87] (at CB 263 to CB 264). The applicant claimed to have a close relationship with General N. The Tribunal found it was not close. In part, the Tribunal based this on the applicant’s own evidence that he had not spoken to General N since 2004, even when he attended the funeral of General N’s mother in 2010.
The Tribunal accepted that General N may have been cautious in speaking to the applicant in Rwanda. However, found that this could not have been the case when General N was the Rwandan ambassador to India from 2004 to 2010.
I agree with the Minister that there is no illogicality, irrationality, or unreasonableness in the Tribunal’s finding. I cannot see that the Tribunal fell into the error asserted. It is important to note again, and is obvious, that the applicant claimed to fear harm because of his relationship with General N. There was no claim that General N also feared harm because of his relationship with the applicant. Further, that the evidence from the applicant’s witnesses was that General N was cautious about “communicating with anyone now” (that is, as at 2013). The Tribunal was simply saying that, in that temporal context, caution could not have applied to the period when General N was in India.
Second, the applicant proposes that illogicality, irrationality or unreasonableness is also revealed in the Tribunal’s finding concerning the freezing of his bank accounts. The complaint appears to be that the Tribunal was in error in perceiving an inconsistency in the applicant’s statement as to when the accounts were frozen (with reference to [94] at CB 265 to [98] at CB 267), and also that it failed to take into account “all of the evidence”.
The applicant appears to base his complaint on the assertion that the Tribunal proceeded on the basis that only one person had told the applicant that the accounts had been frozen. Yet, he says the evidence before the Tribunal was that he was told various things about the freezing of the accounts, by different people (see for example the instances set out at [48] of the applicant’s written submissions).
The difficulty for the applicant is that the Tribunal did not appear to make any such finding. One, in its report of what occurred at the hearing, the Tribunal plainly recorded the applicant’s representative’s statement that the applicant, “claimed that he had been told different things, and that he could not recall exactly what everyone had said” ([81] at CB 262).
Two, the Tribunal’s relevant analysis and findings are set out at [94] (at CB 265) to [98] (at CB 267). It is important to note that the Tribunal’s analysis was that the applicant himself had given conflicting accounts.
The Tribunal referred to the applicant’s statement accompanying his protection visa application, in which he said that he had been told that the reason that the accounts were frozen was on “instruction” from the National Bank of Rwanda, and that it was a friend, who worked in a relevant government department, who told him that the reason for this was because of the suspicions that the accounts were being used to assist General N.
The Tribunal compared this with a subsequent statement that the applicant had prepared with the assistance of his representative, in which the applicant stated that his friend also worked for a particular bank who told him “they” were “freezing the accounts of people who might have worked for General N on instructions from above but that his friend had not said who from above” ([94] at CB 266). The Tribunal also referred to the applicant’s evidence at the hearing. It noted in this regard that he had not given any evidence that what he had variously stated earlier was consistent.
In my view, reasonable minds could differ about the applicant’s evidence. The applicant’s particular concerning the bank accounts does not support the assertion in the ground. It is important to also note, as the Minister submitted, that this particular finding was only one of a number of findings that the Tribunal made in rejecting the applicant’s claim, as to why his bank accounts were frozen (see [97] at CB 266 to [98] at CB 267). These findings were not connected to, or arising from, the impugned finding. In that sense, it cannot be that the Tribunal’s conclusion as to the reason was illogical, or irrational, or unreasonable.
The third finding impugned by the applicant’s ground, was that the Tribunal did not accept the applicant’s claim that the disappearance of “Tunga”, the person who stamped the applicant’s passport when he left Rwanda in 2011, had any connection to the stamping of the passport (see [102] – [103] at CB 268).
The applicant’s submissions directed attention to the Tribunal’s finding that the applicant “…had changed his story to claim that he had in fact heard that Tunga had gone missing because he had stamped his passport without checking” (emphasis in the applicant’s written submissions at [53]).
The submission now is that there was no inconsistency in the applicant’s evidence, and that the applicant was seeking to provide more detail. That is, in his initial statement accompanying his protection visa application, the applicant had said he had come to know, from a friend of his wife, that Tunga, who had stamped his passport, had been “kidnapped” a week after his departure. In a subsequent Statutory Declaration, the applicant “remembered” a conversation between his wife and her friend. This account was that the friend said Tunga ([150] at CB 148):
“…went missing and that she had heard he did a mistake by stamping my passport without checking. I am not sure what she meant when she said, ‘without checking’, whether it meant that Tunga did not check my documents properly before stamping my passport”.
The applicant says that the substantive part of his evidence was that Tunga, who stamped his passport, had disappeared. Whether he made a mistake, or not, in stamping the passport, did not alter the matter of the “kidnapping”.
The complaint before the Court, therefore, is that there was no logical connection between the evidence and the inferences the Tribunal drew. The applicant’s submissions were that this cast a “contrived aspersion on the credibility” of the applicant (applicant’s written submissions at [58]).
It is important to note, as it is with the entirety of the applicant’s ground, that illogicality, irrationality, and unreasonableness are not made out, simply because there is a preferred view of what finding should have been made on the evidence. While the parties disagreed as to some aspect of the applicable law, I did not understand there to be any dispute that the relevant test was whether, in effect, minds may differ.
In that light, it was open for the Tribunal to make the finding it did. The applicant’s subsequent Statutory Declaration made clear that the reason Tunga had gone missing was connected (“because”) to the fact that he had stamped the applicant’s passport. The initial statement made no such express connection. It may be that a different Tribunal member may have taken a different view, but the view taken by the Tribunal was reasonably open to it, on what was before it.
I also note, that when the Tribunal put what it said was the inconsistency in the evidence to the applicant at the hearing, the applicant (whose representative was at the hearing (CB 215.5)) did not dispute this. He appeared to accept that there was an inconsistency, and sought to explain the inconsistency by saying (T39, lines 10 – l 42):
“[The Tribunal]: Yes, in your original application you said that you heard that he disappeared, but you didn’t say that you knew. You said that a friend of your wife called Claire knew him.
[The applicant]: Yes, the reason why I didn’t mention it all, because as I said, I didn’t put much in my statement because I said this is a statement made by myself and I didn’t consult anyone. I didn’t have time just to record. I (indistinct) is sometimes I forgot something and they’re very important. So even on my life I forgot something that happened in life. This is a problem I’ve got after this happened to me. There is something with the things they have and (indistinct) but it doesn’t come really proper time I need them.
I may remember okay, but not right now. A lot of time, yes, I can’t remember. This is I think always a problem I’ve got, even for my first, keep remembering things that are really important, yes. So I’m sorry about that, but it’s not in here about - - -
[The Tribunal]: [The applicant], it’s not just a matter of just not recalling things, it’s a matter of the changes to the story. It’s not just that you say now that you knew Tunga, it’s also that you now say that Claire told your wife that she had heard that Tunga had made a mistake by stamping your passport without checking.
[The applicant]: Mm.
[The Tribunal]: You didn’t say that in your original application. I think that’s pretty important too.
[The applicant]: Yes, as I said, this is done by myself.
[The Tribunal]: But you did it along with the help of your wife.
[The applicant]: I didn’t put everything (indistinct) I didn’t put everything I had because even now, if you tell me to – I can’t -there are some parts as well.”
Importantly, in written submissions made to the Tribunal after the hearing, the applicant’s representatives did not argue that there was no inconsistency. The representatives attempted to explain the inconsistency by proposing what the applicant had “meant” in his earlier statement (see CB 223.9 to CB 224.2). The Tribunal’s relevant analysis (at [102] – [103] at CB 268) is consistent with what was presented to it.
The applicant’s submissions to the Court also complained that the Tribunal’s finding that the applicant had previously (up to 2011) travelled out of Rwanda, was an irrelevant consideration to the question as to whether there was a connection between Tunga’s disappearance and the applicant’s “leaving Rwanda for Australia” (applicant’s written submissions at [59]).
The Tribunal’s reasoning is at [103] (at CB 268):
“In their post-hearing submission [the applicant’s] representatives submitted that when [the applicant] had said in the statement which they had prepared that he had known the person who had stamped his passport he had meant that he knew Tunga as a friend of his wife. As referred to above, they also referred to the letters from a general practitioner at the NSW Refugee Health Service saying that [the applicant] was experiencing symptoms of post-traumatic stress disorder and depression, that these conditions had impacted on his memory and that this would account for any inconsistencies and omissions in the statement accompanying [the applicant’s] original application. However, as they themselves noted, and as I put to [the applicant’s] in the course of the hearing before me, this is once again not a question of him not recalling things: he had already mentioned Tunga’s claimed disappearance in the statement accompanying his original application. As I put to him, I consider that he changed his story to claim that he had in fact heard that Tunga had gone missing because he had stamped his passport without checking. Given that [the applicant] had previously travelled in and out of the country without any problems - including when he flew to Burundi on 2 October 2010 - I do not accept that Tunga’s disappearance is connected in any way with the fact that he stamped [the applicant’s] passport when he left Rwanda on 30 August 2011.”
On a fair reading, the Tribunal’s reasoning was that in addition to the other relevant matters to which it had regard, and, in addition to the finding that the applicant had changed his story, the applicant’s ability to leave, and re-enter, Rwanda, without apparent difficulty, was a further element in its analysis that informed the finding that Tunga’s disappearance was not connected with the applicant. This, again, was reasonably open to the Tribunal and probative of the evidence before it. After all, the fact that the applicant was able to travel in, and out of, Rwanda without apparent difficulty, was an indication of whether the Rwandan authorities were interested in him.
Fourth, the applicant refers to the Tribunal’s finding that Rwandan agents, who attended the 2011 CHOGM in Perth, had not asked about the applicant, and had not been interested in his activities in Australia. The applicant refers to [104] of the Tribunal’s decision (at CB 268) to [105] (at CB 269). In short, the applicant argues that the Tribunal was in error in finding inconsistency in his relevant statements about this.
In his protection visa application, the applicant states (at CB 47.6):
“…To make things worse during the recent CHOGAM meeting , reliable information from close friends that attended the meeting, came to reveal to me that government agents were asking the Rwandans leaving here of my whereabouts and what I do here in Australia…”
[Errors in the original.]
In his Statutory Declaration, the applicant stated that a Mr Maboneza, who was part of the Rwandan delegation, had told his wife by phone that there were Rwandan “spies” in the delegation, and that
([155] – [156] at CB 149):
“[155] …people had been asking about my whereabouts although they knew that I was in Australia. When Moroccan started to talk to [the second application] about me, [the second applicant] put him on speaker so I could hear.
[156] The conversation [the second applicant] had with Moroccan confused me, because they already knew that I was in Australia but to ask additional questions about me and my whereabouts made me think that I was still of interest to the Rwandan government.”
The applicant says that the Tribunal found that in his original application he had said that the source for his information was from Rwandan protestors who had attended CHOGM, not Mr Maboneza.
The applicant’s written submissions conveniently provide a relatively short summary of the applicant’s complaint here (applicant’s written submissions at [63] – [65]):
“[63] At the hearing, the Tribunal questioned the Applicant and his wife about the difference in the statements. It found that the Applicant had thought that it was Mr Maboneza who had told his wife, and his wife thought that they were told by both the protestors and Mr Maboneza. The wife had also thought they had mentioned it in his original application. In post-hearing submissions the Applicant’s representatives had also said that there were two sources, both Mr Maboneza and the Rwandan protestors.
[64] The Tribunal found that there was no mention of Mr Maboneza in the original application. That finding was erroneous. The Applicant did mention both sources in his original application.
[65] At CB46par4, the Applicant states that the source was the Rwandan protestors. Then later in the statement, at CB47par3, he said that the source were close friends who attended the meeting. Mr Maboneza was a close friend that was able to attend the meeting by being a part of the Rwandan delegation. Therefore, his original application was consistent with his later statutory declaration. In his later statement he provided the detail about his friend Mr Maboneza.”
It is important to note that in his original statement accompanying his protection visa application the applicant also stated, and as acknowledged by the applicant’s submissions before the Court now, that (CB 46):
“…During the recent Commonwealth Heads of Government Meeting (CHOGAM) which took place in perth/Australia in October 2010, reliable information from Rwandese who were protesting against Kagame’s regime during meeting came to reveal me that government agents were asking them if they knew me, where I live and what I do in Australia…”
There was no mention by name of Mr Maboneza in the original statement. The applicant now seeks to argue that when he refers to “close friends that attended that meeting” (CB 47.7), he meant to include Mr Maboneza. The applicant says the Tribunal’s finding that Mr Maboneza was not mentioned in the protection visa application was, therefore, “erroneous”.
The Minister submits that the Tribunal’s finding was “literally” correct. I agree. The plain words of the two accounts speak for themselves. In any event, any plain, let alone fair, reading of the Tribunal’s reasoning for its disbelief that the telephone conversation took place, was that if the claimed telephone conversation with Mr Maboneza was “so important” to the applicant’s claims, and that if it had taken place, the applicant and his wife would not have forgotten it. Plainly, there was no mention of any telephone call in the initial written statement.
It should also be noted that this matter was discussed at the hearing with the Tribunal. The applicant’s submissions do not dispute the Tribunal’s understanding of the evidence of the applicant and his wife at the hearing ([105] at CB 269). It is clear that the Tribunal was not persuaded by the different explanations of what was originally meant in the initial written application.
In all, the Tribunal’s ultimate finding (at [106] at CB 269), as was the initial impugned finding ([104] at CB 268), were reasonably open to it. No illogicality, irrationality or unreasonableness is revealed.
The applicant also complains that the Tribunal lacked expertise, or qualifications, to find that the applicant and his wife would not have forgotten to mention the telephone call. This was said to have been found in circumstances where the Tribunal accepted the medical evidence of the applicant’s post-traumatic stress disorder, and the effect of this on his memory.
It is of note that there was no such evidence before the Tribunal about the applicant’s wife.
In relation to the applicant, the Tribunal noted the relevant medical evidence (see [85] at CB 263) and took it into account ([106] at CB 269). Although the applicants before the Court assert the Tribunal lacked expertise, the submissions have not satisfactorily explained the basis for the assertion that a relevant requirement is that the Tribunal have specific, presumably medical, qualifications or (medical) expertise. I agree with the Minister that there is no such requirement.
Having taken the medical evidence into account, the Tribunal reasoned that, notwithstanding any difficulty as to memory, the time of the drafting of the initial statement was so close to the claimed event, that any such important telephone call would have been fresh in his, and her, minds. This was reasonably open to the Tribunal on what was before it. This complaint does not assist the applicant in making out the central proposition of his ground
In all ground three is not made out.
Conclusion
The grounds of the application are not made out. It is appropriate to dismiss the application. I will make an order accordingly.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 27 February 2015
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