SZUHJ v Minister for Immigration

[2017] FCCA 2383

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUHJ v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2383

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal made incorrect findings of fact and findings for which there was no evidence.

Legislation:

Migration Act 1958, ss.36, 422B, 423, 424A, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v SZMOK (2009) 247 FCR 404
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559

Applicant: SZUHJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1197 of 2014

Judgment of: Judge Cameron

Hearing dates: 30 August 2016, 31 August 2017

Date of Last Submission: 31 August 2017

Delivered at: Sydney

Delivered on: 29 September 2017

REPRESENTATION

Solicitor for the Applicant: Mr H. Ford

Solicitors for the Respondents: Mr M. Glavac and Ms E. Cheesman of Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1197 of 2014

SZUHJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Zimbabwe who arrived in Australia on 6 December 2011 on a tourist visa.  On 5 March 2012 he lodged an application for a protection visa with the Department of Immigration and Border Protection, alleging that he feared persecution in Zimbabwe because of his ethnicity and political opinion.  On 25 June 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

Protection visa application

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for protection.  As summarised by the Tribunal, initially the applicant relevantly made the following claims in a statement attached to his protection visa application:

   a)he is of mixed race (“coloured”) and had faced discrimination in Zimbabwe as a result.  He finished studying in 2003 but was unable to obtain a job because of discrimination against him.  In 2010 he obtained a job with harsh conditions;

   b)on 2 March 2008, during the Zimbabwean elections, he was walking with a friend when his friend was stopped by an unknown man whom he believed was a member of the ZANU-PF Youth, the youth wing of the ruling party.  When he interrupted their conversation the ZANU-PF Youth member poked him in the chest, asked him if he was a “tough man” and then hit him in the face.  The man called out to other ZANU-PF Youth members who were nearby, one of whom tried to pull an axe out of his pocket.  He and his friend sought refuge in a sports bar and then went home after thirty minutes.  There was a police station nearby but as it was close to the elections it had been too risky for them to make a report;

   c)later that evening, on his way home with his cousin and some friends, he and his companions were approached by some men who asked them if they were forming a rally for the Movement for Democratic Change (“MDC”), the opposition party.  Because of his ethnicity he was regarded as an MDC supporter.  He and his companions were all hit with a “shambock” but as the only coloured person in the group he was asked if he thought being coloured made him special and he was hit more than the others;

   d)on 20 August 2009 he was at a nightclub with some friends when one of them got into an altercation with an undercover officer.  He intervened and a uniformed policeman punched him.  The policeman and his partner insulted him in the Shona language and told him he had no right to be in the country.  They threatened to charge him with resisting arrest, assaulting police and violent behaviour, suggested he bribe them, and then let him go after head butting and punching him; and

   e)he feared returning to Zimbabwe because of the campaign of violence there which had caused him to live as a hermit and in fear.

2. At an interview with the delegate the applicant claimed that although he held no particular political view, he had been imputed with one because his father was a member of the MDC.  However, he said that the attacks on him had not been linked to his father’s MDC membership.  He claimed that coloured people in Zimbabwe were assumed to be supporters of the MDC and his inability to speak Shona made communication with the police difficult.

Tribunal proceedings

1. The applicant attended a hearing before the Tribunal on 18 April 2013.  At the hearing he produced a letter from his father dated 12 April 2013.  The applicant’s father stated:

   a)from 1966 to 1980 he had been a member of the Rhodesian Defence Force.  He was a member of the MDC and was the secretary of his local residents association;

   b)several times between 1985 and 1990 the government had searched his house for weapons because he was a former soldier.  On those occasions he was taken to a holding area and beaten but released after a few days;

   c)on one occasion the police attended his house at 2.30am and took the applicant away.  When he attended the police station he was told the applicant had not been charged.  The applicant was released after two days but after his release was beaten while on the street;

   d)in 1995 a group of ZANU-PF Youth members came to his home and took the applicant.  He was released after three days and was then beaten on the road; and

   e)he and the applicant had the same name and the army and police had mistaken his son for him and thought he had been in the army.

2. The applicant made the following further claims at the Tribunal hearing on 18 April 2013:

   a)his father was coloured and his mother was Ndebele.  His parents continued to live in the family home while his brother lived in another town in Zimbabwe and worked for an NGO.  His father openly supported the MDC and clashed with one of his neighbours who was a ZANU-PF supporter;

   b)he had put up an MDC poster in his room but had had no involvement with politics, had not attended any rallies and had not handed out any leaflets;

   c)in 2007 he attended an industrial training centre and in 2009 he obtained an apprenticeship with a government-owned entity.  While at work he had made statements in support of homosexual people which offended his ZANU-PF colleagues.  As a result he had difficulties obtaining a letter of support when he applied for his tourist visa to travel to Australia;

   d)on 17 December 2010 the police attended his home asking for him by name (which is the same as his father’s name).  His father was pushed aside and he (the applicant) was arrested and taken to a police station outside the city.  After two days he and three of his friends who were black and had also been arrested at their homes were accused of fraud, armed robbery and assault.  They were released on bail after three days.  The matter was investigated for a year but no decision was made and they heard nothing further about it; and

   e)he believed that he was arrested because his father was active in the community and was an MDC supporter.  He did not believe that he had been mistaken for his father because three of his friends were also arrested with him.

3. Following complaints from the applicant’s representatives, the Tribunal was reconstituted and the applicant was invited to attend a second hearing on 19 March 2014 before the Tribunal as reconstituted.  On 17 March 2014 the applicant provided a submission in which he also claimed that:

   a)he had been discriminated against and beaten while at school because he was coloured;

   b)one of his father’s friends was an MDC member of parliament;

   c)the event which he had previously said at the first Tribunal hearing had occurred on 17 December 2010 had in fact occurred on 11 December 2009.  He went on to say that he and a friend whose father had quit the police force were taken from their homes by the CID.  They were taken to a suburban police station and he was released on bail after four days.  His father told him that the police had made a mistake and had meant to arrest him (the father) instead; and

   d)during his apprenticeship he worked with former civil war veterans who were strong ZANU-PF supporters.  They had threatened him so he had had to change departments every six weeks.

4. The applicant made the following additional claims at the hearing before the reconstituted Tribunal:

   a)after leaving the Rhodesian Defence Force, his father worked for the council in their home city but had retired.  He was not sure if his father had attended MDC meetings and was also not sure if his siblings were MDC members.  His mother had died in 2013;

   b)Shona and Ndebele are official languages in Zimbabwe and Ndebele was the primary language in his home area.  However, it was a sign of disrespect to speak to the police or ZANU-PF members in Ndebele;

   c)he was arrested on 11 December 2009, not on 17 December 2010 as he had said at the first Tribunal hearing.  His friend was also arrested and they were beaten in the bush before being taken to a suburban police station.  The next day he, his friend and two other people he did not know were told that they had not yet been charged and that their case was being handled by the CID.  A few days later a police officer suggested that they agree to be charged with assault so they could be released on bail.  He and his friend agreed, signed statements and were released on bail;

   d)as a condition of his bail he reported to the police every day for a month but after that he did not hear anything further about the case.  He was not fingerprinted when he was arrested and was not asked to surrender his passport as a condition of his bail; and

   e)his main reason for travelling to Australia was to visit his two sisters who live here.  He had thought it was fine to leave the country because he had heard nothing further from the police.  He had had no problems leaving because he flew out of South Africa.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act.

2. The Tribunal accepted that until he introduced new evidence about his alleged arrest in December 2009, the applicant had provided consistent and credible evidence about the harm he had faced in Zimbabwe.  While it accepted his evidence about the discrimination he had faced, his father’s profile and earlier events which had occurred in 2008 and 2009, for the following reasons the Tribunal concluded that the applicant’s claims about his alleged arrest in December 2009 had been fabricated to bolster his refugee claims:

   a)the Tribunal noted that the applicant did not provide a valid explanation as to why his evidence about the arrest was not introduced at an earlier stage.  It did not accept the applicant’s explanations for failing to provide the evidence earlier;

   b)the Tribunal noted that there were inconsistencies in the applicant’s evidence concerning the alleged arrest, specifically:

   i)at the first Tribunal hearing he said that the police had taken him to a cell outside the city whereas at the second Tribunal hearing and in a later statement he said that he had been taken to a police station close to the city;

   ii)at the first Tribunal hearing he said that three of his friends were also arrested at their homes and charged with him and in a letter from his representative dated May 2013 the names of those friends were provided.  However, at the second Tribunal hearing he said that he had been charged with one friend only and that the other two people had been strangers to him; and

   iii)at the first Tribunal hearing he said that he had been charged with fraud, armed robbery and assault but at the second hearing he said that he had not been charged but that a police officer spoke to him on the third day of his detention and suggested that he accept a charge in order to be released so he said he had assaulted someone and was charged with assault.

   Taking into account the applicant’s evidence cumulatively, the Tribunal was not satisfied that the December 2009 events had taken place.  For that reason, it gave little weight to the applicant’s father’s letter which claimed the events had occurred.

3. The Tribunal did not accept that the applicant faced a real chance of serious harm or a real risk of significant harm because of his actual or imputed political opinion.  In that regard:

   a)the Tribunal noted that although the applicant supported the MDC, he had not taken part in any political groups or activities, said that he did not hold any political views and did not indicate that he would take part in any political activities in the future.  The Tribunal also did not accept that placing an MDC poster in his room would lead to any repercussions for the applicant given that it was in a private space and MDC posters were found all over the country;

   b)apart from the incident when the applicant was hit with a shambock, the Tribunal did not accept that the acts of violence which had been visited on him in the past had been directed at him because of his actual or imputed political opinion.  It found that the 2008 incident when he was hit by a ZANU-PF Youth member had been a case of random violence caused by an altercation and not by the applicant’s political opinion.  While accepting that later that night the applicant had been asked about forming an MDC rally, taunted for being coloured and beaten with a shambock because of his imputed political opinion, the Tribunal noted country information indicating that during the 2008 elections random violence had been instigated against anyone thought not to support ZANU-PF.  The Tribunal was therefore not satisfied that the applicant had been specifically selected or that the event had been premeditated;

   c)while accepting that the applicant had been insulted by a policeman in August 2009 and that he had had to bribe the policeman to avoid false accusations, the Tribunal did not accept that the incident had occurred because of the applicant’s actual or imputed political opinion.  It found that it had been a random act of violence and abuse of power which had a racist element to it;

   d)the Tribunal found that while it was possible that the local authorities in the applicant’s home city would believe he was an MDC supporter because he was his father’s son and a coloured person, it found that country information did not suggest that he would be subject to serious or significant harm.  The Tribunal referred to country information indicating that political violence in Zimbabwe had reduced significantly.  It also referred to country information indicating that although family members of activists faced harm, low profile MDC members and their family members faced low risks of harm.  The Tribunal did not accept that the applicant’s father was an activist and found that the evidence did not suggest that he was very active, noting that the applicant’s evidence was that he could not remember his father attending meetings or rallies and he did not suggest that his father had held any official position; and

   e)the Tribunal noted that notwithstanding the applicant’s father profile, his father had worked for the city council in the applicant’s home city for many years and continued to live in the same family home where the applicant had grown up.  It noted that the applicant’s brother lived and worked in Zimbabwe and that there was no evidence that he had faced any serious harm because of his association with their father.  The Tribunal also noted that the applicant had indicated that his main reason for applying for a visa to travel to Australia had been to visit his sisters, indicating that a fear of harm had not been his primary reason for leaving Zimbabwe.

4. The Tribunal also did not accept that the applicant would face serious or significant harm because of his mixed race.  In that connection:

   a)the Tribunal accepted that in 2008 the applicant was taunted for being coloured and hit with a shambock but, given information indicating that at that time random violence was instigated against anyone thought not to support ZANU-PF, the Tribunal did not accept that the applicant had been specifically selected, particularly as he and his friends had been randomly approached when walking home.  However, it did accept that the applicant might have been beaten more severely because he was coloured and that there had been a racist element to his interactions with a policeman in August 2009;

   b)the Tribunal accepted that the applicant might have been discriminated against at school and that he might not have been paid well in his job and faced some problems at work.  However, the Tribunal noted that the economic situation in Zimbabwe was poor and that even if the applicant had been discriminated against, he had been able to obtain employment in a country with high unemployment.  It noted that his father, who was also coloured, had had a long standing job with a city council, his brother had a job in the health sector in Zimbabwe and he and his siblings had all attended school, including at tertiary level for some of them;

   c)the Tribunal referred to some country information and accepted that the applicant might have been subjected to some violence with racist elements in the past but it found that those incidents had been isolated, random and not premediated.  It did not accept that he would face harm in the future; and

   d)the Tribunal accepted that the applicant had been subjected to some discrimination in employment in the past and that he might be subjected to more in the future.  It found that although country information did not reveal a serious problem with racism towards people of mixed race background, it was possible that there was some “silent prejudice”.  However, it was not satisfied that any harm the applicant would suffer would amount to serious harm, finding that random verbal harassment and mild forms of discrimination, although unpleasant, did not amount to serious harm.  It was satisfied that the applicant could work and live safely in his home city or elsewhere in Zimbabwe as a coloured person.

5. Finally, the Tribunal did not accept that the applicant would face harm as a result of his membership of a particular social group of non-Shona speakers, finding that the chance of any harm on that basis was remote and speculative.  That finding was based on a Department of Foreign Affairs and Trade report stating that it was not aware of any information that people, including mixed race people, who did not speak Shona were targeted by ZANU-PF for violence.  The Tribunal also noted information stating that Zimbabwe recognised all its indigenous languages as official languages.

Proceedings in this Court

1. The applicant’s application was made up of twenty-five paragraphs.  The first two were not allegations and so do not need to be discussed.  The other paragraphs were drawn in such a way and were of such total length that it is convenient to set out each allegation or group of allegations and deal with them before moving to the next allegation(s).

Paragraphs 3 and 4

1. In paras.3 and 4 of the application the applicant alleged:

   3.The Refugee Review Tribunal has made an error of law which goes to jurisdiction by failing to conduct the hearing in a manner which is fair and just. Subsection 422B(3) of the Migration Act 1958 requires the Tribunal to act in a way that is fair and just. The Tribunal was not fair and just because the Tribunal made findings where there was no evidence to base such a finding, and further, the Tribunal made decisions which were not logical or probative. The decisions were not supported by probative material.

   4.The decisions of the Tribunal were so unreasonable that no reasonable Tribunal could have made such a decision.

2. These allegations were not particularised and so lacked meaningful substance. This is particularly significant as the applicant appears to allege that the Tribunal’s hearing was not fair and just because its reasoning was flawed. Even if the latter were true, that would not prove the former. The reference to s.422B takes the matter nowhere as that section provides no substantive rights: Minister for Immigration & Citizenship v SZMOK (2009) 247 FCR 404 at 409 [15].

3. For these reasons, these allegations are not made out. 

4. To the extent that the allegations in these grounds may depend on the matters raised by other allegations made in the application, those issues will largely be addressed in the context of those other allegations.  However, in his submissions and address the applicant argued that the cornerstone of the Tribunal’s decision was its finding on his credibility.

Paragraphs 5 to 10

1. In paras.5-10 of the application the applicant alleged:

   5.At paragraph 73 of the Tribunal decision, the Tribunal has formed the opinion that the applicant’s evidence has been fabricated.  The reason why the Tribunal thinks that the evidence has been fabricated is because of the fact that the applicant chose to make new submissions to the Tribunal when the Tribunal conducted the hearing.  The fact that a submission is new does not of itself mean that the claim has been fabricated.  The fact that a claim is new is an irrelevant consideration when it comes to the question of whether the claim is fabricated or not.

   6.The applicant has every right to make new claims at the Tribunal hearing. Paragraph 423(1)(b) of the Migration Act 1958 entitles the applicant to make written submissions to the Tribunal. The provision does not preclude the applicant from making such new submissions, rather, the applicant has a statutory right to make a submission. The Tribunal is de novo and is there to hear all of the submissions of the applicant irrespective of when the submissions were made.

   7.Section 423 does not conclude that a submission is fabricated simply because the applicant chooses to make a new submission. The Tribunal has made an error of law in this regard. It has taken account of an irrelevant consideration. There is no evidence to base such a finding. The decision by the Tribunal that the claims have been fabricated is not logical or probative.

   8.At paragraph 75 of the decision, the Tribunal has concluded that because there is an apparent inconsistency in the story, therefore, the claims have been fabricated.  The applicant does not accept that there were in fact inconsistencies in the applicant’s story.

   9.Even if it is accepted that for one moment there are inconsistencies, the mere fact that there is an inconsistency does not of itself mean that the story has been fabricated.  If an applicant makes a claim which appears on its face to have [been] fabricated, for example, the applicant was walking down Smith St.  If the applicant was in fact walking down Brown St, the name of the street has nothing to do with whether the applicant was or was not the subject of persecution.  The question is whether the applicant was the subject of persecution or not.  The applicant may have been the subject or persecution despite the fact that the applicant may have made an error in the name of the street.

   10.In this case, the applicant clarified the apparent inconsistency.  It is the applicant’s contention that there is no inconsistency.  The existence of an apparent inconsistency does not of itself preclude the act of persecution.  The Tribunal has taken into account not an irrelevant consideration by relying on the apparent inconsistency to deny the claim.

2. In para.73 of the decision record, the Tribunal said:

   The Tribunal accepts that the applicant provided consistent and credible evidence, until the time when he introduced new evidence to the Tribunal about an incident in December 2009.  The Tribunal notes that there may in some cases be valid reasons for introducing new evidence, however in this case, the Tribunal has concluded reluctantly (as it accepts the evidence in relation to earlier events) that the new evidence was fabricated to bolster his refugee claim.  …

3. In paras.74 and 75 the Tribunal relevantly said that the applicant had not provided a “real valid explanation” for his late provision of the information in question.  It also pointed to particular inconsistences in the applicant’s earlier and later versions of events and to what it considered were his inadequate explanations for those inconsistencies.

4. The essence of the applicant’s arguments were:

   a)the fact that there were new claims does not mean that all of the claims had been fabricated;

   b)he was not required to explain why the new claims had not been made earlier;

   c)the Tribunal was, in effect, requiring him to present all of his claims before it would find in his favour, thereby imposing on him an impermissible burden of proof;

   d)as he had no obligation to put any evidence before the Tribunal, it was not open to the Tribunal to draw an adverse inference from the fact that he may not have done so;

   e)the Tribunal placed undue importance on the inconsistency in his evidence concerning the location of the police station to which he said he had been taken in December 2009; and

   f)the Tribunal placed undue importance on the inconsistency in his evidence concerning who he was with at the police station in December 2009 and what was said to him by the police while he was there.

5. Dealing with each of those contentions in turn:

   a)what the applicant says is not necessarily correct.  It is a matter for the Tribunal, as the finder of fact, to determine the likely veracity of the allegations made to it.  That a factual claim was not made at the first opportunity may indicate that it is a recent invention.  Whether such a finding is appropriate is a matter for the finder of fact, in this case the Tribunal.  In this case, the applicant failed to raise until a late stage matters which, the Tribunal believed, were of sufficient importance that they would have been raised much earlier had they been true.  That conclusion was not illogical or unreasonable in the relevant sense:  Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at 648 [131];

   b)in a strict sense this contention is true but it ignores the practical reality that the Tribunal must be satisfied that an applicant meets the criteria for the visa he or she seeks and that such satisfaction is less likely to be reached if there are unexplained or poorly justified amendments to an applicant’s account of events;

   c)strictly speaking the Tribunal required nothing of the applicant.  The Tribunal’s conclusion that it was not satisfied that he met the criteria for the grant of a protection visa was not the product of any failure by him to present his case in a particular way or to satisfy a procedural requirement.  Relevantly, the Tribunal concluded that the applicant’s explanations for not having mentioned the 2009 incident until the review stage were not persuasive given the importance which his particular claim to fear harm because he was his father’s son had to his wider claim to be entitled to a protection visa;

   d)the Tribunal did not draw an adverse inference from the fact that the applicant had failed to provide what it considered to be an adequate explanation for the applicant’s late mention of the December 2009 incident.  Although it observed that such an explanation had not been provided, what it found was that the explanations which had been provided were not persuasive.  This was no more than orthodox fact finding by the Tribunal;

   e)the weight to be attributed to evidence was a matter for the Tribunal.  As long as the reasoning in question was not unreasonable or illogical in the relevant sense, the fact that a view of the evidence different from that taken by the Tribunal might be available is of no importance and does not mean that the Tribunal’s decision is affected by jurisdictional error.  The applicant has not persuaded me that the Tribunal’s reliance on this discrepancy as part of the basis for its conclusion that he had fabricated the December 2009 incident was unreasonable or illogical.  In my view it was quite open to the Tribunal; and

   f)the comments made in (e) above also apply to this sub-paragraph.

Paragraph 11

1. In para.11 of the application the applicant alleged:

   11.The respondent may choose to rely on case law which allows a Tribunal to make findings about the credibility of an applicant.  The Tribunal has however abused its power in this regard.  The Tribunal is now using the ability to make findings about ones credibility to avoid all of the rules of administrative law.  The Respondent is of the opinion that it is acceptable to take irrelevant considerations into account when making a finding about an applicant’s credibility.  Further it is acceptable to make findings about a person’s credibility when there is no evidence to base such finding.  The rules of administrative law are supposed to apply to a decision by the Tribunal about a person’s credibility.  Then [sic] Tribunal has made errors of law when it has applied the test as to an applicant’s credibility.

2. This was no more than a complaint about fact finding and failed to identify any jurisdictional error committed by the Tribunal.

Paragraph 12

1. In para.12 of the application the applicant alleged:

   12.At paragraph 76 the Tribunal has expressed the opinion that the December 2009 event did not take place.  As indicated above, the mere fact that a claim is new does not of itself mean that a claim is fabricated.  The applicant has every right to make new claims.  There is no evidence for the finding of the Tribunal that the December 2009 event did not take place.

2. Contrary to this allegation, there was evidence to support the finding in question.  The evidence on which the Tribunal relied to conclude that the December 2009 incident had been fabricated was set out in paras.74 and 75 of its reasons.  In brief, it was that the applicant had not made the claim at an early point and that there were important discrepancies between the version of the event given to the Tribunal on the first occasion and the one given to the Tribunal on the second occasion. 

Paragraph 13

1. In para.13 of the application the applicant alleged:

   13.At paragraph 81 the Tribunal is of the opinion that because the applicant does not hold a political view therefore the applicant was not the subject of persecution.  The Tribunal has taken into account an irrelevant consideration.  In Zimbabwe persecution is not dependent on whether one is or is not the holder of a political opinion. Individuals walk down the street and … asked whether they are a supporter of the ruling ZANU PF party.  If one is not a supporter of the ZANU PF party, one is attacked.  Even if one has no political opinion, one is still the subject of persecution because one is not the member of the ZANU PF party.  Holding or not holding a political opinion is an irrelevant consideration when it comes to the question of whether one is the subject of persecution.  The Tribunal should be asking the fundamental question, namely whether the applicant was or was not the subject of persecution.  The Tribunal cannot conclude that the applicant was not the subject of political persecution because of the fact that the applicant did not hold a political opinion.

2. The applicant submitted in relation to this allegation that the Tribunal appeared, incorrectly he said, to believe that one must be a member of the MDC before one would be persecuted in Zimbabwe and then went on to explain why he said such a view was incorrect, submitting that individuals in Zimbabwe are targeted because they are not members of the ruling ZANU-PF party.  It was not made clear that evidence of that sort going beyond the country information referred to above at [12(b)] and quoted below at [44] had been provided to the Tribunal, and, if it had been, where it was located in the material before the Court.  Nor was it apparent that the applicant had made such a claim to the Tribunal, indeed in addresses the applicant said that he had not, or that the availability of such a claim was sufficiently apparent on the materials before the Tribunal that the Tribunal had been obliged to consider it without the applicant having expressly raised it:  NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1.

3. In any event, what the Tribunal relevantly said in para.81 of its reasons was:

   … the applicant has supported MDC but has not taken part in any political groups or activities, has stated that he does not hold particular political views, and has not indicated he would take part in any political activities in the future.  Hence, the chance of him being harmed for his actual political opinion is remote.  The Tribunal does not accept that putting up an MDC poster in his room would lead to any repercussions given that the poster is in his private space and MDC posters are found all over the country.

   The applicant has misinterpreted what the Tribunal said, which concerned his actual political opinion rather than what might be imputed to him by others as his opinion.  What the Tribunal said was that the applicant’s political engagement was slight and so the chance he would be persecuted for his political views was similarly slight.  The matter which the applicant has raised in this allegation was not relevant to that reasoning and so no jurisdictional error has been made out in relation to it.

4. In his address the applicant argued that there had been no evidence for the Tribunal’s finding that he would not face repercussions for having put up an MDC poster in his bedroom.  The evidence to which the Tribunal referred, quoted above, was that the poster was in the applicant’s private space, and by implication not generally visible to strangers, and was, in any event, a commonplace in Zimbabwe.  The conclusion in question was the product of ordinary logic being applied to that evidence.

Paragraph 14

1. In para.14 of the application the applicant alleged:

   14.The Tribunal has made further errors at paragraph 82.  The Tribunal has concluded that the applicant was the subject of violence, but that this violence was not because of his political views.  That is, the violence was perpetrated against the applicant for other non-political reasons.  The Tribunal must be able to point to some evidence upon which to base that finding.  The Tribunal cannot make such a claim without any evidence upon which to base that claim. There is no evidence at all to justify such a finding. The Tribunal has acted unlawfully by making such a decision.

2. In his written submissions the applicant referred to para.82 of the Tribunal’s reasons, saying:

   The entire paragraph 82 is irrelevant.  There is absolutely no evidence for any of the findings in paragraph 82 by the Tribunal.  How does the Tribunal know that the acts of violence were not politically motivated?

3. What the Tribunal had relevantly said was:

   Secondly, while some acts of violence have occurred to him in the past (referred to in more detail below), the Tribunal does not accept that these have been directed at the applicant for reasons of his actual political opinion, whether as a member of MDC or as someone who opposed the government because he was not a member of ZANU-PF.  Nor were these acts of violence directed at him because of his imputed political opinion, with the exception of the incident when he was hit by a shambock, and that event was random and not premeditated.

4. The applicant has misunderstood para.82.  That paragraph simply expressed a conclusion based on a discussion of the evidence which followed in paras.83, 84, 85 and 87 of its reasons, summarised above at [12(b)] and [12(c)].The matters referred to in paras.83, 84, 85 and 87 of its reasons were sufficient to support the conclusion expressed in para.82. 

Paragraph 15

1. In para.15 of the application the applicant alleged:

   15.At paragraph 83 and at other paragraphs, the Tribunal has described the acts of violence as being ‘random’.  If the Tribunal is going to describe the acts of violence as being random, then the Tribunal needs to be able to point to some evidence upon which to base its findings.  There is no evidence before the Tribunal to suggest that the acts were random.  The applicant does not accept that there [sic] acts of violence were in fact random.  In the opinion of the applicant, the acts of violence were premeditated.

2. In para.83 of its reasons the Tribunal said:

   The Tribunal has accepted that in 2008 a man talking to his friend randomly hit him and taunted him for being tough.  Following this, the perpetrator called over some ZANU-PF youths, one of whom took out an axe so that the applicant and his friend had to run away.  The Tribunal notes that this was random violence caused by an altercation and not caused by the applicant’s political opinion.

3. These conclusions were based on the applicant’s evidence summarised above at [4(b)].  That material provided a sufficient basis for the Tribunal to conclude that the violence in question had been random and unrelated to the applicant’s political opinion. 

4. In relation to the unparticularized “other paragraphs” referred to in this allegation, reference should be made to [44]-[46] and [48]-[50] below.

Paragraph 16

1. In para.16 of the application the applicant alleged:

   16.Even if it accepted for one moment that the acts of violence were random, the mere fact that the acts of violence were random does not of itself mean that the acts of violence were not politically motivated.  One can still be the subject of political persecution even though the acts of violence were random.  The randomness of the persecution is an irrelevant consideration and is further evidence of the unlawfulness of the Tribunal decision.

2. The point about acts of violence being random is that they are unrelated to a person’s characteristics and so have no Convention nexus.  It is the motivation for harmful conduct which can potentially engage Australia’s obligations under the Convention.  If harmful conduct is not taken for one of the reasons referred to in article 1A of the Convention then the Convention is not engaged.  Consequently the possibility that conduct is random and thus unfocussed is very relevant to the Convention test.

Paragraph 17

1. In para.17 of the application the applicant alleged:

   17.At paragraph 84 the Tribunal has made findings about the applicant’s colour.  There is no evidence at all to base such findings.

2. In para.84 of its reasons, the Tribunal relevantly said:

   The Tribunal has also accepted that on that night he was questioned about forming a rally for MDC, and taunted for being a coloured, as well as being hit by a shambock.  The Tribunal accepts that this violence may have been based on imputed political opinion.  Country sources indicate that in the 2008 elections there was random violence instigated against anyone thought to not support ZANU-PF.  The Tribunal is not satisfied however that the applicant was specifically selected as he and his friends were randomly approached while walking home.  The Tribunal also does accept that he may have received worse treatment because he was a coloured due to some discrimination in the country against coloured people.

1. The applicant submitted in that connection that:

   The Tribunal asserts that in its opinion the applicant was not singled out because of the fact that he is coloured.  The Tribunal has however no evidence for such a finding.  Once again, there has been no attempt by the Tribunal to examine the acts of violence, rather, the Tribunal has just baldly rejected the claim without providing any evidence in support of that finding.

2. First, the Tribunal did accept that the applicant “may have received worse treatment because he was a coloured due to some discrimination in the country against coloured people”.  Secondly, however, the principal issue was why the applicant and his friends were set upon in the first place.  The Tribunal’s finding that the applicant and his friends had been the subject of random rather than targeted violence was based on the applicant’s own account of what happened.  That evidence was sufficient to support the finding in question.

Paragraph 18

1. In para.18 of the application the applicant alleged:

   18.At paragraph 85 of the decision the Tribunal has once again made findings where there is no evidence upon which to base such a finding.

2. In para.85 of its decision record the Tribunal said:

   The Tribunal also accepts that in August 2009 he was out with friends when one got into an altercation with an undercover officer. The Tribunal accepts that the applicant went to calm the situation and was then insulted by a policeman for not having the right to be in the country.  The Tribunal accepts that the applicant paid the policeman to avoid false accusations.  Again based on the facts provided by the applicant, the Tribunal does not accept that this incident ocurred [sic] for reasons of his actual or imputed political opinion, rather it was a random act of violence and abuse of power, and where some racism was evident.

3. The applicant submitted in this connection:

   How does the Tribunal know that the incident in question did not occur because of the applicant’s actual or imputed political opinion?  The only evidence which was before the Tribunal was a statement by the applicant that the incident was politically based.  Instead the Tribunal rejects the evidence which was before the Tribunal has [sic] makes a finding which is not based on any evidence.

4. The answer to the question posed in the first sentence of that submission is that the applicant’s account of the event, summarised above at [4(d)], suggests no political element.  Rather, the circumstances suggest race-based antagonism on the part of the police officer in question.  Moreover, given that it was originally the applicant’s friend who got into an altercation with the policeman and that the applicant involved himself into the incident of his own accord, it is hardly surprising that the Tribunal found that the violence, vis à vis the applicant at least, had been random in nature.

Paragraph 19

1. In para.19 of the application the applicant alleged:

   19.At paragraph 86 the Tribunal is of the opinion that the December 2009 incident did not take place.  There is no evidence for such a finding.

2. In para.86 of its reasons the Tribunal said:

   The Tribunal has not accepted that the incident in December 2009 took place.

3. As recorded earlier at [24], the factual basis for that finding was set out in paras.74 and 75 of the Tribunal’s reasons and was sufficient to support it.

Paragraphs 20 and 21

1. In paras.20 and 21 of the application the applicant alleged:

   20.At paragraph 87 of the decision, the Tribunal has indicated that there is nothing in the applicant’s past to indicate that he was violently attacked.  The fact that the applicant was not attacked in the past is an irrelevant consideration.  The question is whether he [is] the subject of political persecution irrespective of when it occurred.  The fact that the applicant was not the subject of persecution in the past does not itself mean that he is now not the subject of persecution.  What happened in the past is an irrelevant consideration.

   21.Further, there is no evidence for the Tribunals finding that he was not violently attacked in the past.

2. The third sentence of the allegation made in para.20 of the application misstates the relevant test which is whether an applicant has a well-founded fear of future persecution for a Convention reason.  As to the remainder, what has happened in the past is indeed a useful matter to consider when calculating what might happen in the future:  Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 576.

3. Additionally, the allegation made in para.21 misrepresents what the Tribunal said in para.87 which was, relevantly:

   … there is nothing in the applicant’s past to indicate that he was violently attacked on a number of occasions because of actual or imputed political opinion.  There was one incident when he was attacked due to imputed political opinion, but this was a random event which was not premeditated.

   For that reason, it does not demonstrate a reason to set the Tribunal’s decision aside.

Paragraph 22

1. In para.22 of the application the applicant alleged:

   22.At paragraph 88, the Tribunal has relied upon country information.  While the Tribunal can have reference to country information, the Tribunal cannot rely solely on country information to base its decision.  Country information is by definition general in nature and does not deal specifically with the particular personal circumstances of the applicant.  The applicant could have been the subject of political persecution even though the country information states to the contrary.  The fact that country information states that persecution is unlikely does not necessarily mean that persecution did not occur.  The Tribunal needs to look at the evidence in support of the claim about persecution and place more weight on that evidence rather that placing great weight on general country information.

2. In para.88 of its reasons, the Tribunal relevantly said:

   The applicant has also submitted that he would be imputed with a political opinion because his father was an MDC member and involved in local community activities, and had a friend in the high ranks of MDC, and because he was coloured, therefore assumed to be on the side of whites.  While it is possible that local authorities in [his home town] would believe he was an MDC supporter because he was his father’s son or a coloured person, the current country information does not suggest that such a person would be subject to serious harm if he returned to Zimbabwe in the reasonably foreseeable future.

3. The applicant submitted that the Tribunal should not have relied solely on country information to reach the conclusion expressed in para.88. However, the choice of what information to rely on and the weight such information is to be given are matters for the Tribunal. The applicant also submitted that the country information in question should have been put to him for his comment but he did not address the fact that s.424A(3)(a) relieves the Tribunal of such an obligation. Importantly, however, the Tribunal discussed with the applicant the issues raised by the information, as recorded at paras.60-63 of its decision record.

4. The applicant further submitted in relation to this allegation that in reaching the conclusion expressed in para.88 of its decision record the Tribunal had “looked around for any possible evidence in order to bolster” that finding such that its consequential finding that he was not a credible witness manifested bias. An allegation of bias is a serious matter and should not have been advanced in this manner. All the applicant’s representative has pointed to in support of this grave contention is disagreement with the weight attributed by the Tribunal to certain evidence presumably coloured by his misunderstanding of the Tribunal’s natural justice obligations as affected by pt.4 of div.7 of the Act. The contention is not made out.

Paragraph 23

1. In para.23 of the application the applicant alleged:

   23.Even if country information states that political violence has decreased, this does not of itself mean that the applicant in this case was not the subject of political persecution.  The applicant could have been the subject of political persecution even though the country information states to the contrary.

2. This was another complaint about the Tribunal’s fact-finding which did not identify a jurisdictional error.

Paragraph 24

1. In para.24 of the application the applicant alleged:

   24.At paragraph 93 the Tribunal has concluded once again that the violence was random and further that the violence was not politically motivated.  The Tribunal has no evidence for either of these findings.

2. The Tribunal made no such findings in para.93 of its reasons, which were concerned with the applicant’s claim to fear harm on the ground of his ethnicity.  To the extent that reference to such matters was made in para.92 of the decision record, those matters have been addressed earlier in these reasons.

Paragraph 25

1. In para.25 of the application the applicant alleged:

   25.At paragraph 97 of the decision, the Tribunal has referred to the fact that the applicant had been educated.  Political persecution occurs irrespective of whether one is or is not educated.  The education of the applicant is an irrelevant consideration.  Furthermore, the Tribunal has once again relied on country information not [sic] reject the claim.  The country information is only general in nature and does not take into account the particular personal circumstances of the applicant.  The fact that the country information indicates that coloureds are not the subject of persecution does not necessarily mean that the applicant was not the subject of persecution.

2. Contrary to the implication in this ground of the application, the paragraph in question was not concerned with the applicant’s claim to fear persecution on political grounds.  Instead, the Tribunal was concerned in para.97 of its decision record with the possibility that the applicant might face race-based discrimination while living and seeking employment in Zimbabwe but concluded that although he might, such discrimination as he would encounter would, given his family history, not amount to serious harm in that he had been educated, his brother was in employment and his father owned his house. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  29 September 2017