FEDERAL COURT OF AUSTRALIA

MZWYY v Minister for Immigration and Multicultural Affairs [2006] FCA 506

MIGRATION – appeal from Federal Magistrates Court – whether Refugee Review Tribunal was in error for failing to consider visa applicant’s subjective state of mind – whether Tribunal was required to consider a claim not expressly raised by applicant – whether claim was apparent on the face of country materials before the Tribunal – appeal dismissed

SCAM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 964 followed

WAHK v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 22 followed

Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 referred to

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 referred to

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) 144 FCR 1 discussed

SVTB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 104 cited

WAKZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1065 referred to

Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 referred to

MZWYY, MZWYZ AND MZWZA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

VID 155 OF 2006

KENNY J

8 MAY 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants file and serve any submissions as to costs before 4.30 pm on 12 May 2006.

3.                  The first respondent file and serve any submissions as to costs before 4.30 pm on 15 May 2006.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

1                     The first appellant is a Kenyan citizen who arrived in Australia with his wife and two children on 18 September 2001.  The other appellants rely on the claims of the first appellant who, for convenience, will be referred to as the appellant. On 28 September 2001 the appellant lodged an application for a protection visa.  A delegate of the first respondent refused the application on 29 January 2002.

2                     The Refugee Review Tribunal (“the RRT”) affirmed the decision of the delegate on 26 March 2004.  An application was made to the Federal Magistrates Court for review of the RRT’s decision.  The matter was subsequently remitted by consent to the RRT (differently constituted).  Before the RRT the appellant was represented by a migration advisor.  On 28 February 2005 the RRT again affirmed the decision of the delegate not to grant protection visas.  An application made in the Federal Magistrates Court seeking judicial review of the decision of the RRT was dismissed on 31 January 2006.  This is an appeal from the decision of the Federal Magistrates Court.

3                     The appellant’s claims before the RRT were based on alleged fear of persecution by Kenyan authorities due to his involvement in the Muugano wa Mageuzi (MwM) organisation or “Movement for Change”.  The RRT was satisfied that he was a victim of adverse police attention on this account in 2001 and that he and his family had left Kenya because of a well-founded fear of persecution at that time.  The RRT referred to the fact that, in December 2002, President Daniel Arap Moi lost power after a national election in Kenya when a new president was elected.  The RRT found that since then there had been substantial political change in Kenya and that former supporters of the MwM will not be seen or be treated adversely in the reasonably foreseeable future.  The RRT concluded that the appellant’s fear of persecution was not well-founded within the meaning of the Refugees Convention and affirmed the decision of the delegate.

4                     The principal issue for consideration before the learned Federal Magistrate was whether the RRT erred in law by not taking into consideration the appellant’s subjective state of mind when determining whether the appellant had a well-founded fear of persecution on his return to Kenya.  The Federal Magistrate found that the RRT had considered the relevant information, including submissions made for and on behalf of the appellant and available country information.  His Honour found that once the RRT was satisfied that there was no objective basis for a well-founded fear of persecution, it was not required to further consider the subjective fear of the appellant (following the approach in SCAM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 964 (“SCAM”)and WAHK v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 22 (“WAHK”)).  Accordingly, he dismissed the application.

5                     In a notice of appeal dated 20 February 2006 the appellant made various claims in relation to the Federal Magistrate’s decision, including that the Federal Magistrate erred in law by holding that the Tribunal was not bound to make “subjective consideration of the appellant’s state of mind” when determining whether the appellant’s fear of persecution was well founded.

Submissions

6                     In his written submissions, the appellant relied on a passage from the judgment of Gaudron J in Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 (“Miah”) at [62], where her Honour said as follows:

“For the purposes of this case, it is necessary to note three important matters with respect to the Convention definition of “refugee”. The first is that the Convention looks both to the position of the individual and to the conditions which pertain in the country of his or her nationality. More precisely, the question whether a person has a well-founded fear of persecution is one that has both subjective and objective elements and necessitates consideration of the mental and emotional state of the individual and, also, the objective facts relating to conditions in the country of his or her nationality.”

The approach taken in Miah is consistent with her Honour’s approach to the definition of “refugee” in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (“Chan”)at 415.  The appellant submitted that the majority of Mason CJ, Dawson, Toohey and McHugh JJ in Chan also established that the definition of refugee involves mixed subjective and objective elements.

7                     The appellant argued that the RRT wrongly failed to consider the subjective aspects of the appellant’s fear and directed its attention solely to the objective facts relating to the change in government in Kenya.  The appellant also maintained that the RRT failed to consider whether, even though the appellant may not be targeted for his involvement in MwM, he might simply be persecuted as a political activist.  The appellant argued that the RRT failed to consider that a political activist seeking change would reasonably be as fearful of persecution under the new regime as under the old.  At the hearing the appellant’s counsel also argued that the fact that the RRT found that the applicant had a well-founded fear at the time he left his Kenya affected the standard to be applied in assessing whether he had a well-founded fear at the time of the RRT’s decision.

8                     At the hearing, the appellant raised and focussed almost exclusively on the argument  that the RRT committed jurisdictional error by failing to consider whether, independent of the appellant’s status as a former member of MwM, the appellant was likely to face persecution in Kenya as a political activist.  In effect, this claim had three components.  First, the appellant suggested that, apart from his membership in MwM, he might face persecution as a former political activist generally.  Secondly, he argued that, given his prior political activity, he would be likely to engage in such activity in the future and would suffer persecution as a result.  Thirdly, the appellant raised the possibility that, if returned to Kenya, he would abstain from political activity because of the threat of persecution.  Referring to the facts and holding of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (“S395”) the appellant argued that this would itself be considered a form of persecution.

9                     Counsel for the appellant noted that, after the hearing before the RRT, the appellant’s advisor filed further submissions with the RRT.  These submissions included additional country information.  Most relevantly, the advisor submitted a report dated 18 February 2005 from the UN Office for the Coordination of Humanitarian Affairs that detailed continuing human rights abuses in Kenya after the fall of the Moi regime.  Counsel argued that, faced with this information, the RRT should have considered whether the appellant would be at risk of persecution as a former political activist and as someone who would be likely to engage in political activity if he were to return to Kenya.  Counsel also contended that the RRT had failed to have regard to this country information or any other such information relating to the situation in Kenya after the fall from power of Daniel Arap Moi.

10                  The appellant acknowledged that these claims had not been expressly raised before the RRT.  However, he argued that, under NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) 144 FCR 1 (“NABE”) per Black CJ, French and Selway JJ, the RRT might be required to consider a claim even though an applicant has not raised the claim explicitly.  He submitted that the country information before the RRT should have alerted the RRT to the possibility that the appellant might suffer persecution as a political activist.  Thus, in the appellant’s view, it committed jurisdictional error by failing to consider that possibility.

11                  The first respondent submitted that the RRT was not required to consider subjective factors once it had found that the appellant did not have an objective basis to fear persecution.  In the respondent’s submission,von Doussa J rejected an argument similar to that of the appellant in SCAM.  The respondent maintained that the view of Gaudron J in Chan, and therefore the appellant’s argument, was further disapproved by a Full Court of this Court in WAHK.  The first respondent submitted that an argument such as that now being put by the appellant had been rejected by the Full Court in SVTB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 104 (“SVTB”) at [16]-[21].  The first respondent maintained that there was no basis for formulating a different standard where it was found that the visa applicant had left his or her country of origin with a well-founded fear of persecution at that time.

12                  In response to the appellant’s argument at the hearing, the first respondent submitted that there had been ‘significant movement’ in the way the appellant put his case and that his present argument had not been raised before the Federal Magistrate.  The first respondent submitted that this ground was not found in the Amended Application or the Contentions of Fact and Law filed by him in the Federal Magistrates Court.

13                  Further, the first respondent contended that the appellant’s argument was without merit.  The respondent accepted that, in some circumstances, the RRT might be required to consider a claim that had not been expressly raised before it, but the respondent submitted that the RRT had not been obliged to do so in the present case.  The first respondent noted that the appellant had been legally represented before the RRT and that these representatives had filed submissions on his behalf after the RRT’s hearing.  The respondent cited the following passage from NABE (at [58]):

“It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 199 ALR 265 at 273 [19] per Cooper J.  The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal.  Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.”

The first respondent argued that the appellant’s new claims were not apparent on the face of the material before the RRT.  The first respondent submitted that a close review of the material before the RRT showed that the appellant clearly limited his claims to his past involvement in MwM and had not referred to activism generally or his activities if returned to Kenya.  The RRT was not required, so the respondent submitted, to be creative and the information before the RRT did not give rise to any such claim as that now made.  In the first respondent’s submission, the country information could not be said to raise such a new claim as it was not specific to the appellant and said nothing about the appellant’s future behaviour.  Accordingly, the RRT was not in error not to consider whether the appellant might be persecuted as a political activist generally.  Further, there was no basis for the appellant’s submission that this case raised considerations analogous to S395.

Consideration

14                  The RRT was not in error when if failed expressly to consider the appellant’s subjective state.  It is true that, if the applicant were to succeed, then the Tribunal had to be satisfied that he subjectively held a fear of persecution if returned to Kenya and that his fear was well-founded.  As the Federal Magistrate found, the Full Court decision in WAHK is contrary to the appellant’s claim that the RRT was required to consider subjective factors.  In WAHK, Lee and Tamberlin JJ said (at [12]-[14]) as follows (emphasis mine):

“Where the RRT has accepted that an applicant had a well-founded risk of persecution at the time of their departure, a question arises concerning the approach that the RRT should take, in view of that finding, at the time it makes its decision concerning whether that applicant would have a well-founded risk of persecution, if they were returned.  In [Chan], Gaudron J, (at 415), accepted that the correct approach to a submission as to changed circumstances is as follows:

"If an applicant relied on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of the subsequent changes in the country of nationality."

The above view was not shared by Gummow J, who, in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 659, said that the view of Gaudron J in Chan (quoted above) did not represent the view of the Court in Chan.  Gaudron J accepted that this observation was correct in the case of Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [69].  Her Honour considered that her approach was, nevertheless, correct.

The relevant question is whether, as at 29 May 2002, the objective facts establish that the appellant had a well-founded fear of persecution.  This is to be assessed on an objective basis, and not on the basis that the fear of a reasonable person in the position of the claimant would not be allayed by knowledge of subsequent changes in the country of nationality.  The reference to a "well-founded fear" is a reference to the objective factual position at that time.”

The majority’s approach is directly contrary to the position of the appellant in this case.  Consistently with WAHK, if the RRT is not satisfied, objectively speaking, that there was a real chance of persecution then it does not have to further consider an applicant’s subjective fear.  This is because, without a sufficient objective chance of persecution, the applicant cannot have a well-founded fear of persecution: see also WAKZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1065 at [46]-[49] and SVTB at [21]. 

15                  In this case the RRT found, based on independent country reports, that, at the time it came to make its decision, a former supporter of the MwM was not likely to suffer persecution in Kenya if he returned there.  Having made this finding, it followed that the appellant could not have a well-founded fear of persecution and the RRT did not need to consider the subjective aspects of his fear.

16                  Further, a finding that an applicant had a well-founded fear of persecution at the time of departure from his or her native land may lead to a conclusion that there is a real chance of persecution in the future in that country, but this fact does not alter the fundamental inquiry.  The answer to this inquiry will, in each case, depend on the particular circumstances as they are found by the fact-finder.  The fact that the RRT found that the applicant had a well-founded fear at the time he left Kenya does not, therefore, affect the standard to be applied in assessing whether or not he had a well-founded fear at the time of the RRT’s decision, although it was plainly a relevant circumstance that the RRT was obliged to, and did, consider.

17                  Further, I accept that, as the first respondent submitted, there has been ‘significant movement’ in the way the appellant put that part of his case concerning the current situation in Kenya and whether he would suffer persecution as an activist if returned there. It is, however, unnecessary to delve far into what was and was not argued before the Federal Magistrate, because I would reject the appellant’s submissions in any event.

18                  First, in its reasons, the RRT specifically referred to a number of country reports concerning the situation in the country after the fall of Arap Moi, including the report of the UN Office for the Coordination of Humanitarian Affairs of 18 February 2005.  Further, the RRT implicitly referred to this information when it commented that “in the written submissions provided on two occasions by the applicant’s advisor, he has not provided any independent Country Information … to support the applicant’s claims that previous members of [MwM] are currently being persecuted in Kenya”.  Accordingly, I reject the appellant’s submission that the RRT failed to have regard to the UN Office report and other information relating to the situation in Kenya after the fall from power of Daniel Arap Moi.

19                  Secondly, an examination of the material before the RRT makes manifest that the appellant clearly limited his claims to his past involvement in MwM. He did not refer to the position of other activists or liken his position to theirs, and he said nothing about his own activities or their curtailment if returned to Kenya.   There is no factual basis in this case that would support an approach analogous to that in S395.  Further, this is not a case in which it can be said that the RRT has failed to make a finding on “a substantial, clearly articulated argument relying upon established facts” such that there has been a failure to accord procedural fairness or constructive failure to exercise jurisdiction: see and contrast Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ.  This is because there was no such argument.  To adapt the language of the Full Court of this Court in NABE, this was not a case that obliged the RRT to consider the claim as it is now formulated by the appellant because the claim did not clearly arise from the material before the RRT: see NABE at [58] and [60]-[62]. 

20                  Accordingly, I reject the appellant’s claim that the RRT improperly failed to consider whether, independent of the appellant’s prior involvement in MwM, he might suffer persecution as an activist if he returned to Kenya.  This is because the appellant did not claim that he had been involved in any significant political activity other than his activities with the MwM and, fairly read, there was nothing in the material before the RRT that otherwise raised this new formulation for the RRT’s consideration. 

21                  For the foregoing reasons, I would dismiss the appeal with costs.

Associate:

Dated:              8 May 2006