FEDERAL COURT OF AUSTRALIA MZZLF v Minister for Immigration and Border Protection [2014] FCA 1305 Citation: MZZLF v Minister for Immigration and Border Protection [2014] FCA 1305 Appeal from: MZZLF v Minister for Immigration & Anor [2014] FCCA 1298 Parties: MZZLF v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: VID 299 of 2014 Judge: BROMBERG J Date of judgment: 27 November 2014 Catchwords: MIGRATION – appeal from dismissal of application for judicial review – whether Tribunal failed to consider a claim or part of a claim because it failed to reach a conclusion about the cause of the appellant's injuries – whether Tribunal failed to warn the appellant that it might not reach a conclusion about the appellant's injuries in the absence of supporting medical evidence – whether Tribunal failed to consider the appellant's "subjective state of mind" – whether Tribunal failed to set out "material findings of fact" – appeal dismissed. Legislation: Migration Act 1958 (Cth) ss 91R, 425, 430 Cases cited: MZZLF v Minister for Immigration & Anor [2014] FCCA 1298 Date of hearing: 27 November 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 33 Counsel for the Appellant: Mr R Sorensen Solicitor for the Appellant: Goz Chambers Lawyers Counsel for the First Respondent: Ms C Symons Solicitor for the First Respondent: Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 299 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: MZZLF Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BROMBERG J DATE OF ORDER: 27 November 2014 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 299 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: MZZLF Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BROMBERG J DATE: 27 November 2014 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Circuit Court of Australia published as MZZLF v Minister for Immigration & Anor [2014] FCCA 1298, in which the primary judge (the primary judge) dismissed the appellant's application for judicial review. The primary judge reviewed a decision of the Refugee Review Tribunal (Tribunal) which affirmed a decision of the delegate (the delegate) of the first respondent (the Minister) not to grant the appellant a Protection (Class XA) visa (the visa). 2 The appellant is a citizen of Ghana and of Akan ethnicity. He follows the Christian faith. He entered Australia on 5 August 2011 on a bridging visa. On 30 September 2011, the appellant applied for the visa. 3 In his visa application, the appellant claimed to fear persecution for the Convention grounds of political opinion and membership of a particular social group, namely the Mining Workers Union of Ghana (Union). The appellant made that claim on the following basis: • firstly, while in Ghana, he worked as a welder for the African Mining Service (AMS); • he was first posted at the "Tarkwa" site where within the space of one week, two workers were killed when the mine collapsed. The appellant reported the matter to the leader of the Union's branch. The appellant was transferred to the "Damani" site the next day; • at the Damani site, workers were dying from preventable causes. In one incident, a pillar collapsed and killed three workers. The appellant and his friend,Victor, made a written petition to the Union; • after submitting the petition, the appellant was transferred to another site, the "Chirano" site, and put in isolation and prevented from attending Union meetings; • at Chirano, he organised a Union protest. During the protest, more than 20 police officers arrived at the site and arrested seven workers (including the appellant); • in his initial statement in support of his visa application, the appellant claimed that following this protest, he was taken to the police station and chained against the wall for five days. The appellant claimed that his hands were swollen and infected and that he still has the scars today. Before the Tribunal, the appellant claimed to have been handcuffed and beaten, injured when dragged from a car, that he was pushed over, that he fell down while being beaten with batons and that he somersaulted; • he continued to meet secretly with the workers with whom he was arrested and was issued with a warning from the Union's President; • he started getting threatening messages that he would be killed if he made any attempt to make contact with overseas media without the approval of the Union; • the appellant and his friend were sent by AMS to Australia for welding training in August 2011; • the appellant fears that he will be killed upon his return as this has occurred in the past, most recently with the death of three workers from the same company in 2009. 4 In a decision dated 15 November 2011, the delegate refused to grant the appellant the visa. The delegate accepted that the appellant's scars were a result of being arrested and beaten up as a result of union activities, but rejected the appellant's application for reasons including the delegate's view that that incident did not amount to persecution within the meaning of the Migration Act 1958 (Cth) (Migration Act). 5 On 8 December 2011, the appellant applied to the Tribunal for a review of the delegate's decision. That application was heard on 31 May 2012 (first Tribunal hearing). The appellant was assisted in that proceeding by an interpreter and a migration agent. By a letter dated 20 June 2012, the Tribunal informed the appellant of its decision to affirm the delegate's decision to deny the appellant the visa (first Tribunal decision). 6 On 26 July 2012, the appellant applied to the Federal Magistrates Court (now known as the Federal Circuit Court) for judicial review of the first Tribunal decision. 7 On 29 November 2012, the Federal Magistrates Court ordered by consent that the first Tribunal decision be set aside and the matter be remitted to the Tribunal for reconsideration. Those orders arose due to a concession made by the Minister that the first Tribunal decision was affected by a jurisdictional error. That error was a failure by the Tribunal to invite the appellant to give evidence and present arguments in relation to a particular claim that he had made, in breach of the Tribunal's obligations under s 425 of the Migration Act. 8 On 20 February 2013 (second Tribunal hearing), and again on 2 April 2013 (third Tribunal hearing), the Tribunal heard the matter for a second time. The appellant was again represented by a migration agent and assisted by an interpreter. The reason that there were two further hearings was that towards the end of the second Tribunal hearing, the appellant's representative raised an issue about the accuracy of interpreting during the first Tribunal hearing (on 31 May 2012). The third Tribunal hearing was convened to address that matter. 9 On 17 April 2013, the Tribunal affirmed the delegate's decision not to grant the appellant the visa (second Tribunal decision). The Tribunal's decision to affirm the decision under review was significantly influenced by its assessment of the credibility of the appellant and in particular, by its identification of what it believed to be inconsistencies in the versions of evidence that the appellant had given. 10 On 22 May 2013, the appellant applied to the Federal Magistrates' Court for judicial review of the Tribunal's decision. On 13 May 2014, the primary judge heard that application. The appellant was again represented by a migration agent and assisted by an interpreter. On that same day, the primary judge dismissed the appellant's application. 11 On 3 June 2014, the appellant applied to this Court to appeal the decision of the primary judge. The Notice of Appeal set out five particularised "grounds" of appeal. Those grounds largely mirror the grounds for review that were before the primary judge. 12 This morning, Counsel for the appellant advised that the appellant abandoned his first and fourth grounds of appeal. Those grounds need not be further dealt with. 13 By the second ground, the appellant alleged that the Tribunal failed to identify to the appellant or invite him to comment on two "issues" said to be "major issues critical to the decision". Those issues related to the Tribunal's assessment of photographs provided by the appellant at the second Tribunal hearing in support of his claim to have suffered injuries as a result of being detained by police for five days following the protest at Chirano (the police detention). This ground was particularised in the Notice of Appeal as follows: (a) That the photographs produced by the Applicant in support of his claim that he was arrested, detained and tortured were not acceptable without medical report. (b) The Tribunal did not put the Applicant on notice that it lacked the necessary expertise to make finding (sic) that the injuries shown on the photographs could not be received in any other manner other than the manner claimed… 14 Those particulars were developed through the written submissions of the appellant's Counsel. As the appellant's counsel confirmed this morning, in essence, the ground was relied upon as raising two allegations. First, that the Tribunal failed to properly consider the appellant's claims regarding his injuries because the Tribunal failed to reach a conclusion as to whether the cause of the injuries were as alleged by the appellant. Secondly, that the Tribunal failed to warn the appellant that in the absence of corroborating medical evidence, the Tribunal may not conclude that the injuries evidenced by the photographs were caused by the appellant being beaten. 15 In order to deal with this ground, it is necessary to first set out the claim made by the appellant in relation to his injuries and to consider how that claim was dealt with by the Tribunal. In a statement accompanying his application for the visa, the appellant stated the following: As a result we decided to take matters into our own hands by organisation (sic) Union protests. The protest was organised by Victor and I. We were surprised that over thirty workers joined in the protests…During the protest, more than twenty police officers arrived at the sight (sic) and arrest seven workers including myself. We were taking (sic) to the police station and chained against the wall for five days. My hands were swollen and infected. I still have the marks today… 16 At the second Tribunal hearing, the appellant told the Tribunal that he was arrested by police, handcuffed and beaten (see at [69] of the second Tribunal decision). He said that he was also injured when he was dragged from a car. The Tribunal asked what weapons were used that caused the scars on his neck and back. Initially, the appellant said it was batons. He then said that he was pushed over and fell down while being beaten with batons and that he somersaulted. He said that he was chained to the wall inside the police cell. 17 The Tribunal advised the appellant that his overall credibility was an issue, including in respect to his alleged arrest and the manner in which he received the injuries on his wrists and body. The Tribunal advised the appellant that the scars, photos of which he had submitted, could have been received in a number of ways and that he could have been arrested for some other reason (see at [84]). 18 The Tribunal said that the scar on the appellant's wrist appeared to be the result of stitches, to which the appellant replied that he had never had surgery and that the scars were received during his police detention (see at [85]). 19 The Tribunal told the appellant that it had difficulty accepting that the appellant's scars were received from batons because the scars appeared to be from sharp objects. The appellant took off his top and showed his back, and showed his wrists and forearms. The scars appeared to the Tribunal to be the same as those visible in the photographs. The Tribunal said that the scars may have been received at some other time (see at [88]). 20 At the third Tribunal hearing, the Tribunal repeated that the Tribunal may not accept that the appellant was involved in any protests and disputes with mine management and it may also not accept that he received the scars in the manner that he described (see at [96]). 21 Under the heading "Findings and Reasons", in relation to the appellant's claim about his injuries sustained during the police detention, the Tribunal made the following findings: [153] There was some consistency in the claims relating to the applicant's detention. In his written statement and at both hearings, the applicant's evidence was that… [b]oth on the way to the police station and during the detention the applicant was physically abused, including being chained to the wall… [154] However, the applicant's evidence in relation to the timing of his detention was inconsistent… [the nature of that inconsistency was then explained]. [158] The applicant did not provide any medical evidence in support of his claims about the manner in which he received the injuries on his back, neck and wrist. The Tribunal does not possess the necessary expertise to make a finding that the injuries could not be received in the manner claimed, that is, either when a person is being beaten with batons or when he or she falls over. However, the scars could have been inflicted in a variety of ways, for a myriad reasons (sic) and at any time before the applicant came to Australia. Based on the inconsistences in the applicant's evidence, the Tribunal does not accept that the applicant was ever detained or arrested, assaulted, injured or threatened by the police, the authorities, AMS or anybody else in connection with his employment… 22 In my view, the appellant's contentions in respect to this ground of appeal are based on a misconception of what the Tribunal did. 23 It is clear from the Tribunal's decision that even if it had formed the view that the appellant's injuries were caused by having been beaten with batons and pushed over, it would not have been satisfied that those injuries were received or inflicted on the appellant during his detention by police. That was because a number of inconsistences in the appellant's evidence led the Tribunal to the view that it was not satisfied that the appellant had been detained or assaulted by police at all. 24 In essence, what the Tribunal did at [158] was assume, favourably to the appellant, that the nature of his injuries was consistent with the appellant having been beaten with batons and pushed over. However, the Tribunal went on to conclude that based on the inconsistences in the appellant's evidence, it did not accept that the appellant was ever detained, arrested, assaulted, threatened or injured by the police. It was therefore not necessary to the Tribunal's ultimate conclusion for the Tribunal to have had the benefit of medical evidence which may have conclusively attributed the injuries to the type of assault claimed. There was no error in the Tribunal not making a definitive finding that the appellant's injuries were consistent with the type of assault he claimed, let alone a failure to consider the claim to which that issue related. Nor was it necessary for the Tribunal, in those circumstances, to have warned the appellant that in the absence of corroborating medical evidence, it may not make a definitive conclusion as to the cause of his injuries. 25 Although the primary judge (at [17]-[30]) came to the conclusion that there was no jurisdictional error for different reasons to mine, there is no error in that conclusion and this ground of appeal must therefore fail. I should add that my view may have been different if the injuries sustained by the appellant were of a kind which, by their nature, made the infliction of those injuries highly probative of whether or not the appellant had been detained and assaulted by police. No such contention was made, including as to the scars on the appellant's hands said to be the result of the appellant being chained for five days. 26 The third ground of appeal contended that the Tribunal failed to consider the appellant's subjective state of mind and as such misconstrued and misapplied the definition of "refugee" and "persecution" in s 91R of the Migration Act. 27 The appellant's submissions suggested that, by this ground, the appellant was contending that the Tribunal failed to deal with whether the appellant had a reasonable fear of persecution as a union activist because other union activists had been subjected to detention and abuse. The appellant contented that the Tribunal, having accepted that union activists in Ghana had been the subject of physical detention, abuse and dismissals, including for raising occupational health and safety issues, failed to "address the subjective impact on the Appellant of the treatment of other union activists in the mining industry in Ghana". 28 That ground is also misconceived. While the Tribunal referred to reports of union activists in Ghana being targeted for their activities (at [111]-[120]), and found (at [165]) that there was "widespread use of violence against employees", that does not help the appellant because the ultimate finding of the Tribunal was that the appellant was not a union activist. The Tribunal made findings (at [144]; [148]; [158]; [170] and [171]) in respect of the appellant's claims to be a union activist generally and to have engaged in specific industrial activity. The Tribunal disbelieved that the appellant had been a union activist or engaged in any such activity. 29 The Tribunal concluded (at [174]) that "no person or organisation in Ghana is seeking to harm the applicant and therefore he does not have a well-founded fear of persecution for any reason". In coming to that conclusion, the Tribunal clearly had in mind the appellant's claim that he had been subjected to harm by reason of his industrial activities including his engagement in whistle-blower and protest activities. While the Tribunal came to the view that there was country information supportive of the possibility that persons involved in such activity would be subjected to violence, the Tribunal was entitled to come to the view that the appellant's fear of persecution was not well-founded because the appellant had not been involved in any industrial activity of the kind which may result in the appellant being harmed should he be returned to Ghana. 30 The primary judge dealt with and dismissed this ground at [31]-[32] of his reasons. While I might disagree with how the primary judge dealt with this ground, I have come to the same conclusion that no jurisdictional error has been established. This ground of appeal must also be rejected. 31 The fifth and final ground of appeal pressed by the appellant was that the Tribunal failed to set out its findings on a "material question of fact", namely whether the objective evidence as to the appellant's scarring constituted a sufficient basis for concluding that the appellant had been beaten by police. That failure by the Tribunal was said to be a breach of s 430 of the Migration Act and a jurisdictional error. 32 By this ground, as Counsel for the appellant conceded, the appellant was essentially seeking to re-agitate the contentions raised by ground two – that is, that the Tribunal should have but failed to conclude whether the injuries were sustained in the way that the appellant alleged. In that regard, what I have said already in respect to ground two explains why this ground should also be rejected. The primary judge adopted a similar approach at [40]-[41] of his reasons. 33 As I have rejected each of the appellant's grounds of appeal, the appeal must be dismissed with costs. I will make orders to that effect. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 2 December 2014