SZAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 291

FEDERAL COURT OF AUSTRALIA

SZAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 291 MIGRATION - appeal from judgment of Federal Magistrate - visa - protection visa – claimed fear of persecution on basis of race and political opinion - RRT affirmed decision not to grant protection visa - claim RRT took irrelevant consideration into account - RRT misdirected itself in focusing on the Angolan government's current food policy - failed to consider essential component of claim - consideration one of the "integers" of the RRT's decision - constructive failure to exercise jurisdiction - error of law - claim of "no evidence" for RRT finding - finding of ineffectiveness of UNITA Renovada - not necessary for RRT to set out all details of country information relied on - procedural fairness - alleged failure to put information to the appellant - no duty on RRT to disclose reasoning process - matter for RRT to assess evidence before it - appeal allowed Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 cited Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 referred to SZAFJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1311 OF 2003 TAMBERLIN J SYDNEY 19 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1311 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZAFJ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 19 MARCH 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The judgment of the Federal Magistrate is set aside. 3. The decision of the Refugee Review Tribunal is set aside. 4. The matter is remitted to the Refugee Review Tribunal for decision in accordance with law. 5. The respondent is to pay the appellant's costs of the appeal and of the hearing before the Magistrate. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1311 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZAFJ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 19 MARCH 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of a Federal Magistrate ("the Magistrate"), delivered on 19 August 2003, which dismissed the appellant's application for review of a decision of the Refugee Review Tribunal ("the RRT"), made on 31 December 2002. The RRT had affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse the appellant a protection visa. 2 The grounds set out in the notice of appeal are formulated as follows (with the particulars omitted): "(1) His Honour erred in finding that although the Tribunal took the present food policy of the Angolan government into account, this was not an irrelevant consideration because this related to a question which was not an integer of the Tribunal's decision). … (2) His Honour erred in rejecting the Appellant's ground of review that the Tribunal's finding about the status of UNITA Renovada, the anti-ceasefire faction of UNITA, was made on no evidence. … (3) His Honour erred in finding that even if the Tribunal had denied the Appellant procedural fairness in failing to put to him information in relation to UNITA Renovada, the Appellant was required to provide evidence indicating what he would have done if it had disclosed the relevant country information. … (4) His Honour erred in failing to find that the Tribunal had denied the Appellant procedural fairness. The Tribunal left the Appellant in the dark that a number of matters were issues of concern to it and proceeded to draw inferences which were not natural and obvious inferences from the material which the Appellant provided and of which the Appellant was made aware by the Tribunal. As a result the Appellant did not have a reasonable opportunity to answer the case against him."

BACKGROUND 3 The appellant is an ethnic Bakongo and a citizen of Angola, who claims fear of persecution in Angola on the grounds of political opinion and race. 4 The appellant was born in Angola in 1972 at the beginning of that country's long civil war. He studied in Zaire (formerly the Belgian Congo) and is fluent in French. In 1991 he was an accountancy student in Luanda, Angola, where he lived until 1994. 5 The appellant claims that his late father joined the National Union for the Total Independence of Angola ("UNITA") rebels in 1992. He said his sister was murdered by government troops in the family home because she was wearing a pro-UNITA T-shirt. He said his brother was conscripted to the government armed forces in 1993 and never heard of again. 6 The appellant claims that in 1994 he was captured by UNITA soldiers during a journey north from Luanda, and press-ganged into a UNITA guerrilla unit working in the jungle. He claimed that his father, a UNITA sergeant, had been killed by a superior UNITA officer on 10 August 2001, for refusing to take part in a UNITA operation. He said that the same officer, whom he named, also threatened a similar fate for him, and seriously beat him on one occasion for being late for meetings. 7 The appellant claims that he was held captive until 2001, when the UNITA superiors evacuated the camp, taking what remained of their resources and leaving their captive labourers, such as the appellant, to the mercy of the army. He claims that he and other UNITA captives were taken to a military hospital in Luanda, and that in the course of his convalescence he was accused of having written letters on behalf of UNITA. He says that in fact he was exploited by his captors for his fluency in French, and was made to write letters to UNITA contacts in Zaire asking for food for UNITA. In his application for review of the delegate's decision by the RRT, he stated: "The Department of Immigration decision is wrong because I am an Angolan citizen called [name]. I fear persecution from the government a [sic]rebels on the basis of an imputed political opinion." 8 The appellant's claim for protection rests on the submission that the Angolan government had before it evidence of his having assisted UNITA in the past. He claimed to have been taken to a government prison and asked by government officials to lead them to the jungle to assist them in locating and fighting the rebels. They wanted him to take them to his camp. He said that upon return to the military hospital, he escaped and left Angola. He said he had a friend who worked for "UNITA Renovada", the faction that broke away from UNITA when it made a truce with government forces. UNITA Renovada opposed the cease-fire in April 2002. The appellant claimed that he was able to obtain a passport due to his having given a fellow UNITA captive his ID number. He claimed that he gave this passport to his father's friend, who then filled it with false stamps, visas and endorsements. He submitted this passport for perusal by the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") and by the RRT. The passport was issued on 10 January 2001, and identifies the appellant by what he claims is his real name and origin, although he says there is a discrepancy as to his true date of birth. The passport shows a number of stamps and permits permitting travel in March, April and other months in 2001, when the appellant claims he was still in UNITA captivity. Two pages are missing from the passport. 9 The appellant claims that he travelled to France in October 2001, entering on a visa issued by Portugal, although that visa does not appear in the passport. He claims that he did not apply for protection in France because he would have been forced to go to Portugal to have his asylum case processed. He says that he did not want to go to Portugal because Bakongo people have problems in that country. The appellant claims that he then bought a false passport in France. He gave no indication as to how he could afford this. He travelled to Australia via Hong Kong. The French passport was not submitted with the appellant's application to the Department or the RRT. 10 The Ministerial delegate dismissed the appellant's application and focused on the cruelty the appellant is alleged to have suffered while a captive of UNITA. This was dismissed by the delegate as "private persecution", other than persecution for Convention-related reasons.

reasoning of the rrT 11 The RRT accepted that the appellant was an Angolan national and that he was a UNITA sympathiser who was abducted and exploited by UNITA guerrillas for several years after 1994. The RRT also accepted that the appellant's sister and brother were killed as claimed during the civil war which ended with the cease-fire in April 2002. The RRT accepted the appellant's description of his abandonment by the guerrillas, but did not accept that this happened in late 2001 because the stamps on the passport, which the RRT considered to be genuine, were inconsistent with that statement. The RRT considered that the appellant's evidence about what happened after his abandonment by the UNITA guerrillas up to the moment of his departure from Angola lacked credibility. It was accepted that the appellant would have been regarded with distrust by soldiers of the government forces at the time of his surrender. However, even on the appellant's evidence, the RRT considered that in spite of this claimed atmosphere of distrust, the most recent place which the authorities had accommodated him was a hospital, from which he was able to remove himself. The RRT observed that he was not imprisoned and he was not facing charges or summary mistreatment. 12 The RRT was not satisfied that the authorities in fact had a case against him. There was no evidence of his letters to UNITA supporters in Zaire having fallen into Angolan government hands, and he never claimed to have acknowledged the actions of which he was accused. He was never placed under arrest or treated like a traitor. 13 A key passage in the reasoning of the RRT is as follows: "In any event, much that is central to the Applicant's claim is now moot because, as independent reports show, events in Angola have rapidly and substantially moved on since he left that country, however much it may still be the scene of widespread hardship. Very significantly, the April 2002 peace accord has ended the enmity between UNITA and the government and led to much co-operation between them in cleaning up after the damage of the war. What the Applicant claims he was accused of, i.e., writing letters in French, seeking food (not even arms) is now something that the government itself has embraced as a duty towards all those affected by the war, and notably including people who formerly worked and fought for UNITA or who lived under its control; also, like the Applicant, in his day, the Angolan government has called for international assistance as well." (Emphasis added) 14 The RRT accepted that the appellant wrote letters, but had reservations with his claims about his denunciation by fellow UNITA captives leading to persecution. The RRT did not accept that accusations that the appellant was an informer, even if heard by the Angolan government, would have bothered it for very long in view of the April 2002 cease-fire. The RRT concluded that the appellant got on with his life in and around Angola several months before he actually left that country for France and Australia. It concluded that he fabricated the account of his escape in late 2001 from UNITA and government custody because it would have been difficult for him to account for all those months of liberty. The RRT considered that the appellant was able to depart Angola legally. It stated that it had not overlooked the appellant's claim about the major who killed his father and threatened him with a similar fate, but that it considered it significant that the major and others in UNITA did not kill the appellant, but rather abandoned him. It relied on country information, which is information from sources other than the appellant, to the effect that UNITA was at peace with the government, although it noted that there was a rebel splinter faction, UNITA Renovada, that did not accept the terms of peace. The RRT considered that there was no evidence to suggest that the major, who killed the appellant's father, had not joined the peace. The RRT noted that while the major used his power to kill the appellant's father, the appellant was ultimately left alive. 15 For these reasons, the RRT was not satisfied that the appellant faced a real chance of Convention-related persecution in Angola, and concluded that he was therefore not a refugee.

REASONS FOR JUDGMENT OF the MAGISTRATE 16 The learned Magistrate dismissed the appellant's application for review of the RRT's decision. In relation to the claim that there was jurisdictional error on the part of the RRT by reason of it taking into account the irrelevant consideration of the present government policy with regard to obtaining food for people in Angola, he said: "18. The applicant argues that the present policy of the Angolan government with regard to the provision of food was not relevant to the question whether the government regarded the applicant as a person who had collaborated with UNITA during the war. The question for the Tribunal was whether the applicant would be persecuted for his collaboration, not whether the policies of UNITA and the present government coincided with regard to feeding people in Angola. I think there is much sense in this argument, but I do not consider the claim to which it related to be one of the integers of the decision. The Tribunal has come to the conclusion that UNITA sympathisers are no longer at risk of persecution if they returned to their homeland. All that a 'correct' finding on this point would have done would have been to confirm the Tribunal in its view that the applicant was a UNITA sympathiser. The Tribunal has never suggested otherwise. The respondent has argued that the relevant section could be read as indicating that the view of the government upon the applicant's return would be favourable to him because all he was doing for UNITA was what the government and UNITA were now doing for themselves. I think this is certainly arguable. I cannot accept this ground as one which would justify review." 17 The correctness of the above statement is challenged by the appellant on the basis that the Magistrate erred in concluding that the claim to which it related was not one of the integers of the decision. This expression "integers of the decision" is somewhat indeterminate, but I understand it to be an expression of a view that the present government policy as to the distribution of food was not essential to the ultimate decision. 18 The Magistrate rejected submissions by the appellant that there had been an error of law in that the RRT should have looked at the appellant's fear of UNITA as being a fear of the splinter group, UNITA Renovada, which had refused to co-operate in reunification and remained outside the peace process. 19 The Magistrate found that there was no procedural unfairness. This finding is challenged on appeal. He also found that there was no substance in the no evidence ground of appeal.

reasoning on appeal 20 The first ground of appeal relates to the RRT finding set out in paragraph 13 above, which is that writing letters seeking food was an activity that the government had embraced after the cease-fire as a duty to all those affected by the war, including people who formerly worked and fought for UNITA, or who lived under its control. The submission is that in directing attention to and concentrating on the present food policy, rather than the question of the perception by the government or UNITA Renovada of the appellant as a collaborator with UNITA, the RRT fell into error by not addressing the claim made: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [26], [27] and [95]. Failure to decide the matter which is put to the Court is a constructive failure to exercise jurisdiction. 21 In support of this submission, the appellant refers to the statement in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] that: "It may be that if the element of the appellant's claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element or integer of the claim put forward by her would not have been dealt with. In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed. However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim." 22 It is evident from the submission to the RRT by the solicitor for the appellant that the appellant's case was that he may be targeted by the government as a Bakongo or UNITA supporter, or by UNITA Renovada in renewed anti-government activity, and that because of such imputed political opinion he was in danger of persecution if returned to Angola. 23 This submission was appreciated by the RRT member. However, the RRT's reasons indicate that in making his decision the member was distracted from, and failed to properly address, the question raised as to the continued perception of the appellant by UNITA Renovada as a UNITA collaborator. The evidence indicates that the cease-fire was only adopted by the majority of the UNITA party, and that the splinter group of UNITA, UNITA Renovada, did not accept the cease-fire. 24 As his Honour found, there is "much sense" in the submission advanced by the appellant to the effect that the question for the RRT was whether the appellant would be persecuted for his perceived collaboration with UNITA. In my view, the Magistrate erred because he considered that the claim was not one of the integers of the RRT decision. The emphasis on the Angolan government's current food policy was clearly a matter to which the RRT attached great importance in reaching its conclusion. This is evident from the transcript of the RRT hearing and the RRT reasons, particularly the paragraph cited at [13] above. The reasons in that passage in the context of referring to the "central" elements of the appellant's claims, employs the expressions "very significantly" and "notably" in relation to the April 2002 peace accord, the food policy, and subsequent cooperation between the UNITA majority group and the government which reflect the importance attached to this consideration by the RRT. As a consequence, it failed to determine the claim actually made by the appellant that there was a real chance of persecution for an imputed political opinion by reason of his perceived co-operation with UNITA prior to his departure from Angola. 25 Accordingly, for these reasons, this appeal should be allowed. 26 A second ground that the appellant raised on appeal is that there was no evidence for the finding the RRT made about the status of the UNITA Renovada faction of UNITA. 27 The particular statement by the RRT that the appellant cites relied on is as follows: "The Tribunal has considered the numerous failed ceasefires in Angola throughout the decades of civil war in that country. It can see no reason to assume that the latest is transitory, due to the extent of the surrender into government protection and the fragmentation of UNITA resulting in an anti-ceasefire faction, 'Renovado' [sic] that is reportedly quite small, isolated and ineffective." (Emphasis added) 28 In particular, it is said that there was no evidence before the RRT to enable it to conclude that the UNITA Renovada faction, which did not accept the cease-fire, was ineffective. I do not accept this submission because it is clear from submissions to the RRT, and from the RRT reasons, that it was aware that there was a UNITA Renovada faction of UNITA which did not accept the cease-fire. In a post-hearing submission to the RRT on 2 October 2002 by the solicitor for the appellant, the "Renovada faction" is referred to with references to internet citations. The content of that material does not appear in the papers. It is not discussed in submissions. It is of significance that, in reaching its conclusion about the fragmentation of UNITA resulting in the splinter faction "Renovada" being established, and in referring to its small, isolated, and ineffective operations, the RRT member uses the expression "reportedly". This indicates to me that the member has probably examined country information or material to that effect contained in reports before it. 29 It is evident from the authorities that it is not necessary for the RRT to set out in its reasons all the details of country information on which it relies unless there is, for example, a specific reference which covers the particular applicant or class of applicants in some detail, and which is likely to be used against that person's case. That is not the present case. 30 In my view, it has not been shown that there was no evidence before the RRT on which it could conclude that UNITA Renovada was ineffective. 31 The third matter raised by the appellant concerns an alleged lack of procedural fairness in making the finding as to the ineffectiveness of UNITA Renovada. The error of law is said to be that the RRT member erred in not drawing to the attention of the appellant, prior to reaching its decision, the RRT's view that UNITA Renovada was a small, isolated and ineffective group. It is suggested that if this had been drawn to the attention of the appellant, then he "may" have been able to provide evidence to the contrary. It is said that the Magistrate erred in finding that if the RRT had denied the appellant procedural fairness by failing to put such information forward, the appellant was required to provide evidence indicating what evidence he would have provided. 32 In my view, this ground fails because there was no duty on the RRT member to disclose the view it ultimately formed in the decision making process as to the ineffectiveness of UNITA Renovada. The hearing was not one in which the RRT member was required to provide a draft of the ultimate reasoning process and decision. The reference to UNITA Renovada was made on behalf of the appellant in submissions by his solicitor, and in my view, it was not necessary for the RRT to inform the appellant of unformed conclusions or the reasoning process by which it ultimately reached its determination that UNITA Renovada was ineffective. In my view, it has not been established that there was any denial of procedural fairness on the ground of non-disclosure. 33 The other basis on which the denial of procedural fairness is advanced is that the RRT failed to put six matters to the appellant. This is framed in the Magistrate's judgment as follows: "26 The matters which the applicant says are in breach of this sub-section are: a) The Tribunal's failure to put to the applicant that it disbelieved his evidence that the accusation made by the other prisoner would not constitute evidence in the hands of the Angolan Government which would be used to bring a prosecution against him for collaborating with UNITA; b) The Tribunal failed to put to the applicant that the stamps and entry permits in his Angolan passport were genuine and therefore indicated he travelled in March and April 2001; c) The Tribunal failed to put to the applicant that it found troubling that two pages were missing from his Angolan passport, which had contained his visa to Portugal but made a finding to that affect; d) The Tribunal failed to put to the applicant that he did not apply for protection in Portugal or France or anywhere else in Europe because at that time protection outside Angola was not his priority but made a finding to that effect; e) The Tribunal failed to put to the applicant that he appeared to have a range of personal abilities, qualities and resources, in particular the financial ability to travel from Angola to France but made a finding to that effect, implying that he was not in need of protection;… f) The Tribunal failed to put to the applicant that he did not apply for protection in Portugal or France or anywhere else in Europe because at that time protection outside Angola was not his priority, but made a finding to that effect. g) The Tribunal failed to put to the applicant that there was no country information showing that the Bakongo or African people suffered discrimination in Portugal, but made a finding to that effect." (Emphasis added) 34 In my view there is no substance in this submission looking at each matter raised separately or considering them cumulatively. They are based on the premise that the RRT must put to the appellant its disbelief of his evidence. This is not required. It is solely a matter for the RRT to assess the relevance and importance of the evidence which is brought before it and this exercise is an integral part of the reasoning process and function of the decision-maker. To use the language of his Honour below, some of the RRT's findings may "crystallise" weeks after the hearing and may not be the subject of any concluded view or determination during the hearing. There is no requirement to put to an applicant unformed thoughts or views or call back an applicant after conclusions are formed for further investigation. On consideration of each of the six matters raised, the proper characterisation is that they are matters which bear on the evaluation of specific evidence before the RRT. It was not necessary to put any of these matters to the appellant in order to afford procedural fairness. The matters relate to the reasoning process of the RRT and not to the conduct of the hearing or the conduct of the member. The appellant had a full opportunity to present his case. There was no indication that the member had formed any view during the course of the hearing as to UNITA Renovada which made it incumbent, as a matter of procedural fairness, to raise a conclusion on that matter with the appellant.

CONCLUSION 35 The RRT erred in law in law in taking into account an irrelevant consideration and failing to take into account an essential claim by the appellant for entitlement to a protection visa. The correct test was not properly applied but was left unresolved because a wrong criterion was adopted, namely the food policy of the government. The learned Magistrate was in error in forming the view that the claim was not essential to the RRT's decision. The appeal is allowed with costs. The decision of the learned Magistrate is set aside. The respondent is to pay the appellant's costs of the hearing before the Magistrate. The decision of the RRT is set aside and the matter is remitted to the RRT for consideration in accordance with law.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate: Dated: 19 March 2004

Counsel for the Applicant: M Allars

Solicitor for the Applicant: Gilbert + Tobin

Counsel for the Respondent: T Reilly

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 8 March 2004

Date of Judgment: 19 March 2004