AZAAG v Minister for Immigration & Anor [2009] FMCA 33 (23 January 2009)

Last Updated: 29 January 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AZAAG v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 33

MIGRATION – Judicial review of Refugee Review Tribunal decision affirming decision not to grant the applicant a protection visa – alleged jurisdictional error by the Tribunal in describing the relevant social group – application refused.

Migration Act 1958 (Cth), ss.474 & 476 Convention relating to the Status of Refugees 1951 Protocol relating to the Status of Refugees 1967

Craig v The State of South Australia [1995] HCA 58 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Applicant:

AZAAG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

ADG 69 of 2008

Judgment of:

Lindsay FM

Hearing date:

25 September 2008

Date of Last Submission:

25 September 2008

Delivered at:

Adelaide

Delivered on:

23 January 2009

REPRESENTATION

Counsel for the Applicant:

Dr Churches

Solicitors for the Applicant:

Bourne Lawyers

Counsel for the Respondents:

Mr D’Assumpcao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The Amended Application for Judicial Review filed on 24 July 2008 be refused.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE

ADG 69 of 2008

AZAAG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (“the Act”) seeking a review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 27 February 2008 which decision confirmed the decision of the delegate of the Minister not to grant the applicant a protection visa.
2. The applicant is a national of Ethiopia. He arrived in Australia on 22 July 2007 on a temporary resident visa sub-class 456. He applied for a protection visa on 1 August 2007.
3. He was born in Gondar, Ethiopia and is from the Amhara ethnic group. The central government of Ethiopia is principally constituted of persons from the Tigriam ethnic group.
4. The applicant claims that if he was to return to Ethiopia he would be arrested, detained and killed on the grounds of his political opinions and membership of an opposition party known as the Coalition for Unity and Democracy (“CUD”). The applicant has worked as a journalist since 1998. At the time of the 2005 Ethiopian elections he was working at a government radio station.
5. It is not controversial that following the 2005 election in Ethiopia the government undertook considerable repression of opposition groups. Many people were killed by security forces and many more were detained and tortured.
6. The applicant’s response to these circumstances was, some six months after the election, to resign from his job at the government radio station. As he put it in his statement attached to his visa application:
   • It was too difficult for me to practice real journalism in a government controlled media. So, as a professional journalist I decided to resign from my job rather than compromise my professional ethics for the sake of my survival.
7. Following his resignation, he continued to work as a journalist for private organisations and was a journalist with the Ethiopian Society of Obstetricians and Gynaecologists from January 2006 until the time of his departure from Ethiopia in July 2007. He travelled for purposes related to his employment to Canada in August 2006, to Tanzania in February 2007 and to Germany in June 2007.
8. He also says that following his resignation from the government radio station he began to involve himself with the CUD as a journalist. He attended and organised CUD meetings. His behaviour drew him to the attention of the authorities. He claimed that on 15 June 2007 he was arrested in the street by security officers. He was beaten and kicked and was detained for two days.
9. He left Ethiopia on 20 July 2007 for, he says, the ostensible reason of travel to Australia for a work-related conference. As noted above he arrived in Australia on 22 July 2007.
10. He left his wife in Ethiopia. He claimed to have spoken with her from Australia on 23 July 2007 and informed her of his plan to claim refugee status in Australia. He says that she told him at that time that security officers had searched their home following his departure and seized documents and other items relating to his CUD activities.
11. The Tribunal had before it his lengthy and clearly articulated statements provided with his application for a protection visa; a further provided detailed statement responding to the delegate’s determination at the time he filed his review with the Tribunal; and a third detailed statement provided by him. In addition, he gave oral evidence and presented argument at the hearing before the Tribunal. The Tribunal had regard to a significant amount of country information relating to political and civil conditions in Ethiopia, especially following the 2005 election.
12. When summarising the country information at CB 189, the Tribunal characterised the particular social group of which the applicant was a member for convention purposes as follows:
    • Based on the considerable information quoted above from various independent sources, the Tribunal accepts that “journalists who publish articles critical of the government and/or journalists working for the government who refuse to publish misinformation” in Ethiopia may comprise a particular social group cognisable by attributes and characteristics shared by the group which distinguish the group from society at large. The Tribunal notes that the information from independent sources indicates that journalists who have published articles critical of government or those who have refused to publish misinformation under government orders face persecution.
13. It rejected his claims on credibility grounds. I do not propose to set out in detail the reasons why the Tribunal came to the conclusion that the applicant was being untruthful as to certain matters and as to why it had doubts in relation to the truthfulness of other matters, but they were various and significant. The Tribunal did not accept that the applicant was a member of CUD or even that he had been involved in political activity in Ethiopia. It rejected his claim to have participated in covert journalistic activities for the CUD. It found that as a journalist working with a health organisation, he was of no interest to the Ethiopian authorities. It did not accept that he had kept material implicating him as a member of the CUD at his home or, consequently, that the authorities had found such material at his home after his departure. It found his travel in and out of the country to have been inconsistent with the experience of one who was of interest to the authorities; it rejected his account of his departure from Ethiopia involving as it did the claim of complicity by a government security agent.
14. The Tribunal’s decision constituted a comprehensive rejection of the fundamentals of the applicant’s claim for refugee status on the grounds of incredibility and implausibility.
15. Protection visas are granted to persons who satisfy the Minister that they are refugees to whom Australia owes obligations under the Convention and Protocol relating to the Status of Refugees. The delegate refused the application on 26 October 2007. The application to the Tribunal was filed on 23 November 2007 and the decision of the Tribunal affirming the decision of the delegate was, as noted above, handed down on 27 February 2008.
16. The decision of the Tribunal is a privative clause decision according to s.474 of the Act and is final and conclusive unless it can be demonstrated that it has been vitiated by jurisdictional error. Jurisdictional error is a concept best explained by the High Court decision of Craig v The State of South Australia [1995] HCA 58. In the context of applications under the Act it is best explained by the High Court decision of Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
17. There were two grounds argued in relation to jurisdictional error. Firstly, it was said that the Tribunal failed to correctly identify the relevant social group to which the applicant claimed to belong and secondly that it ignored relevant evidence on the questions of the “parameters” of that social group and the issue of whether the applicant was a member of the group. The two grounds are but aspects of the one argument, which was put with considerable clarity and succinctness by Dr Churches, on behalf of the applicant.
18. It is said that the Tribunal characterised the social group, membership of which was claimed by the applicant, in too narrow a way and in a way which inevitably resulted in the rejection of the applicant’s claim.
19. It was argued that, whereas the Tribunal has accepted that those journalists who publish articles critical of the government or refused to publish misinformation in Ethiopia constitute the relevant social group, the Tribunal has overlooked the need to include within the group persons who, like the applicant, had modified their journalist behaviour in the way claimed by the applicant, that is by resigning and then conducting himself in a way that is designed to avoid government repression and persecution.
20. Dr Churches was critical of that paragraph of the ‘Findings and Reasons’ which appears at the bottom of CB 189, immediately following the identification by the Tribunal of the relevant social group. In that paragraph the Tribunal says:
    • The applicant has claimed that he is persecuted as a professional journalist because he was unable to report freely. He has made no claims nor provided evidence that he has published articles critical of the government; or that he refused to publish misinformation under government directions while he was employed by a government controlled media outlet. On the basis of this evidence and the evidence that the applicant has been working for a non-government organisation reporting on public health issue, the Tribunal does not accept that the applicant faces a real chance of persecution as a journalist. The Tribunal therefore is not satisfied that he is a member of the particular social group as described above.
21. Any fair or rational identification of the social group, so the applicant submitted, would include journalists like himself who, even though they had not published articles critical of the government or overtly refused to publish misinformation pursuant to direction by the authorities, had learned to conduct their profession in a way that was designed to protect their safety and freedom. In other words, the social group should be taken to include those journalists who, for reasons of self-preservation, had learned to, as it were, keep their heads below the parapet.
22. In proceeding in this way, it was submitted that the Tribunal has asked the wrong question of itself as to the identification of the social group and this error is a jurisdictional one. Reliance was placed upon the well-known passages in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] - [84].
23. These submissions would have greater force if the Tribunal had not rejected almost in their entirety the applicant’s claims to have been a person whose conduct as a journalist was motivated or informed by political opinion relating to the advancement of the interests of the CUD. It is clear that the Tribunal took the view, on the basis of all of the material before it, that the applicant was a journalist whose conduct was a function of his professional obligations. It is not possible to read the Tribunal’s findings as including an acceptance of the reasons the applicant advances for his departure from the government radio station. It must be accepted, as Dr Churches argued, that the Tribunal does not expressly and specifically deal with the issue of the reasons advanced by the applicant for his resignation from the position at the government radio station following the 2005 elections but the Tribunal must be taken to have rejected that claim given the manifestly comprehensive rejection of the applicant’s claims in relation to political involvement. It is the kind of credit finding “at a higher level of generality” to which the High Court referred in Minister for Immigration & Multicultural Affairs v Yusuf (supra) at [91] per McHugh, Gummow and Hayne JJ, which must reasonably be taken to entail the more specific finding in relation to the resignation.
24. If the Tribunal had accepted the applicant’s alleged motivations for his resignation and had accepted even in part his claims as to his membership of the CUD and his journalistic work on behalf of that party after the 2005 elections in Ethiopia, then the question of the characterisation of the social group by the Tribunal as not including journalists who do not actively promote the opposition cause or who are recusant in relation to government attempts at misinformation tactics may have been of significance. But it is not possible in my view in the light of the comprehensive rejection of the applicant’s claims on credit grounds to see the alleged misdescription of the social group as sounding in any way which amounts to jurisdictional error.
25. It is not clear, in any event, that the Tribunal was describing the social group in a way that would exclude those journalists who, on account of their apprehensions as to political persecution, remain quiet and conduct their journalistic business with discretion. The Tribunal expressly notes the applicant’s claim of persecution as a journalist “because he was unable to report freely”. Furthermore, the distinction between a journalist who attains the status of being one who is persecuted on account of political opinion because he refuses to publish misinformation at the behest of the government and a journalist who in a general way avoids involvement in the publication of opposition material is a very fine one. It is difficult to see, even were the factual findings more favourable to the applicant, that a failure to distinguish between the two cases would amount to an error let alone to an error going to jurisdiction.
26. Of more significance to the Tribunal in the evaluation of the applicant’s claim is the view it plainly took that the applicant was a journalist whose work was neither explicitly involved in political activity or implicitly restrained on account of political activity. The Tribunal took the view that he was a non-politically motivated journalist.
27. Whilst the applicant, through his counsel, plainly eschewed any intention to invite this Court to review the Tribunal’s findings as to credit, in substance that is what this Court would be doing if it were to accede to the application. The alleged error of the Tribunal would only be a material one if this Court was to take a different view than the Tribunal did of the extent to which this applicant as a journalist was involved in political activity.
28. Nothing turns on the alleged improper formulation of the scope of the particular social group because the Tribunal did not accept the applicant’s claims of political involvement.
29. No jurisdictional error having been established, the Amended Application for Review is refused.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: Ms N. Julius

Date: 23 January 2009