Nzue Mba v Minister for Immigration & Multicultural Affairs [2001] FCA 439 (18 April 2001)

Last Updated: 19 April 2001

FEDERAL COURT OF AUSTRALIA

Nzue Mba v Minister for Immigration & Multicultural Affairs [2001] FCA 439

MIGRATION - application for review of Refugee Review Tribunal decision - no error of law particularised or apparent - application dismissed

STEPHANE NZUE MBA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 220 of 2001

STONE J

SYDNEY

18 APRIL 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 220 of 2001

BETWEEN:	STEPHANE NZUE MBA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	18 APRIL 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

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 220 of 2001

BETWEEN:	STEPHANE NZUE MBA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	18 APRIL 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 In November 2000, the applicant, a citizen of Gabon, applied to the Department of Immigration and Multicultural Affairs for the grant of a protection visa. On 21 December 2000, a delegate of the respondent ("Minister") refused to grant the protection visa and, on 8 March 2001, the Refugee Review Tribunal ("Tribunal") affirmed the delegate's decision. On 9 March 2001, the applicant applied to this Court under s 476 of the Migration Act 1958 (Cth) ("Act") for a review of that decision.

2 Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees done at Geneva, as "amended" by the 1967 Protocol Relating to the Status of Refugees done at New York ("the Convention"). Article 1A(2) of the Convention provides that a refugee is any person who:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

3 The applicant came to Australia as a boxer in the Gabon Olympic Team for the Sydney 2000 Olympics. When the other members of the team returned to Gabon on 3 October 2000, the applicant did not go with them. He evidently went to the airport with the team but disappeared before boarding the plane. His Olympic Travel Authority, which entitled him to be in Australia, expired on 19 October 2000. On 30 October 2000 he attended the office of the Department of Immigration and Multicultural Affairs to apply for a further stay as a visitor. The record of interview from that date states that the applicant said he wanted to stay in Australia to earn a decent living and to be a professional boxer. On the application form, in the space reserved for further information to support the application, the applicant wrote:

"I want to stay and visit friend, travel to visit holyday [sic], visit friends Melbourne"

4 The interviewing officer did not accept that the applicant would depart voluntarily so he was placed in detention under s 189 of the Act. On 15 November 2000 the applicant lodged his application for a protection visa. In his statutory declaration the applicant claimed that both the Gabon government and the Olympic Committee are corrupt and that he and the other members of the Olympic team did not receive their full entitlement. He believes that the Olympic officials pocketed the difference. The applicant claimed that because he was frustrated by the corruption, his lack of opportunity for a professional future in Gabon and the fact that he had not received his full entitlements, he did not return to Gabon after the Olympic Games, but remained in Australia.

5 Before coming to Australia, the applicant had made two complaints to the Gabon authorities in relation to his treatment as an athlete. He had complained to the president of the Boxing Federation of Gabon about the low level of assistance he received and also to the Minister for Sports and Youth Affairs about the problems he faced with regard to training facilities, lack of equipment and lack of funding. The Minister had informed him that it was not within his power to fix these problems. The applicant told the Tribunal that any criticism implicit in his conversation with the Minister was oblique.

6 While in Australia the applicant also had a private telephone conversation with the president of the Boxing Federation of Gabon. He informed the president that he wished to be a professional boxer. He said that his training needs were not being met in Gabon and that he wished to remain in Australia. The president informed him that if he did that he would never fight for Gabon again.

7 The applicant claimed that, because he had remained in Australia rather than returning with the other team members, the Gabon government would punish and imprison him. While in immigration detention, the applicant learnt that the Consul of Gabon had made inquiries about him and that his adviser had found information on the Internet that he had applied for asylum in Australia. The Tribunal did not accept the evidence regarding material on the Internet, as the applicant's adviser did not submit any documentation verifying its existence, despite having an opportunity to do so.

8 The Tribunal found the applicant to be a credible witness and accepted his evidence. The Tribunal evaluated the applicant's claim for refugee status based on the only Convention-related basis for persecution suggested by the applicant's adviser, being imputed political opinion based on his criticism of government officials and his refusal to return to Gabon.

9 The applicant did not claim to have made any public criticism of the sports administration or the government of Gabon. His complaint to the Minister of Sports and Youth Affairs was polite and not directly critical. The Tribunal commented that, although the applicant's conversation with the president of the Boxing Federation may be taken as a criticism of the Boxing Federation, it could not be taken as a criticism of the government. The Tribunal concluded that, prior to his failure to return to Gabon after the Olympic Games, he did not have any Convention-related fears.

10 The Tribunal then considered the applicant's claim that he would be considered a `traitor' because he did not return to Gabon with the Olympic team. The applicant thought that, as a result, he might be charged with bringing dishonour to his country, or another similar offence. The Tribunal cited independent evidence to the effect that Gabon had an independent judiciary "in principle" but that judges remained vulnerable to government manipulation.

11 The Tribunal considered the position of other boxers who had publicly spoken out against the administration. Consequences for those boxers had included being asked to write a letter of apology, not being considered for selection in future sporting events and being sued for defamation. The Tribunal was of the view that the applicant would not face punishment more severe than his colleagues, who had been more outspoken than he had been. In particular, it noted that, by not returning home, the applicant had not caused any public embarrassment to the government, as generally it did not give returning athletes a public welcome. The Tribunal did not consider that, if the applicant suffered a similar fate to his colleagues, his treatment would amount to persecution. It was of the view that sanctions limited to the applicant's career would not constitute unreasonable harm, especially given the applicant's comments that there was no sporting future for him in Gabon in any event. In relation to the defamation action, the Tribunal noted that it was a piece of litigation between private parties and did not involve state-sanctioned persecution. While more severe consequences have befallen journalists who have criticised the government, those cases involved allegations about criminal behaviour and witchcraft by public officials. The Tribunal did not accept that the applicant would face severe punishment, such as imprisonment.

12 The Tribunal was not satisfied that there was a real chance that harm would befall the applicant in the reasonably foreseeable future for a Convention reason. It was therefore not satisfied that the applicant had a well founded fear of persecution for a Convention reason and concluded that he did not satisfy the criterion set out in s 36(2) of the Act.

Application for review

13 The application for review of the Tribunal's decision in this Court states that the Tribunal completely ignored the situation in Gabon and that if he returned to Gabon, the applicant would be put in jail. The applicant does not point to any error of law in the Tribunal's reasoning or provide any particulars of his complaint. At the hearing today the applicant was unrepresented and spoke for himself through an interpreter. He reiterated his claim made in the application but was not able to advance the matter much further. Rather the submissions made by the applicant today confirmed the opinion I had formed from reading the papers, that his real reason for wanting to stay in Australia is that he believes that this would provide better opportunities for him to further his boxing career.

14 In such circumstances it is not for the Court to construct a case for the applicant. In my view, however, justice requires the Court to scrutinise the Tribunal's reasons for any obvious error. I have done this and can detect no error in the Tribunal's reasoning. As Mr Kennett, counsel for the respondent, summarised it, the Tribunal considered that the applicant did not have a well-founded fear of persecution because:

"(a) he had done nothing in Australia or in Gabon, that was likely to cause the Gabonese government to regard him as a critic; and

(b) even if he had, the available evidence suggested that this would not result in the infliction of any harm amounting to persecution."

15 In my opinion this conclusion was open to the Tribunal on the evidence before it. For these reasons the application must be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 18 April 2001

The Applicant appeared in person
Counsel for the Respondent:	Geoffrey Kennett
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	18 April 2001
Date of Judgment:	18 April 2001