BZK16 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellants pay the first respondent's costs of and incidental to the appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 The appellants are, respectively, husband, wife and their infant son. They are each citizens of the Federal Democratic Republic of Ethiopia (Ethiopia). They are also each of Amharic ethnicity and Orthodox Christians. On 3 August 2017, I ordered that the first appellant (BZK16) be appointed as the litigation representative of the third appellant (BZM16), their infant son, with the title of the proceeding being amended accordingly. 2 The first appellant arrived in Australia alone on 10 January 2012, as the holder of an AUSAID/Defence Sector TU 576 Student Visa, issued under the Migration Act 1958 (Cth) (the Act). That visa permitted the first appellant to reside in Australia, subject to its terms, until 15 January 2014. His wife, the second appellant, and their son, the third appellant, arrived later in Australia. They entered Australia on 4 December 2012, pursuant to a Dependent AUSAID/Defence Sector TU 576 Student Visa, due to expire on the same date as the first appellant's visa. 3 On 23 December 2013, a little more than a fortnight before his existing visa was due to expire, the first appellant applied under the Act for that class of visa known as a Protection (Class XA) Visa (Protection visa). His wife and child were nominated on the application form, but his wife made her own separate claim for such a visa. Their infant son's only entitlement to such a visa was derivative. On 11 September 2014, a delegate of the first respondent, the Minister for Immigration and Border Protection (Minister), decided not to grant a Protection visa either to the first appellant or to his wife. That, in turn, meant that no such visa was granted to the third appellant. 4 The appellants then sought the review of the Minister's delegate's decision by the Administrative Appeals Tribunal (Tribunal). On 29 June 2016, for reasons given that day, the Tribunal decided to affirm the Minister's delegate's decision not to grant Protection visas to the appellants. 5 The appellants then applied to the Federal Circuit Court for the judicial review of the Tribunal's decision. On 21 April 2017, that court dismissed that application with costs: BZK16 & Ors v Minister for Immigration [2017] FCCA 877. 6 The appellants have appealed to this Court against that order of dismissal. Quite properly, the Tribunal, necessarily also a respondent, has, as it did in the court below, made a submitting appearance (save in respect of any issue as to costs). 7 The grounds of appeal are these: 1. The Federal Circuit Court judge has made an error of law by failing to recognise that the Second Respondent has not considered relevant considerations: Particulars: (a) The Second Respondent had evidence and materials before it in relation to the situation in Ethiopia and persecution of people with opposing political views by the government. The First Appellant was victimised as a person with opposing political views and as a person from Amharie ethnicity. (b) It had not properly considered the DFAT country information which stated the Ethiopian government is reluctant to accept involuntary returnees and those considered as government opponents will face high risk of persecution. (c) The Tribunal had evidence and materials that there were Amhara and Oromo public uprising and protests that lead to the government declaring a State of Emergency and martial law. (d) The Second Respondent had evidence and materials before it in relation to the activities carried out by the First Appellant in Australia as well as in Ethiopia. 2. The Federal Circuit Court judge has made an error of law by failing to recognise that the Second Respondent has misdirected itself in relation to the independent country information in relation to the treatment of asylum claimants being returned to Ethiopia. Particulars: (a) At [156] the Second Respondent said it had not seen information to suggest that the authorities harmed refugees generally however the country information it cited at para [158] suggests that finding was wrong as there were evidence and materials before the second respondent to suggest that the returnees would be facing high risk of persecution upon return. (b) The First Appellant has been active in opposing the Ethiopian government in Ethiopia and Australia and the Tribunal had evidence and materials to suggest that the Appellant had a profile as a political activist who claimed asylum in overseas. (i) The First Appellant has been a member of the Coalition for Unity and Democracy from 2004- 2005 until it was cancelled by the government. He was arrested for 3 days in 2005. (ii) Having involved in a peaceful protest in 2001/2002 the First Appellant was detained for three months in or about February/March 2001 and tortured for 20 days. He was also suspended for one year from attending university. (iii) The First Appellant has attended a rally opposing the Ethiopian government during G20 summit in Brisbane. 3. The Federal Circuit Court judge has made an error of law by failing to recognise that the Second Respondent has made a decision that is so illogical and irrational that no other decision maker would have made. Particulars: (a) The Second Respondent had evidence and materials to suggest that the First Appellant have a well-founded fear of return due to his profile in Ethiopia. In particular, it has considered a DFAT report which revealed that political activists face a higher risk of being monitored and harassed upon return. (b) The First Appellant's telephone conversations were intercepted by the government and his family property was confiscated. (c) The First Appellant was also victimised at work due to high politicisation of public sector. The First Appellant provided evidence that his employer cancelled the employment contract after learning that the Appellant was getting a scholarship from Australia. The Second Respondent at [72] said "The Tribunal considers that he was supported by his employer for an AusAID scholarship and that he came to Australia on such a scholarship with the knowledge of Ethiopian authorities." (d) By not considering the relevant information, it reached a decision so unreasonable that no other decision maker would have made in the circumstances. [sic] 8 These grounds in essence repeat some, but not all of the grounds of review pleaded in the judicial review application dismissed by the Federal Circuit Court. A feature of these grounds of appeal, as it was of the analogous grounds of review, is that the decision by the Tribunal to reject the second appellant's separately advanced claim for a Protection visa is not alleged to have been affected by jurisdictional error. She does fall within the class, "returnee", mentioned in Ground 2, but the errors of misdirection as particularised under that ground relate to the Tribunal's dealing with the first appellant's claim, not to hers. That does not mean that she cannot be regarded as aggrieved by the Tribunal's decision because, like the third appellant, her entitlement to a Protection visa also had a derivative quality, given that she was a member of the first appellant's family unit. 9 As a matter of first impression, the grounds of appeal appear to be a solicitation to conduct on appeal a form of merits review, as much impermissible in this type of case in this Court's appellate jurisdiction as it is in the Federal Circuit Court's original jurisdiction. A more detailed scrutiny of these grounds, as developed in the appellants' submissions, did not change that impression. 10 Explaining why none of the grounds of appeal has merit requires that the Protection visa claims advanced by the first appellant be detailed. These were accurately summarised in the Minister's submissions, as, in different terms, but to no different effect, they had been by the Tribunal in its reasons for decision. I adopt the summary offered by the Minister. I refrain from detailing the basis of the second appellant's separate claim, because, as I have observed, the jurisdictional errors which the learned primary judge is said, in error, not to have found relate wholly to the first appellant. I record though that the second appellant's claims and the assessment made of them by the Tribunal were also accurately summarised in the Minister's submissions. In summary, the first appellant claimed: (a) That the Amhara ethnic group was the historical enemy of the Ethiopian People's Revolutionary Front (EPRDF) and that he faced numerous "physical, emotional, psychological, health and economic" harms by party officials and members; (b) That in 1991 the property of the first appellant's parents was confiscated by the EPRDF and his father imprisoned due to his ethnicity and blood relationship with the previous monarchy of Ethiopia; (c) That when the first appellant's father was released he was only given a quarter of the farmland given to other farmers in the region, and that the father was threatened several times; (d) In 1991, the first appellant was imprisoned by EPRDF soldiers and forced to work for nine days; (e) In 1998, local officials attempted to send the first appellant and his brother to war without military training, but they managed to flee; (f) In 2002, the first appellant participated in a peaceful university protest following which he was detained for three months, tortured and suspended from university for a year; (g) In 2005, the first appellant became a member of the Coalition for Unity and Democracy (CUD). He was active in the CUD and became a coordinator. The CUD won the election that year and all its top leaders were imprisoned and more than 200 citizens were killed, assaulted, tortured and imprisoned. The first appellant was arrested at this time; (h) The only regions that the first appellant could work were in Addis Ababa and his birthplace; (i) He could not obtain a scholarship, but he studied for a Master of Pharmaceutical Chemistry for two years. Officials forced him to interrupt his study and live and work in a hostel for six months. He got a bacterial infection during this time that caused him to develop central diabetes insipidus; (j) He had been successful in obtaining an AusAID scholarship and his employer, Addis Ababa Water and Sewerage Authority (AAWSA) signed an agreement with the first appellant and AusAID that essentially provided that it would continue paying him a salary and provide him with a professional position upon his return on the proviso that the appellant would be required to work in that position for at least two years; (k) The EPRDF, who were in government at the time, ordered AAWSA to cancel the agreement. With the help of a scholarship officer at the Ministry of Education, the first appellant was able to "finish all processes secretly" and leave the country; (l) In 2010 or 2011, the government had charged the first appellant with corruption for teaching at the Medico-Medical College after hours and on weekends, in an attempt to jail him indefinitely; (m) In Australia the first appellant receives treatment for central diabetes insipidus. The medicine is expensive and not available in Ethiopia and without his medication the condition becomes life threatening. 11 The Tribunal's reasons disclose that the respective claims were subjected to a most searching assessment by the Tribunal, based on the material before it, which included oral evidence given to the Tribunal by both the first appellant and his wife. They took up the offer of a hearing made to them by the Tribunal. The Tribunal's reasons are no less than 75 pages in length. Quantity of expression is, of course, no substitute for quality of avoidance of jurisdictional error. In this case though, as the learned primary judge recognised, the asserted errors made by the Tribunal are predicated upon an acceptance of the first appellant's credibility. 12 The first appeal ground looks to be a rehearsal of the first judicial review ground, as it came to be developed in oral submissions before the Federal Circuit Court (see the reasons of the primary judge at [44] and [45]). In dismissing this ground, the learned primary judge observed (at [46] to [48]): 46. The problem with this argument is that the Tribunal accepted the country information, but found that the Applicant was not a person who had the particular profile and was not a person who was going to be persecuted. Whilst there is a highly politicised civil service, the Applicant was able to not only exist within that civil service from 2004 until the end of 2011 (when he left to come to Australia), but he thrived in it. His position changed, his pay increased, he was given responsibilities and he was allowed to leave the country on the AusAID scholarship, with the blessing of the Ethiopian authorities. 47. So when one looks at that ground, there is nothing contradictory in the way in which the Tribunal has gone about looking at country information. In fact, the country information is quite consistent with its findings. 48. The gravamen of this ground is found in a non-acceptance, by the Applicant, that the Tribunal had made those adverse findings against him. But when one takes into account those adverse findings, there is no contradiction in the manner in which the Tribunal has acted. Therefore, there is no jurisdictional error, and there is no merit in that ground. 13 In respect of the first appeal ground, the appellants repeated the submissions which had been made in respect of the analogous judicial review ground. The difficulty about these submissions is that identified by the learned primary judge. They are predicated upon an acceptance of the account given by the first appellant as to his circumstances in Ethiopia and in Australia as the basis for his claimed fear of persecution. 14 At the heart of the adverse credibility assessment made by the Tribunal in respect of the first appellant was an inherent tension, in the Tribunal's view, as between, on the one hand, his account of persecution and, on the other, his educational attainments in Ethiopia, his lengthy government employment and advancement in that employment there and his being nominated for the AusAID scholarship by government authorities and being permitted to depart for Australia so as to take it up, as well as being permitted to travel to Kenya beforehand for a related interview. The appellants put in submissions that the Tribunal's findings exhibited a pre-conception about the first appellant. But the Tribunal was not obliged to accept uncritically the account given either by the first appellant or by the second appellant. The Tribunal was entitled to form, and its elaborate reasons indicate that the member constituting the Tribunal must have formed, preliminary views, given what is recorded as having been put to the first and second appellants in the course of their evidence before the Tribunal at the hearing. This is permissible, providing that procedural fairness was observed by the Tribunal. It was. The appellants have never alleged that bias, apprehended or otherwise, tainted the Tribunal's decision. Further, the place to have advanced that separate jurisdictional error ground was in the court below. 15 The detailed analysis by the Tribunal of the account given by the first appellant and the reasons why the Tribunal did not accept that account were accurately summarised by the Minister in his submissions in this way (omitting the supporting, footnoted references to particular paragraphs in the Tribunal's reasons): In relation to the first appellant's claims about the scholarship: (a) The Tribunal found that the first appellant's history was not consistent with his claims that he had been regarded adversely by authorities. The Tribunal noted that the first appellant had been employed continuously and had obtained an AusAID scholarship. (b) The Tribunal found it unconvincing and lacking in credibility that: (i) The first appellant was able to gain the AusAID scholarship and come to Australia after government officials forced the manager of AAWSA to cancel his contract; (ii) The first appellant claimed that he was being closely monitored by authorities yet was able to depart to Kenya for the AusAID interview. (c) The Tribunal further found that the evidence in relation to the first appellant's departure from Ethiopia as well as his resignation from his employment were inconsistent. (d) Ultimately, the Tribunal found that the first appellant departed Ethiopia on an AusAID scholarship with the knowledge of the Ethiopian authorities, and that this undermined his claims to have been a person of adverse interest to those authorities. In relation to the first appellant's claims about his employment: (a) The Tribunal did not accept that he had been discriminated against in the workforce. (b) The Tribunal found that he had been employed from December 2004 to December 2011 and that over that period his title had changed and his pay had increased. It found that the fact that he had been assigned a management position in a public sector organisation did not sit well with his claims to have had an adverse profile with the authorities. In relation to the first appellant's claims to have been a CUD member: (a) The Tribunal did not accept that the appellant was ever a member of, or involved in, the CUD or CUDP. The Tribunal found that the difficulty with the appellant's evidence was that it suggested the appellant joined the CUDP, eight months before it came into existence and that he had been unable to correctly name the four parties that made up the CUD. (b) The inconsistency of the first appellant's evidence of the time he joined and the parties making up the CUDP with the actual time of formation and parties involved led the Tribunal to consider that the information presented by the appellants about CUD membership was false, and that the membership card presented was not genuine. The Tribunal held that this fundamentally undermined the credibility of the first appellant's claims to have been politically involved. (c) The Tribunal found it surprising that a person who was politically active and in the role of local coordinator would not know the parties which made up the CUD. (d) The Tribunal did not accept that the appellant had ever in any way had an anti-TPLF38/EPRDF profile or that he had any genuine interest in political activity or in expressing any opposition to the authorities or the TPLF/EPRDF. (e) The Tribunal considered that, as someone who had long-term public sector employment and obtained an AusAID scholarship to come to Australia, he had obtained considerable benefit from the authorities. In relation to the first appellant's claims that his family had been discriminated against for its relation to the royal family, the Tribunal had doubts about the relationship to the royal family but, in any event, did not accept that the circumstances of the first appellant's family were consistent with the claimed profile of the family or that the family had suffered discrimination, intimidation or had otherwise been targeted. In relation to the first appellant's claims to have been detained, the Tribunal did not accept that he had been detained by EPRDF authorities and forced to withdraw from his studies for six months for the purpose of engaging in a project of re-engineering the business processes of municipal agencies, at least in part with the objective of politicising those agencies. It considered that if the authorities were concerned with him to the extent claimed, they would not have involved him in this process. The Tribunal noted that the evidence given by the first appellant about having had a confrontation with the Mayor of Addis Ababa whilst he was in civil service college was not raised until the Tribunal hearing, and that such a confrontation would have been of sufficient significance that it would have been included in his claims prior to the Tribunal hearing if it were genuine. The Tribunal found that the evidence supplied by the first and the second appellant about the events of this period were inconsistent and lacking in credibility. In relation to the first appellant's claim to suffer from central diabetes insipidus: (a) The Tribunal accepted that the first appellant suffered from this chronic disease; (b) The Tribunal did not accept that he contracted it as a consequence of mistreatment whilst being detained by the EPRDF authorities; (c) The Tribunal did not accept that he had been denied medical treatment; (d) The Tribunal found that there was independent evidence that the drug he required was available in Ethiopia, and that in any event, the appellant's willingness and ability to take on study as well as working full-time was not consistent with the circumstances of a person unable to access adequate treatment for a potentially fatal disease; (e) The Tribunal did not accept that the appellant would be unable to access effective treatment in Ethiopia, or if that was incorrect, it did not accept that the unavailability of the medication would constitute persecution for a Convention reason. In relation to the first appellant's claim to have been charged with corruption for teaching after hours and on weekends during 2010 or 2011, the Tribunal did not regard this claim as credible. It was raised for the first time in a document provided at the Tribunal hearing, and given that such a charge would have been a very significant matter, and no satisfactory explanation for the failure to raise it earlier was provided, it did not accept that there were ever charges against him or an attempt to charge him with corruption as claimed. In relation to the first appellant's claim to have been involved in peaceful protests during 2001 or 2002, after which he claimed to have been imprisoned, tortured and suspended from university for a year, the Tribunal found that his evidence was inconsistent and this led it not to accept that the appellant had any involvement in protests or demonstrations during this time. In relation to the first appellant's claim that his telephone calls were being monitored by Ethiopian authorities whilst he was in Australia, the Tribunal found these claims to be "very much lacking in credibility". In relation to the first appellant's claim that he and his brother were forced to join the military to fight in the Ethio-Eritrea war in 1998, but that they were able to flee and were hidden by family in a remote place: (a) The Tribunal questioned how the first appellant was able to finish secondary school in 1999 and go on to university if this claim were true; (b) The Tribunal noted that the first appellant's schooling was unbroken and at a single educational institution during this time, and that the claims about being forced to join the military were not credible in light of his educational record at the time. In relation to the first appellant's claim that he and the second appellant were not free to move around Ethiopia, the Tribunal found that the second appellant was born in Addis Ababa and that they had both lived and worked there. The Tribunal regarded it as a home area for them both, found that they did not have a genuine desire to move to other parts of Ethiopia, and found that in any event it would be reasonable for them to remain living in Addis Ababa as they had done in the past. While it noted that there had been some forced evictions of Amhara people, they did not generally face persecution in other parts of Ethiopia simply for being Amhara. The Tribunal regarded the chance of the appellants being persecuted if they were to travel to other parts of Ethiopia as remote. In relation to the first appellant's claim to be persecuted on the basis of his Amhara ethnicity: (a) The Tribunal accepted that the Ethiopian authorities had been guilty of some human rights abuses and that those who engaged in activity opposed to the authorities were at risk of being targeted and harmed, but did not accept that Amhara people generally face persecution or a danger of genocide. (b) Noting the first appellant's circumstances, and the findings it had made rejecting the claims to have been politically involved and of a profile antagonistic to the authorities, the Tribunal did not accept that there was a real chance he would be persecuted in Ethiopia for reason of his Amhara ethnicity or any actual or imputed political opinion. The Tribunal considered the complementary protection criteria based on its previous factual findings. Specifically in relation to the first appellant's illness, the Tribunal did not accept that the appellant had been unable to access effective medical treatment in the past, or that he would be unable to do so in the future. The Tribunal found that, even if it were the case that effective medical treatment were not available in Ethiopia, it would not give rise to arbitrary deprivation of life or constitute significant harm. 16 The length and detail of this summary is a reflection of the comprehensive engagement by the Tribunal with the first appellant's account and the basis of his claim for a Protection visa. Contrary to the appellants' submission, the Tribunal's credibility findings were not based on inconsistencies arising from peripheral matters. They were based on inconsistencies arising from the account given by the first appellant to support the bases of the claim he made for a Protection visa. 17 It has been said that findings by an administrative Tribunal as to credit are par excellence for that administrative body to make: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at 417, [67] per McHugh J, but that does not mean that they are immune from challenge in the course of judicial review for jurisdictional error: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [37] -[38]. Necessarily, whether particular credibility findings are affected by jurisdictional error is case specific: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at . For this reason, it is essential to analyse in detail why it was that the Tribunal made the credibility findings in question: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [77] (Robertson J). Such an analysis may disclose that the credibility findings were affected by recognised jurisdictional error grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis. As to the latter and as Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, at [135] (SZMDS): 135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. 18 In the present case, as is demonstrated by the above summary of the Tribunal's assessment of the first appellant's evidence, there were perfectly logical reasons why the Tribunal did not accept his account and related claims as credible. That had the consequence, correctly identified by the learned primary judge in the passage from his judgement, quoted above, that there was no failure to take into account relevant considerations. The integers of the claim made by the first appellant for a Protection visa were relevant considerations. These were expressly addressed by the Tribunal, having regard to the material before it, which included both the first appellant's evidence, as well as country information concerning Ethiopia. Whether the first appellant might become the subject of persecution as described in that country information depended upon whether his account was accepted. The Tribunal did not fail to take into account the country information. All it did was not to be satisfied, for the reasons it gave, that the appellant had a well-founded fear of persecution of the kind described in that country information. 19 For these reasons, there is no merit in the first ground of appeal. 20 The second ground of appeal rehearses the second ground of judicial review in the court below, as developed in the course of oral submissions in that court so as to include also an alleged failure to take into account the first appellant's claimed activities in Australia. 21 On analysis, this ground of appeal, as was the analogous ground of review, is really a variant of the first ground of appeal and its analogue below. In relation to the grounds of review, the learned primary judge reached just such a conclusion. This ground of review also, his Honour found, was premised upon an acceptance of the account given by the first appellant. In light of this, the primary judge disposed of the ground as pleaded on this basis (at [51] - [52]): 51. The argument, again, is predicated upon an acceptance that the Applicant is the sort of person who would be targeted by the authorities because of his political beliefs and activities, and what he has done and said in regards to the Ethiopian government. But the ground fails to recognise that the Tribunal has already found that the Applicant is not one of those persons. 52. So, therefore, the DFAT information, that was quoted, would be that there is no realistic harm to be expected to be occasioned to the Applicant if he returns to Ethiopia, because he is not one of that class of persons who would be subject to the persecution. There is, then, no merit in that ground. For the reasons given in respect of the first appeal ground, there was no error entailed in this treatment of this ground of review by the primary judge. 22 As to the first appellant's claimed activities in Australia, these were taken into account by the Tribunal, as the primary judge found (at [55] to [57]). It is just that the Tribunal was not persuaded that these activities were of a kind that would bring him to the attention of the authorities on a return to Ethiopia. The Tribunal did not ignore country information about the treatment of certain returnees by the authorities upon their return to Ethiopia, only that it was not satisfied that the first appellant fell within a class of persons who would be so treated. Once again this entailed the making of credibility findings concerning the account given by the first appellant, but those made by the Tribunal were reasonably open to it. There is no merit in the second appeal ground. 23 The third appeal ground rehearses the sixth ground of review in the court below. In that court, it was disposed of in this way by the learned primary judge (at [69]): 69. When going through the facts in the length that I have, at the beginning of these reasons, it showed that the conclusions made by the Tribunal were well and truly open to it. It is not the case to argue that these are findings that should not have been made. It is for the Applicant to establish that these are findings that could not have been made. The former is merely a merits review, whereas the latter is something that would constitute a jurisdictional error. For reasons already given by him in respect of other grounds of review, described above, the primary judge dismissed this ground of review on the basis that the findings made by the Tribunal were reasonably open. So they were. For reasons which I have already given, arising from the detailed summary of the way in which the Tribunal disposed of the first appellant's account, and contrary to the appellants' submission, this was just a case to which the observation made in SZMDS at [135], quoted above, was not applicable. There is no merit in the third ground of appeal. 24 For these reasons, the appeal must be dismissed, with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.