MZWYY v Minister for Immigration and Multicultural Affairs

"For the purposes of this case, it is necessary to note three important matters with respect to the Convention definition of "refugee". The first is that the Convention looks both to the position of the individual and to the conditions which pertain in the country of his or her nationality. More precisely, the question whether a person has a well-founded fear of persecution is one that has both subjective and objective elements and necessitates consideration of the mental and emotional state of the individual and, also, the objective facts relating to conditions in the country of his or her nationality."

The approach taken in Miah is consistent with her Honour's approach to the definition of "refugee" in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ("Chan")at 415. The appellant submitted that the majority of Mason CJ, Dawson, Toohey and McHugh JJ in Chan also established that the definition of refugee involves mixed subjective and objective elements. 7 The appellant argued that the RRT wrongly failed to consider the subjective aspects of the appellant's fear and directed its attention solely to the objective facts relating to the change in government in Kenya. The appellant also maintained that the RRT failed to consider whether, even though the appellant may not be targeted for his involvement in MwM, he might simply be persecuted as a political activist. The appellant argued that the RRT failed to consider that a political activist seeking change would reasonably be as fearful of persecution under the new regime as under the old. At the hearing the appellant's counsel also argued that the fact that the RRT found that the applicant had a well-founded fear at the time he left his Kenya affected the standard to be applied in assessing whether he had a well-founded fear at the time of the RRT's decision. 8 At the hearing, the appellant raised and focussed almost exclusively on the argument that the RRT committed jurisdictional error by failing to consider whether, independent of the appellant's status as a former member of MwM, the appellant was likely to face persecution in Kenya as a political activist. In effect, this claim had three components. First, the appellant suggested that, apart from his membership in MwM, he might face persecution as a former political activist generally. Secondly, he argued that, given his prior political activity, he would be likely to engage in such activity in the future and would suffer persecution as a result. Thirdly, the appellant raised the possibility that, if returned to Kenya, he would abstain from political activity because of the threat of persecution. Referring to the facts and holding of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 ("S395") the appellant argued that this would itself be considered a form of persecution. 9 Counsel for the appellant noted that, after the hearing before the RRT, the appellant's advisor filed further submissions with the RRT. These submissions included additional country information. Most relevantly, the advisor submitted a report dated 18 February 2005 from the UN Office for the Coordination of Humanitarian Affairs that detailed continuing human rights abuses in Kenya after the fall of the Moi regime. Counsel argued that, faced with this information, the RRT should have considered whether the appellant would be at risk of persecution as a former political activist and as someone who would be likely to engage in political activity if he were to return to Kenya. Counsel also contended that the RRT had failed to have regard to this country information or any other such information relating to the situation in Kenya after the fall from power of Daniel Arap Moi. 10 The appellant acknowledged that these claims had not been expressly raised before the RRT. However, he argued that, under NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) 144 FCR 1 ("NABE") per Black CJ, French and Selway JJ, the RRT might be required to consider a claim even though an applicant has not raised the claim explicitly. He submitted that the country information before the RRT should have alerted the RRT to the possibility that the appellant might suffer persecution as a political activist. Thus, in the appellant's view, it committed jurisdictional error by failing to consider that possibility. 11 The first respondent submitted that the RRT was not required to consider subjective factors once it had found that the appellant did not have an objective basis to fear persecution. In the respondent's submission,von Doussa J rejected an argument similar to that of the appellant in SCAM. The respondent maintained that the view of Gaudron J in Chan, and therefore the appellant's argument, was further disapproved by a Full Court of this Court in WAHK. The first respondent submitted that an argument such as that now being put by the appellant had been rejected by the Full Court in SVTB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 104 ("SVTB") at [16]-[21]. The first respondent maintained that there was no basis for formulating a different standard where it was found that the visa applicant had left his or her country of origin with a well-founded fear of persecution at that time. 12 In response to the appellant's argument at the hearing, the first respondent submitted that there had been 'significant movement' in the way the appellant put his case and that his present argument had not been raised before the Federal Magistrate. The first respondent submitted that this ground was not found in the Amended Application or the Contentions of Fact and Law filed by him in the Federal Magistrates Court.

13 Further, the first respondent contended that the appellant's argument was without merit. The respondent accepted that, in some circumstances, the RRT might be required to consider a claim that had not been expressly raised before it, but the respondent submitted that the RRT had not been obliged to do so in the present case. The first respondent noted that the appellant had been legally represented before the RRT and that these representatives had filed submissions on his behalf after the RRT's hearing. The respondent cited the following passage from NABE (at [58]):

"It has been suggested that the unarticulated claim must be raised 'squarely' on the material available to the Tribunal before it has a statutory duty to consider it - SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb 'squarely' does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal."

The first respondent argued that the appellant's new claims were not apparent on the face of the material before the RRT. The first respondent submitted that a close review of the material before the RRT showed that the appellant clearly limited his claims to his past involvement in MwM and had not referred to activism generally or his activities if returned to Kenya. The RRT was not required, so the respondent submitted, to be creative and the information before the RRT did not give rise to any such claim as that now made. In the first respondent's submission, the country information could not be said to raise such a new claim as it was not specific to the appellant and said nothing about the appellant's future behaviour. Accordingly, the RRT was not in error not to consider whether the appellant might be persecuted as a political activist generally. Further, there was no basis for the appellant's submission that this case raised considerations analogous to S395. Consideration 14 The RRT was not in error when if failed expressly to consider the appellant's subjective state. It is true that, if the applicant were to succeed, then the Tribunal had to be satisfied that he subjectively held a fear of persecution if returned to Kenya and that his fear was well-founded. As the Federal Magistrate found, the Full Court decision in WAHK is contrary to the appellant's claim that the RRT was required to consider subjective factors. In WAHK, Lee and Tamberlin JJ said (at [12]-[14]) as follows (emphasis mine):

"Where the RRT has accepted that an applicant had a well-founded risk of persecution at the time of their departure, a question arises concerning the approach that the RRT should take, in view of that finding, at the time it makes its decision concerning whether that applicant would have a well-founded risk of persecution, if they were returned. In [Chan], Gaudron J, (at 415), accepted that the correct approach to a submission as to changed circumstances is as follows:

"If an applicant relied on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of the subsequent changes in the country of nationality."

The above view was not shared by Gummow J, who, in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 659, said that the view of Gaudron J in Chan (quoted above) did not represent the view of the Court in Chan. Gaudron J accepted that this observation was correct in the case of Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [69]. Her Honour considered that her approach was, nevertheless, correct.

The relevant question is whether, as at 29 May 2002, the objective facts establish that the appellant had a well-founded fear of persecution. This is to be assessed on an objective basis, and not on the basis that the fear of a reasonable person in the position of the claimant would not be allayed by knowledge of subsequent changes in the country of nationality. The reference to a "well-founded fear" is a reference to the objective factual position at that time."

The majority's approach is directly contrary to the position of the appellant in this case. Consistently with WAHK, if the RRT is not satisfied, objectively speaking, that there was a real chance of persecution then it does not have to further consider an applicant's subjective fear. This is because, without a sufficient objective chance of persecution, the applicant cannot have a well-founded fear of persecution: see also WAKZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1065 at [46]-[49] and SVTB at [21]. 15 In this case the RRT found, based on independent country reports, that, at the time it came to make its decision, a former supporter of the MwM was not likely to suffer persecution in Kenya if he returned there. Having made this finding, it followed that the appellant could not have a well-founded fear of persecution and the RRT did not need to consider the subjective aspects of his fear. 16 Further, a finding that an applicant had a well-founded fear of persecution at the time of departure from his or her native land may lead to a conclusion that there is a real chance of persecution in the future in that country, but this fact does not alter the fundamental inquiry. The answer to this inquiry will, in each case, depend on the particular circumstances as they are found by the fact-finder. The fact that the RRT found that the applicant had a well-founded fear at the time he left Kenya does not, therefore, affect the standard to be applied in assessing whether or not he had a well-founded fear at the time of the RRT's decision, although it was plainly a relevant circumstance that the RRT was obliged to, and did, consider. 17 Further, I accept that, as the first respondent submitted, there has been 'significant movement' in the way the appellant put that part of his case concerning the current situation in Kenya and whether he would suffer persecution as an activist if returned there. It is, however, unnecessary to delve far into what was and was not argued before the Federal Magistrate, because I would reject the appellant's submissions in any event. 18 First, in its reasons, the RRT specifically referred to a number of country reports concerning the situation in the country after the fall of Arap Moi, including the report of the UN Office for the Coordination of Humanitarian Affairs of 18 February 2005. Further, the RRT implicitly referred to this information when it commented that "in the written submissions provided on two occasions by the applicant's advisor, he has not provided any independent Country Information … to support the applicant's claims that previous members of [MwM] are currently being persecuted in Kenya". Accordingly, I reject the appellant's submission that the RRT failed to have regard to the UN Office report and other information relating to the situation in Kenya after the fall from power of Daniel Arap Moi. 19 Secondly, an examination of the material before the RRT makes manifest that the appellant clearly limited his claims to his past involvement in MwM. He did not refer to the position of other activists or liken his position to theirs, and he said nothing about his own activities or their curtailment if returned to Kenya. There is no factual basis in this case that would support an approach analogous to that in S395. Further, this is not a case in which it can be said that the RRT has failed to make a finding on "a substantial, clearly articulated argument relying upon established facts" such that there has been a failure to accord procedural fairness or constructive failure to exercise jurisdiction: see and contrast Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ. This is because there was no such argument. To adapt the language of the Full Court of this Court in NABE, this was not a case that obliged the RRT to consider the claim as it is now formulated by the appellant because the claim did not clearly arise from the material before the RRT: see NABE at [58] and [60]-[62]. 20 Accordingly, I reject the appellant's claim that the RRT improperly failed to consider whether, independent of the appellant's prior involvement in MwM, he might suffer persecution as an activist if he returned to Kenya. This is because the appellant did not claim that he had been involved in any significant political activity other than his activities with the MwM and, fairly read, there was nothing in the material before the RRT that otherwise raised this new formulation for the RRT's consideration. 21 For the foregoing reasons, I would dismiss the appeal with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Solicitor for the Appellants: Goz Chambers Lawyers

Solicitor for the Respondent: Australian Government Solicitor