Abila v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant claimed to be citizen of Uganda and sought protection as a refugee on the ground that if he is returned to that country there is a real chance that he will be persecuted for reasons of his Nubian ethnicity. The applicant arrived in Australia on 13 May 2000 and lodged an application for a protection visa, which was refused on 12 February 2001 by a delegate of the Minister for Immigration and Multicultural Affairs. An application for review was made to the Refugee Review Tribunal ("the RRT") pursuant to the Migration Act 1958 (Cth) ("the Act"). On 26 April 2001, the RRT affirmed the decision of the delegate not to grant a protection visa to the applicant. 2 The relevant background claims and country information are set out in the RRT reasons for decision. There is no need to repeat them for the purpose of the present application. 3 The decision-maker concluded that the applicant had not given a true account of what happened in Uganda prior to his departure. The applicant claimed before the RRT that his father had been taken by guerilla forces in 1996 and was never seen again. The applicant said that he believed that the guerillas killed his father. He said that his mother had told him at the time of the attack on his village in 1996 that the guerillas had done the same thing many times before but that this was the first time they had come to the applicant's village. In 1997, more than half a year after the 1996 attack, the applicant said that the guerillas attacked his village and started killing people and burning houses, including his family's house. The last time he saw his mother was when they were running away from the village when the guerillas attacked and started burning houses and stabbing and killing people. 4 The decision-maker considered that the applicant's account of what happened to his family in Uganda in 1996 and 1997 could not be believed. The decision-maker referred to independent information indicating that there had been violent rebel groups operating in Uganda for many years, but said that there was nothing to indicate that attacks such as those the applicant had described had occurred in the area he claimed to be from, which was located about seventy kilometres east of the capital Kampala. Whilst it was accepted that rebel activity occurred in the north, west and south west of Uganda, there were no reports of any such activity as the applicant described in the south eastern part of the country, where the applicant claimed to have lived. The only report of rebel activity in the south east concerned a bomb blast in Kampala in 1999. The decision-maker considered that there was no information to support the applicant's suggestion that such incidents as that which he claimed to have occurred in his village would not have been reported. She said that the evidence indicated that freedom of the press is generally respected in Uganda and she did not accept that there would have been constraints on the reporting of rebel violence. This was considered to be so because the applicant's evidence indicated that what had happened was not an isolated attack and that it was very brutal. The decision-maker considered that such an attack would have been of major concern to the government and would have led to a significant deployment of security forces. In view of this, it was considered that such activity would have come to the attention of international observers who have reported incidents occurring in other parts of the country. The decision-maker pointed to inconsistencies in the applicant's various accounts of what had transpired, but discounted the importance of these inconsistencies as being explicable. The decision-maker found that the applicant had not provided credible evidence about what happened in Uganda but was prepared to proceed on the basis that the applicant had come from Uganda. 5 The decision-maker said, 13-14, that: "The applicant claims to fear that rebels will harm him if he were to return. If the applicant was from the north, west or south west of the country, it would be understandable that he could fear returning because of the rebel activity: the rebel groups have perpetrated terrible violence against civilians. I could also understand that as a strong young man he might fear that he could be pressed to join a rebel group and face harm if he refused. But the applicant has not been anywhere near these parts of Uganda and there is no reason why he would do so if he were to return. My assessment of the independent information about the rebels and the government response to their actions indicates to me that it is very improbable that rebel activity of the kind seen in the north, west or south west of the country will move east to the districts around the capital where the applicant claims to have lived. I do not consider that there is a real chance that the applicant would face harm at the hands of the rebels if he were to return to Uganda." 6 The decision-maker did not accept that the applicant's race provided any objective reason for his fear. She referred to his evidence to the effect that what he says occurred in 1996 and 1997 could have happened to anyone who was there. The decision-maker pointed out that the only information which suggested that the Nubi can face harm concerns some of them in the north of the country who are often Muslim and in militia groups suspected of having supported Idi Amin. In the absence of any other information about any discrimination or mistreatment of Nubi people in other parts of the country, and in light of the applicant's own evidence about the implications of his ethnicity, the decision-maker did not consider that the applicant's Nubian ethnicity would lead him to face persecution if he were to return. The decision-maker found that the applicant's evidence about his life in Kenya on the streets was generally credible, though confused in some respects. She observed that it was understandable that the applicant would choose to set out on a voyage to a place which might be better than living his life on the streets of Mombasa. 7 The applicant was assisted in the presentation of his case by written submissions from senior Counsel. The Court appreciates these submissions because they served to highlight the issues for consideration. 8 The substance of the submissions was that there was no evidence to justify the RRT's conclusion that the applicant's father was not taken by guerilla forces in 1996 and never seen again, presumed killed, and that the applicant's village was not attacked in 1997 by guerillas, who killed people and burnt houses, including his family's house. It was also said that an absence of evidence of a limited kind concerning a fact is not logically capable of establishing that the fact did not occur: Charaev v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 554 at [21]. It was submitted that the RRT made the findings because it concluded that it had obtained no published information which suggested that guerilla activity had occurred in the area of the applicant's village and that the absence of such published information could not possibly justify the findings made. It was said that the RRT did not reject the applicant's own evidence as incredible and recognised that apart from the main rebel groups in Uganda, other smaller groups emerged from time to time. 9 The second group of submissions made was that the applicant belonged to a particular social group, that is to say, "those opposed to or unwilling to participate in guerilla activity". Further, it was said that there can be fear of persecution where there are fears by reasons of one or both of race or membership of a particular social group, without the applicant being able to demonstrate that it was necessarily one reason to the exclusion of the other.