Addo v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The Appellant, who is a citizen of Somalia, arrived in Australia on 1 December 1997. On 15 December 1997, he lodged an application for a Protection Visa with the Department of Immigration and Multicultural Affairs. On 15 January 1998, a delegate of the Respondent, the Minister for Immigration and Multicultural Affairs ("the Minister'), refused to grant a Protection Visa and on 20 January 1998, the Appellant sought review of that decision by the Refugee Review Tribunal ("the Tribunal"). 2 On 12 March 1998, the Tribunal affirmed the decision not to grant a Protection Visa for reasons which were published on that day. The Appellant then filed an application to the Federal Court for review of the decision of the Tribunal. On 11 December 1998, a Judge of the Court dismissed that application with costs. The Appellant has now appealed to the Full Court. 3 The argument before the Primary Judge was based on grounds set out in the amended application for review dated 20 August 1998. However, on the hearing of the appeal, the Appellant sought to rely on grounds different from those relied upon before the Primary Judge. Leave was sought to file a supplementary notice of appeal and a further amended application for review. That course was not opposed by the Minister and leave was granted as sought. 4 The only ground now relied on by the Appellant is that the Tribunal erred in that procedures that were required by section 430(1) of the Migration Act 1958 ("the Act") to be observed in connection with the decision were not observed. Section 476(1)(a) of the Act provides that the following is a ground for review by the Federal Court of a judicially reviewable decision: "(a) that procedures that were required by this Act or the Regulations to be observed in connection with the making of a decision were not observed." 5 Section 430(1) provides as follows: "Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 6 The Appellant claimed before the Tribunal that he had a well founded fear of persecution in Somalia by reason of being a member of the Biyomal sub-clan. He claimed, in substance, that if he returned to Somalia he would be subjected to the risk of persecution by members of the Habar-gidir sub-clan. He claimed, therefore, that he had a fear of being persecuted for reasons of membership of a particular social group, namely, the Biyomal sub-clan. 7 The Tribunal found that the Appellant was not a credible or trustworthy witness and that much of his testimony and many of his claims were simply not plausible or believable. In particular, the Tribunal found that the Appellant is not a member of the Biyomal clan, since he was not sufficiently familiar with the characteristics and nature of the sub-clan. Since the Tribunal found that the Appellant is not of the Biyomal sub-clan, it did not accept his claims that his farm and property in the Biyomal region were seized by other Somalis. Accordingly, since the Tribunal found that the vast majority of the Appellant's claims were not credible, trustworthy or plausible, the Tribunal considered that there was nothing on which it could be satisfied that the Appellant had a well founded fear of persecution for any Convention reason. 8 The Tribunal was also of the view that, even if it had arrived at the wrong conclusion as to the Appellant's lack of credibility, as a result of the 31 January 1998 cease-fire in Somalia, the Appellant does not have a well-founded fear of persecution. The Tribunal found that the changes in Somalia since the 31 January 1998 cease-fire indicated that there had been a material or substantial change of circumstances in Somalia, such that a very high degree of real protection is once more viable in the Appellant's place of origin. The Tribunal considered that the facts before it revealed that peace had existed in Somalia since 31 January 1998 and that the evidence before the Tribunal was such that the possibility of inter-clan hostility resuming was remote. For that reason, the Tribunal concluded that the Appellant did not face a real chance of persecution if he were to return to Somalia. The Tribunal, therefore, was not satisfied that the Appellant has a well-founded fear of persecution for a Convention reason. 9 The Appellant's grounds of appeal, of necessity, extended to both of the conclusions reached by the Tribunal which are summarised above. For the appeal to succeed, it would be necessary for the Appellant to demonstrate that the Tribunal's conclusion both that the Appellant was not a member of the Biyomal clan and that the possibility of inter-clan hostility resuming in Somalia is remote, fell foul of the requirements of section 430(1). That is to say, it would be necessary for the Appellant to demonstrate that the reasons for the Tribunal's decision do not adequately: · Set out the reasons for the decision; · Set out the findings on any material questions of fact; · Refer to the evidence or any other material on which the findings of fact were based.