Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940 | Case summary

Federal Court of Australia|1999-07-09|Before: Emmett JJ

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.

MEMBERSHIP OF THE BIYOMAL CLAN 10 The Appellant complained of inadequate treatment by the Tribunal of corroborative evidence before the Tribunal concerning the Appellant's membership of the Biyomal sub-clan. 11 On 26 February 1998, a solicitor employed by the Legal Aid Commission of New South Wales, who was acting for the Appellant in his application to the Tribunal, forwarded to the Tribunal a submission, together with five statutory declarations by relatives of the Appellant. Four of those relatives apparently reside in Victoria. Those relatives were apparently granted offshore refugee/humanitarian visas in Nairobi, Kenya and arrived in Australia in February 1994. One of the relatives presently resides in Canada. Four of those relatives were half brothers or half sisters of the Appellant. The fifth is married to one of his half sisters and is connected with a Somalian community organisation. Each of the five declarations stated that the Appellant was of the Biyomal sub-clan. 12 In its reasons for decision, the Tribunal referred to that evidence in the following cursory terms: "During the hearing before the Tribunal the applicant was not able to produce any identification documents from Somalia as to identity or nationality. However, he did, through his adviser, lodge several statutory declarations signed by relatives in Australia as well one [sic] by a Somalia community organisation to establish his identity, nationality and clan affiliation." 13 In oral evidence given by the Appellant's half brother, the following interchange also took place: "Q86 OK, and to the best of your knowledge Mr Addo is a member of which clan in Somalia? A (Interpreter) Also Biyomal my clan. Q87 And do you know which citizenship Mr Addo is? A (Interpreter) Somali citizen. Q88 How do you know that? A (Interpreter) Yes, because he is my brother, I am Somalian, my father is Somalian, so he's Somalian." 14 In its reasons, the Tribunal also referred to the oral evidence of the witness's half brother as follows: "The witness is the younger brother of the applicant, and he states that he is also a Biyomal. According to the witness the applicant is a Somali citizen." 15 The only other reference to the evidence of the Appellant's relatives was in the section of the reasons entitled "Findings and Reasons" as follows: "The applicant travelled to Australia on a false passport and he states that he is a national of Somalia. In the absence of any evidence to the contrary and based on his knowledge of Somalia and its history and the statutory declarations lodged on behalf of the applicant, the Tribunal finds that he is a citizen of Somalia and for the purposes of the Convention I have assessed his claim as against Somalia as his country of nationality." 16 There was no other reference to the evidence of those witnesses concerning the Appellant's membership of the Biyomal sub-clan. The Appellant's complaint is that the Tribunal failed to set out any finding or reasons as to whether or not they accepted all or any of the evidence of the Appellant's relatives, and if not, why not, and in what respects. The Appellant contended that such findings are clearly material and significant but that the Appellant has no idea how or in what manner the Tribunal has dealt with the evidence of his relatives. 17 In Rich Rivers Radio Pty Ltd v Australian Broadcasting 11366 Tribunal (1989) 22 FCR 437 and in Muralidharan v MIEA (22 March 1996, unreported) the Full Federal Court, in expressing the rationale underlying the statutory duty to give reasons, adopted the language used by Woodward J in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507 with reference to the unsuccessful party who is appraised of the reasons given: "Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging." 18 The Full Court in Muralidharan also referred with approval to observations of Sheppard J in Cth v Pharmacy Guild of Australia (1989) 91 ALR 65. There, Sheppard J said at 88: "A purpose of requiring reasons is to enable the question whether legal error has been made by the tribunal to be more readily perceived than otherwise might be the case. But that is not the only important purpose which the furnishing of reasons has. A prime purpose is the disclosure of the tribunal's reasoning process to the public and the parties. The provision of reasons engenders confidence in the community that the tribunal has gone about its task appropriately and fairly. The statement of bare conclusions without the statement of reasons will always expose the tribunal to the suggestion that it has not given the matter close enough attention or that it has allowed extraneous matters to cloud its consideration…" 19 The Tribunal is under a duty to review the decision of the delegate on the merits and in doing so must have regard to all of the material and evidence before it and make findings on all of the material questions of fact raised by that material and evidence - Thevendram v The Minister for Immigration & Multicultural Affairs [1999] FCA 182 at paragraph 37. Whilst it may be open to the Tribunal, as a Tribunal of fact, to reject material which was directly relevant to the issue of whether a fear was well founded, it was not open to it to do so without setting out its own findings in respect of the matters the subject of the material - ibid at paragraph 35. 20 In the present case, the Tribunal made a finding of fact as to whether or not the Appellant is of the Biyomal sub-clan. It found that he is not. Thus, the Tribunal did set out its own finding with respect to the matters which are the subject of the material referred to. The Tribunal made findings on all the material questions of fact raised by that material and evidence. It did not, however, give any reason for rejecting that evidence. By necessary inference, the Tribunal must have rejected the written and oral evidence of the appellant's relatives as to his membership of the Biyomal sub-clan. 21 It is clear enough that in its reasons the Tribunal set out the findings which it made on the material question of fact as to whether the Appellant is a member of the Biyomal sub-clan. Further, in its reasons, the Tribunal referred to the evidence and material on which that finding of fact was based. That is to say, the Tribunal referred to the evidence of the Appellant from which it concluded that the Appellant was not sufficiently familiar with the characteristics and nature of the Biyomal sub-clan to support a conclusion that he was a member of it. The Tribunal referred to aspects of the sub-clan's culture which the Tribunal considered the Appellant should have known about if, as he claimed, he was a member of the sub-clan living in the sub-clan's traditional region for many years. 22 The complaint is that the Tribunal did not say why it rejected the unequivocal evidence of the relatives of the Appellant. It was not suggested on behalf of the Appellant that it was not open to the Tribunal to reject that evidence. There are aspects of that evidence which might engender suspicion. For example, at least two of the statutory declarations were in identical terms. Four of them contained paragraphs which were identical. However, the rejection may have been founded on different reasons. The unequivocal evidence of the relatives was not only corroborative of the Appellant's claim that he was a member of the Biyomal sub-clan. If accepted, that evidence established his membership of that sub-clan, independently of the Appellant's own evidence. It may have been the case, so confident was the Tribunal of its conclusion that the lack of familiarity by the Appellant of the characteristics and nature of the Biyomal sub-clan and its culture meant that his claim to be a member of it was incorrect, that such a conclusion required the rejection of any evidence in flat contradiction of that finding. 23 The reasons of an administrative decision-maker are meant to inform, and it would have been preferable for the decision-maker to deal directly with the evidence wholly inconsistent with his conclusion on the Appellant's membership of the Biyomal sub-clan, rather than leave that rejection to be a matter of necessary inference, and without the giving of any reasons for that rejection. 24 Nonetheless, in giving the reasons that it did, the Tribunal committed no error of law. Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with section 430(1) of the Act.

PEACE IN SOMALIA 25 The Appellant's complaint in relation to this question concerns two separate bodies of evidence. It appears that the Tribunal, constituted by the same member who heard the Appellant's case, also heard a review of the Minister's decision concerning a Somalian woman, Misbal Aydid Ahmed. The Tribunal's decision in that case was given on 16 March 1998, four days after the decision in the Appellant's case. In connection with Ms Ahmed's case, material was forwarded to the Tribunal by the solicitor acting for Ms Ahmed. It was said that the Tribunal received a communication from the Refugee Advice and Casework Service (Australia) Inc. on 5 March 1998 attaching a Reuter's article of 16 February 1998 reporting as follows: "MOGADISHU, Feb 16 (Reuters) - Four people were killed and five wounded when rival militiamen from one of Somalia's main clans fought a pitched battle south of the capital on Sunday, witnesses said. They said the fighting started after a member of the Suleiman sub-clan was killed in an attack blamed by militiamen on members of the Eyr sub-clan. Both the Suleiman and Eyr - ostensibly controlled by Somali warlord Hussein Mohamed Aideed - are offshoots of the main Habar Gidir clan, which is split between Aideed and his rival Osman Ali Atto. The fighting was the first serious outbreak of violence since Aideed and Atto came together with other faction leaders two weeks ago to announce a truce and pledge support for national reconciliation conference." 26 It was also asserted that there had been forwarded to the member in connection with Ms Ahmed's case a letter from the Ogaden Relief Association of Australia Inc. dated 17 February 1998. That document may have been received by the Tribunal on 23 February 1998. The document contained the following: "Today the situation is worse - looting, heavily armed gangs, lawlessness, lack of security. The situation in Somalia has been deteriorating and it has reached its climax point. Furthermore, we are aware that Hosni Mubarak of Egypt and Aidiid and Ali Mahdi agreed to build a new Government, while Meles Zanawi of Ethopia. D.Arap Moi of Kenya, Ibrahim Egal of Somali - land and other rebel groups rejected that agreement reached by Aidiid and Mubarak in Egypt. In light of the information available, there are many possibilities to see another destruction and renewed civil war in Somalia in the near future." 27 That material is not referred to at all in the reasons of the Tribunal in the Appellant's case. The Appellant contended that the material, having been received by the Tribunal, albeit in connection with a different case, should have been taken into account in making the decision in the Appellant's case and that the reasons should have indicated why no weight was given to the material. 28 In addition, the Appellant drew attention to other material which was before the Tribunal in connection with the Appellant's case which would, if it were accepted, cast doubt on the conclusion reached by the Tribunal that the possibility of inter-clan hostility resuming is remote. Much of the material in question predated the agreement of 31 January 1998. There is no basis for a contention that the Tribunal was under some duty to give reasons for not attaching weight to material which predated the event upon which its conclusion was based. It cannot be the case that the Tribunal is required to deal with every piece of evidence or other material before it and explain why weight is not given to that evidence or material. 29 The duty of the Tribunal is relevantly to set out the findings on any material question of fact and refer to the evidence or other material on which those findings of fact are based. The Tribunal has done that. In its reasons, it referred expressly to the material upon which it based its conclusion that there has been a material or substantial change of circumstances in Somalia such that a very high degree of real protection is once more viable for the Appellant and its conclusion that peace has existed in Somalia since 31 January 1998. 30 Evidence upon which the Tribunal based that conclusion is set out in the reasons under the heading "Independent Evidence". The Tribunal, in its reasons, set out references to a number of reports concerning the 31 January 1998 "Peace Deal". The Tribunal placed considerable weight on a report in The Economist newspaper. Whether that weight was misplaced is not to the point in considering asserted failure to comply with section 430(1) of the Act. 31 It is not necessary, in order to comply with section 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made. A fortiori, there is no duty on a member of the Tribunal to seek out material which has not been provided to it in connection with the case under consideration in order to give reasons for not attaching any weight to that material. Accordingly, there has been no failure to comply with section 430 in relation to the evidence and material identified by the Appellant. 32 The position of course may be different if the grounds relied on were section 476(1)(g), namely, that there is no evidence or other material to justify the making of the decision. No doubt for good reason, that ground has not been pursued before the Full Court.

CONCLUSION 33 It follows that the appeal should be dismissed with costs. However, there was material before the Court which gives rise to some disquiet and which should be the subject of comment. 34 Four days after the Tribunal published its reasons for decision in the Appellant's case, the Tribunal gave its decision in the application of Ms Ahmed. The decision of the Tribunal was to confirm the decision of the Minister's delegate not to grant a Protection Visa to Ms Ahmed. Counsel for the Appellant drew the Court's attention to the fact that the reasons of the Tribunal in the Ahmed Case contained significant passages which were in precisely the same terms as passages in the reasons given in the Appellant's case. 35 In particular, the conclusion concerning the Tribunal's assessment of credibility was, apart from differences relating to the sex of the parties and an apparent typing or transcription error, identical to the conclusion concerning the credibility of Ms Ahmed. The passage found in the reasons in the Appellant's case was as follows: "Taken as a whole, in the presence of such flagrant and unsatisfactorily explained contradictions and inconsistencies of a material and substantial nature and given the implausible explanations and the severity and degree of implausibility in question, the Tribunal can only come to the conclusion that the applicant's testimony is not plausible, credible or trustworthy and therefore finds that he is not a credible witness and that his claims are lacking in credibility. Accordingly, since the Tribunal finds that the vast majority of the applicant's claims are not credible, trustworthy or plausible, there is nothing on which it can be satisfied that the applicant has a well-founded fear of persecution due to race, membership of a particular social group or for any other Convention reason. The Tribunal is mindful of the horrendous human rights situation in Somalia up until the recent past and the thousands who have been killed in the country over the past years, but this in itself is not sufficient grounds to sustain a claim for Convention refugee status." 36 It may be that where a Tribunal reaches a conclusion on credibility for reasons which are significantly similar, no basis for complaint arises simply because the Tribunal expresses the conclusion in the same language. The Tribunal gave specific detailed reasons in each case for reaching the same conclusion on the credibility of each of them. 37 The second area of identity relates to the Tribunal's conclusion concerning peace in Somalia. The passages in the two cases are identical as to the basis upon which the Tribunal concluded that, even if it had arrived at the wrong conclusion as to lack of credibility, there was no well founded fear of persecution in Somalia. That part of the reasons in both cases dealing with "independent evidence" contains statements as follows: "There have been no recent reports of violence in Mogadishu, which would suggest that this cease fire is effective." "Neither the applicant nor [his/her] adviser were able to present any documentary evidence to suggest that the present cease fire is not effective." 38 As indicated above, however, there was material before the Tribunal in connection with Ms Ahmed's case suggesting that there is in fact documentary evidence to suggest that the present cease fire is not effective. It has been referred to above. It may be that the Tribunal did not consider the documentary evidence to be of much weight. However, it is disturbing that the Tribunal should say that an applicant was not able to present any documentary evidence on a particular subject when, in fact, there was such material produced. The Ahmed Case is not before us. Nevertheless, the use of identical language in the two sets of reasons suggests the possibility that the member dealt with the two applications together. Any cause for doubt as to the reliability of one conclusion suggests doubt as to the other. 39 The existence of the documentary evidence in question may have a tendency to cast some doubt on the reliability of the conclusion reached by the Tribunal in both cases. If that is so, the Appellant's case may well be an appropriate one for the Minister to give favourable consideration to any application which might be made under section 48B of the Migration Act. Section 48A prohibits any further application for a Protection Visa by a non citizen who, while in Australia, has made an application for a Protection Visa that has been refused. However, section 48B provides that if the Minister thinks it is in the public interest to do so, the Minister may determine that section 48A does not apply to prevent an application for a Protection Visa made by the non citizen. In the circumstances, it appears to be an appropriate case for the present Appellant to make an application to the Minister for the exercise of discretion in his favour under section 48B of the Act.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, O'Connor and Emmett.

Solicitor for the Appellant: Legal Aid Commission of NSW

Solicitor for the Respondent: Australian Government Solicitor

Addo v Minister for Immigration & Multicultural Affairs

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