Cole v Minister for Immigration & Multicultural Affairs

The Tribunal's decision 8 After recounting the applicant's case as outlined above and the legislative framework, together with a brief reference to some of the leading authorities, the Tribunal's reasons proceed as follows. 9 It accepted that the applicant's father was a member of the army of Sierra Leone and was killed by rebels in 1997 because he refused to assist them. However there was no evidence that the applicant himself had been harassed, even though he was then twenty-one and presumably at risk of being conscripted by either the government or the rebels. There was no harassment of the applicant for a significant period after his father's death. The Tribunal took this as an indication that the applicant did not face persecution by the rebels should he return. Likewise, although it was quite plausible that the applicant's brother joined the rebels, there was no evidence that this action rebounded on the applicant while he was in Sierra Leone. 10 The Tribunal accepted that the family home in Kenema was attacked and that the applicant's mother was wounded as he described. It also accepted that he and Frank went to South Africa where Frank was killed by criminals. 11 However, the Tribunal did not accept some aspects of the applicant's story. In particular, it did not accept that his sister was assaulted by rebels, that the applicant had killed a rebel, that the applicant himself joined the rebels, that Frank was a rebel and was present when the house was attacked, or that Frank had killed one of the rebels later in Freetown. Much of this rejection was based on what the Tribunal saw as inconsistencies between evidence given to it by the applicant and the initial terms of his claim. 12 The Tribunal rejected the applicant's claim for refugee status for three reasons: (i) since he left Sierra Leone there had been significant changes in that Freetown and surrounding areas, including Lungi, had remained under the control of the government and that the UN peacekeeping forces, and people in those areas did not face persecution; (ii) in any event, the applicant had fled as a result of the "general non-discriminatory violence" of the civil war in Sierra Leone and not for a Convention reason; (ii) the applicant did not face persecution by the government because of real or imputed association with the rebels. His father had been killed for siding with the government forces. The applicant himself was not a rebel, despite his claim that he joined the rebels for a few hours in order to travel to Freetown. In any event, the rebels had been offered an amnesty and some leading rebels were members of the new coalition government.

Arguments on review 13 Most of the argument of counsel for the applicant was based on the ground of error of law: Migration Act 1958 (Cth) s 476(1)(e). 14 First, counsel argued that the Tribunal erred in that it did not pay regard to the reasonable forseeability of persecution in the future but confined itself to the point in time when he would return. Counsel referred to a passage in the reasons of the Tribunal where it said: "… the presence of the UN in Sierra Leone, particularly in and around Freetown, and its commitment to implementing the peace agreement, make it safe for the applicant to return without a real chance of facing persecution." 15 This passage, counsel said, shows the Tribunal took a "static" view, confined to the day that the applicant steps off the plane. 16 However immediately after that passage the Tribunal goes on to say: "In that regard, it can be stated that there is compelling evidence of a material or substantial change in Sierra Leone, to the extent that the applicant does not face a real chance of persecution for a Convention reason in the reasonably foreseeable future." 17 I think this is sufficient to show that the Tribunal did not confine itself literally to the day of return, which undoubtedly would be an error of law. It is worth noting here that earlier in its reasons the Tribunal discussed at some length evidence concerning the situation in Sierra Leone, particularly after the July 1999 accord between the government and rebels and the arrival from December 1999 onwards of 6,000 UN troops. That force was to be extended by July 2000 to 11,000. After reviewing this material, which included US country reports, UN Security Council press releases, and Reuter's and Guardian Weekly articles, the Tribunal said: "The information before the Tribunal, including that referred to by the applicant, makes it clear that the peace agreement had not been a complete success. On the other hand, it is equally clear that Freetown and its surrounding areas have been secured by the government and UN forces and that the UN has strongly committed itself to keeping the peace in those areas while it seeks to spread that peace by persuading the rebels to take advantage of the amnesty offered under the peace agreement and give up their arms. Freetown has not been attacked since government forces regained control there in early 1999. The UN has made a strong moral and financial commitment to securing the peace in Sierra Leone and has longer term plans to increase its military and civil presence to achieve its resolutions. As pointed out by the applicant's adviser, referring to Somalia as a case in point, some UN missions have failed. However, the Tribunal is satisfied that, at least for the reasonably foreseeable future, Freetown and surrounding areas, including the area where the applicant lived just outside the capital city, will remain under the control of the peacekeeping forces and people in those areas can go about their daily lives without a real chance of being persecuted." 18 The Tribunal thus addressed the correct question and made a finding on the evidence and material before it. 19 Secondly, counsel argued that the Tribunal incorrectly interpreted the requirements of "substantial change". In the absence of compelling evidence to the contrary the Tribunal should not have inferred that the grounds for the applicant's fear had dissipated since he left the country: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391. Counsel also referred to Hathaway, Law of Refugees at 200-202, to the effect that there must be good reason to believe political change is substantial and effective and not merely a matter of transitory shifts of power. 20 However there was substantial evidence on which the Tribunal could rely for its assessment, particularly in relation to the role of the United Nations. 21 Counsel asserted that in the week after the decision was handed down " … each of the conventional information sources used by the Tribunal from day to day - the Guardian Weekly, the Amnesty news release - were very stridently claiming that the peace process had failed and that the situation was no longer safe." 22 The publications referred to were not produced but in any event the legal correctness of the Tribunal's decision can only be based on the materials which were before it or, in appropriate circumstances, which it might reasonably be expected to have obtained. The Tribunal's task involves an assessment of the risk of certain events occurring in the future, an inherently uncertain exercise. It is not legitimate to use hindsight as a criterion of validity. 23 In any case, as counsel for the Minister pointed out, the Tribunal's primary finding was that the applicant was not a refugee when he left Sierra Leone. Therefore the degree of change for the better in that country, and the permanence of that change, are not matters which can improve his case to be a refugee. 24 Thirdly, counsel argued that there was a real chance the peace process in Sierra Leone would collapse and that the rebels would be able to act with impunity. This would expose the applicant to persecution on Convention grounds: (i) the imputed political opinion of being anti-rebel; or (ii) membership of a social group, namely young men of age and fitness suitable for conscription or alternatively persecution or torture for refusing to be conscripted; or (iii) membership of a social group, namely his family which included his father who had been opposed to the rebels. 25 I accept the argument of counsel for the Minister that these are questions of fact. As already mentioned, the stability and permanence of the peacekeeping arrangements in Sierra Leone cannot be predicted with certainty. But the Tribunal had to make the best assessment it could on the evidence and other material available. Moreover, the failure of rebels to take any action against the applicant in the period after his father was killed indicates that he was not at any particular risk by reason only of his family status (see par 9 above). As for matters not personal to the applicant, the risk of conscription by rebels (assuming they did take over the area to which the applicant had relocated) would be part of the "general common non-discriminatory violence of a civil war". The following passage from Hathaway (at 93) cited by the Tribunal is relevant: "Because … refugee law is concerned only with protection from serious harm tied to a claimant's civil or political status, persons who fear harm as the result of a non-selective phenomenon are excluded. Those impacted by natural calamites, weak economies, civil unrest, war, and even generalised failure to adhere to basic standards of human rights are not, therefore, entitled to refugee status on that basis alone." 26 Fourthly, counsel argued that the Tribunal erred in holding that it was reasonable for the applicant to relocate to Freetown. But in truth this would not be a relocation because, apart from the time the family fled to Kenema, he had always lived in the immediate vicinity of Freetown. 27 Fifthly, counsel attacked the finding that it would be safe for the applicant to return. This was said to make out the ground in s 476(1)(g), that there was no evidence or other material to justify the making of the decision. That ground is qualified by subs (4). Counsel said that the applicant satisfied the requirement of s 476(4)(b), namely that the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. Counsel said that he was not in a position to call any evidence as to this. Rather he said that the Tribunal did not base its conclusion on facts but on surmise. It was not for the applicant to show that the fact did not exist but for the Tribunal to show that it did. However the natural meaning of the language of the statute is that the applicant for review is to make out the ground for review and show that the particular fact on which the decision was based did not exist. This was the approach adopted by the Full Court in "T" v Minister for Immigration and Multicultural Affairs [2000] FCA 467 (Drummond, Mathews and Mansfield JJ). Their Honours said (at para 60): "In relation to those matters, however, it is not shown that the particular fact, namely the making of the particular claim by the appellant, did not exist." 28 Again their Honours said (at par 61): "The appellant's counsel before Moore J [the primary judge] closely analysed the independent material before the Tribunal in an endeavour to demonstrate that Ahmed Mestiri did in fact cease to act as leader of the MDS at that time. It is sufficient to observe that that material does not show that fact. The submissions, in their close analysis of the text of those sources of information, only go so far as to demonstrate that on a certain view of parts of that material the appellant's claims about Ahmed Mestiri's role in the MDS after 1986 are correct, but equally they do not show that the Tribunal's understanding of those materials is incorrect or was not reasonably open. They do not show that the composite of particular facts in (4) above did not exist. The particular facts in (5) above are also not shown not to exist …" 29 Sixthly, counsel argued that the Tribunal made an error of law within the meaning of s 476(1)(e) in its rejection of parts of the account given by the applicant. One part concerned the rebel attack on the applicant's family at Kenema and whether in the course of that attack the applicant's sister was injured and whether the applicant killed a rebel. The Tribunal said: "The Tribunal accepts that his mother took the Applicant and his sister to Kenema after his father's death and that their house was attacked in that village. He initially stated that he fled "into the bush" and that his sister was unharmed while his mother's arm was hacked off. At the hearing, he stated that when he returned, his sister was bearing the marks of an assault. More significantly, he said that he had shot one of the rebels in self-defence when the deceased searched for him at the back of the house. Even taking into account that the Applicant is not fluent in English and that he may have been traumatised and continues to suffer the symptoms of that trauma, the Tribunal accepts the first description, that his sister was unharmed and the Applicant hid. They were positive statements made in an application to seek protection and were not aspects of his claims that he overlooked in making that application. It does not accept the later account that his sister was assaulted and that he killed a rebel. Nor does it accept that he then joined the rebels who, it seems, were pleased to have him join their cause. Not only did the Applicant not claim to have joined the rebels in his earlier claims, it is implausible he was accepted to join the rebels in circumstances where he had killed a fellow rebel just a few minutes previously. Neither that claim nor the claim that he had actually killed somebody appear in Mr Coffey's reports, one of which was received on 6 March 2000, some nine months after the Applicant initially set out his claims for protection." 30 Another part involved the time the applicant and Frank were in South Africa. The Tribunal said: "The Tribunal finds it hard to believe that the Applicant made no attempt to seek protection in South Africa. He was there for almost a year and it is most unlikely that he would not have made any fruitful inquiries during that period if he needed the protection of the South African government against persecution in Sierra Leone. His failure to seek protection suggests that his fears are not as profound as he has [sic] claims them to be. In any event, the Tribunal accepts that Frank was killed by a group of criminals and the Applicant decided to flee to Australia. It finds that his experiences in South Africa do not cast any light on the situation he might encounter if he returns to Sierra Leone." 31 Counsel said that in truth in relation to these two issues there were not any inconsistencies in accounts given by the applicant. Counsel pointed to a letter of 15 June 1999 from Springvale Community Aid and Advice Bureau on behalf of the applicant. This was submitted at virtually the same time as the applicant's protection visa application, the official receipt for which is dated 16 June 1999. In the letter it is stated that the applicant's "… sister was beaten as her face was bruised". However the letter does not make any mention of the applicant himself killing one of the rebels at this time. 32 As to the applicant's time in South Africa, counsel argued that the Tribunal was inconsistent in stating on the one hand that he did make enquiries about protection (it is "hard to believe" that he did not) and on the other hand that he did not. But read as a whole I think the Tribunal is saying that the applicant did not seek protection in South Africa (the applicant never suggested he did) and treating that as something diminishing in a general way the seriousness of his claimed experiences in Sierra Leone. 33 Counsel relied on a passage in the judgment of the Full Court (O'Connor, Branson and Marshall JJ) in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 555 where their Honours said: "… Counsel submitted that it was important that a decision maker adopt a positive stance towards the Refugees Convention and towards the fulfilment of Australia's obligations thereunder, and avoid any assumption that applicants for protection visas are untruthful. Were we satisfied that the RRT had reached its decision in this case by adopting a procedure which placed on the applicant an onus of establishing that he was truthful, or even a procedure based on the assumption that the purpose of the hearing before it was to discover whether the applicant was a truthful person, we would be satisfied that the procedures adopted by the RRT contravened s 420 of the Act." 34 It is to be observed that the Full Court was treating a breach of the obligations under s 420(2)(b) to "act according to substantial justice and the merits of the case" as being a failure to observe procedures required by the Act within the meaning of s 476(1)(a). The Full Court's decision was given after the decision of another Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, which so held, but before that decision was reversed by the High Court: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577. But even assuming that errors in assessing credibility could amount to an error of law within s 476(1)(e) or no evidence in the sense of a non-existent fact (s 476(1)(g) and (4)(b)), I see no grounds for concluding that an approach of the kind identified in Kopalapillai occurred. 35 In any event, in the final analysis this was not a case in which findings of personal credibility proved fatal to the applicant's claim. The Tribunal accepted the fundamental parts of the applicant's individual story, in particular the killing of his father and the horrific attack on his mother, and his flight to South Africa. Indeed, there was at one stage an issue as to the applicant's identity and nationality which, after enquiries, the Tribunal resolved in his favour. Rather, the Tribunal's decision turned on its assessment of the nature of the conflict in Sierra Leone and the prospects of security in that part of the country where the applicant had lived and to which he would return. 36 Finally, counsel argued that there was a real chance of persecution of the applicant by the rebels, now that they are in a situation of power sharing, by reason of an imputed anti-rebel political opinion. That chance would arise from his father's pro-government stance, the possible provision of information by his brother, the applicant being a witness to the atrocities at Kenema, his use of the rebels to effect his escape and his killing of a rebel in the course of that escape. Given that the rebels are now in a situation of power sharing those matters in combination could amount to a real chance of persecution. In my opinion these were all factual issues which were dealt with adequately by the Tribunal: see par 25 above.

Conclusion 37 The application must be dismissed with costs. I would like to express my appreciation for the assistance provided by counsel for the applicant, Mr Justin Serong, who appeared under the Court's pro bono scheme. I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate: Dated: 27 September 2000 Counsel for the Applicant: Mr Justin Serong

Solicitor for the Respondent: Australian Government Solicitor