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[2000] FCA 1309
Federal Court of Australia
2000-09-14
Finkelstein JJ
Original judgment source is linked above.
Introduction 1 The appellant appeals from a decision of a judge of the Court dismissing an application pursuant to Pt 8 of the Migration Act 1958 (Cth) ("the Act") to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 20 October 1999. The Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, not to grant a protection visa to the appellant.
Background 2 The appellant is a citizen of Somalia and a member of the Midgan clan. He left Somalia in 1993 and lived in Kenya until he arrived in Australia on a false passport on 20 June 1999. He has been in immigration detention since his arrival in Australia. 3 Before the Tribunal the appellant claimed that the Midgan are a very low class clan and that he and his family were subjected to attacks when the war broke out in Somalia. His family's house was looted and they were terrorised. The appellant's father was also taken away and blood was forcibly taken from him. His mother and sisters were raped and blood was forcibly taken from his brothers and a sister. The appellant's sister was able to travel to Australia. The appellant gave conflicting evidence to the Tribunal as to the sequence of a number of the events upon which he relied. One particular matter which the Tribunal considered was that the appellant stated that he had heard that his sister had been forced to give blood but that he did not witness this. His sister gave evidence that the appellant was present when she was forced to give blood and that he was beaten. 4 The Tribunal considered inconsistencies between the evidence of the appellant and his sister and was satisfied that the appellant was not a witness of truth. The Tribunal reasoned: "Given the significant problems in the applicant's story about how he came to be in Australia and the other problems above about the evidence of blood transfusions, the Tribunal is not satisfied about the veracity of the applicant's claims about the taking of blood from himself and his family, his beating, their house being looted or the other events he claims occurred to himself and his family in Somalia." 5 The appellant's sister entered Australia on 21 August 1998 and had applied for a protection visa. A delegate of the Minister refused to grant her a protection visa. On review a differently constituted Tribunal determined that she satisfied the criteria set out in the Act for the grant of a protection visa on the ground that she faced persecution as a young Somali woman without family and clan protection. 6 The Tribunal considered material available to it in relation to the taking of blood from persons in Somalia and was not satisfied that it occurred to the appellant. The Tribunal accepted that the forced taking of blood was an assault sufficiently serious to be persecutory, but did not accept that the taking of blood in Somalia was done for a Convention reason. The Tribunal accepted advice from Australian authorities that when blood was taken it was taken from persons who happened to be nearby and had nothing to do with membership of a clan. 7 The Tribunal did not accept that the appellant's father had died, that his mother and elder sister were raped and that he was beaten in the terms stated by the appellant. The Tribunal reasoned: "Given that the Tribunal is not prepared to accept that the applicant has been truthful about his history, the Tribunal does not accept that he was beaten or that the other events occurred as claimed … Finally if the Tribunal is wrong about the applicant's claims that blood was forcibly taken, and the beatings that occurred along with this, the Tribunal is nonetheless satisfied that there is no real chance it will occur in the future should the applicant return to Somalia. Much water has passed under the bridge in Somalia since 1993. There has been a UN peace keeping force. Whilst there is still fighting the country information does not indicate that it is at the level it was in 1991." The Tribunal then set out in some detail the country information upon which it relied. That information included extracts from a March 1999 report on Somalia by the United Kingdom Home Office Country Information and Policy Unit, Asylum and Appeals Policy Directorate. The Tribunal quoted extensively from this report. For present purposes it is only necessary to refer to the following passages included in the quotations set out in the Tribunal's reasons: "4.16 … Inevitably, members of small clans and minority groups are at more risk, although some minority groups, such as low‑caste Midgan, Tomal, Yibir, Ayle, Jaji and Yahar who may risk harassment by Somali clans in rural areas, do not necessarily find themselves facing particular human rights or security problems in Mogadishu. (See also Sections 5.11‑5.24). (emphasis added) … 5.20 The minority Gaboye/Midgan (usually referred to as the Midgan) traditionally settle in areas where they can obtain protection from a clan and build up an economic activity. Although minorities have usually been able to avoid involvement in clan disputes they have sometimes come under pressure to participate in fighting in areas of conflict. This happened to the Midgan in Mogadishu following the collapse of the Barre administration, although Midgan and other minority groups who may risk harassment by Somali clans in rural areas do not necessarily find themselves facing difficulties in Mogadishu now. Midgan have been able to settle in Puntland.(emphasisadded) … 5.24 While many displaced minority groups would not necessarily face persecution on the basis of clan membership or ethnicity were they to return to their home areas, they may well face difficulty in regaining their homes and land which were seized by clan militia which took control of their territories. …" (emphasis added) Having quoted extensively from this report the Tribunal continued: "The tenor of this information in the Tribunal's view is that at the present stage the Midgan are safe in Mogadishu and in Puntland in the north." The Tribunal concluded that the country information to which it had referred was to the effect that: "… in Mogadishu Midgans are not at risk of persecution on account of their clan." 8 The Tribunal then reasoned: "As a result the Tribunal is satisfied that the applicant does not face a real chance of persecution on account of his clan should he return to Somalia. In relation to the forced taking of blood, and the claimed beatings of the applicant, if the Tribunal is wrong about not accepting that these occurred in the past, the Tribunal is satisfied in view of changes in the country since then and the country information above that there is no real chance such practices will occur in the future should the applicant return to Somalia." 9 The primary judge summarised the claims made by the appellant before the Tribunal, the earlier Tribunal's findings in relation to the appellant's sister and the Tribunal's conclusions in rejecting the claims made by the appellant. His Honour noted the appellant's submission that the Tribunal erred by requiring the Convention ground of race, that is membership of the Midgan clan, to be the sole reason of the persecution but noted that the Tribunal had determined: "… even if Mr Ibrahim had suffered persecution in Somalia 'for reasons' which included a Convention reason, there was not a real chance that such persecution would occur on Mr Ibrahim's return to Somalia". His Honour could discern no error of law in the Tribunal's reasoning which would have effected the result. His Honour rejected the appellant's submission that the Tribunal was obliged to adopt the same approach to its fact finding as had the Tribunal which had considered the appellant's sister's application and which made its decision in December 1998. His Honour noted that the country information from the United Kingdom Home Office and Department of Foreign Affairs and Trade referred to in the Tribunal's reasons was not available to the earlier Tribunal which decided the appellant's sister's application. 10 The appellant raised three general grounds of appeal: · The Tribunal and his Honour had not approached the assessment of the appellant's credibility in the correct manner. · The Tribunal had approached the issue of whether the appellant had a well‑founded fear of persecution "for reasons of" belonging to the Midgan clan at too high a level of generality rather than considering the particular case of the appellant. His Honour had not found it necessary to consider this matter. · The Tribunal was obliged to adopt an approach consistent with the facts found by the Tribunal which had heard the appellant's sister's application.
Reasoning 11 The appellant submitted the Tribunal had taken an incorrect approach in assessing the credit of the appellant and accordingly had made an error of law for the purposes of s 476(1)(e) of the Act. It was said that the Tribunal's finding that the appellant was not a witness of truth was based on factual issues which were not borne out by the evidence. Accepting, for present purposes, that that submission can be made out, it does not lead to a conclusion that the Tribunal's finding in relation to the credibility of the appellant resulted in an error of law. A similar submission was rejected by the Full Court of the Federal Court in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. Although it may be accepted, as the Full Court pointed out in Kopalapillai (supra), that a decision‑maker in evaluating the credibility of an applicant for a protection visa should consider sympathetically possible explanations for evidentiary inconsistencies, it does not follow that a finding on credibility by the Tribunal can be the subject of review by the Court pursuant to s 476(1) of the Act. As was observed by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423: "A finding on credibility … is the function of the primary decision‑maker par excellence". 12 The appellant was critical of the manner in which the Tribunal approached the determination of the question whether the appellant had a well‑founded fear of being persecuted "for reasons of" his membership of the Midgan clan. It was said that the Tribunal approached the issue at too high a level of generality and did not consider whether the appellant himself might be subjected to persecution. The appellant contended that the Tribunal's reasoning went along the following lines - the Midgan clan are now safe in Mogadishu, the appellant is a member of the Midgan clan, therefore the appellant will be safe if he returns to Mogadishu. Such a proposition over‑simplifies the manner in which the Tribunal reached its conclusion. The Tribunal set out in some detail the country information available to it. As we noted earlier, the Tribunal's view that the recent material from the United Kingdom Home Office disclosed that in Mogadishu Midgans were not at risk of persecution on account of their clan was not an accurate recitation of that material as it was expressed in terms that the Midgan do not "necessarily" face human rights, security or persecution problems in Mogadishu. Nevertheless, the Tribunal also had before it a report from the Department of Foreign Affairs and Trade ("DFAT") dated 28 September 1999 in the following terms: "The Department spoke with people familiar with the current situation in Mogadishu. These persons advise that the Midgan are not the subject of hostility by the Habr Gidir (or any other clan) in the Mogadishu region. Nor are they aware of persecution of Midgan anywhere else in Somalia." 13 Counsel for the appellant accepted that she could not contend that it was not open to the Tribunal to prefer the DFAT report to the United Kingdom report. It was therefore open to the Tribunal to reach a conclusion that the appellant would not be at risk of persecution if he returned to Somalia. Although it was a matter for the Tribunal as to which report it would accept, it is not immediately clear why the Tribunal might prefer to rely on the DFAT report rather than the other country information which was more qualified. Counsel for the respondent submitted that the DFAT report was more recent information, but we do not see that as a reason for preferring one report over another report. 14 It is fair to say that there is an element of a lack of logic in the reasoning of the Tribunal when it said that the recent material from the United Kingdom Home Office showed that in Mogadishu Midgans were "not at risk of persecution on account of their clan". Such a statement fails to have regard to the existence of the term "necessarily" in the passages referred to. To say that "… some minority groups, such as the low‑caste Midgan … do not necessarily find themselves facing particular human rights or security problems in Mogadishu" and that "although Midgan … do not necessarily find themselves facing difficulties in Mogadishu now" is to say that Midgan do not always encounter these problems but may do so from time to time. However the Tribunal's reasoning process, although illogical or mistaken in this respect, does not give rise to a mistake or error of law: Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411. 15 There is no merit in the submission that the Tribunal was obliged to adopt an approach to fact finding on the objective aspects of the circumstances of the appellant's case consistent with the fact finding of the Tribunal which determined the appellant's sister's application in December 1998. Although consistency may be an important element of good administrative decision‑making each case must be considered in the context of its individual circumstances. The review of the sister's application was determined by reference to the finding that she was a Convention refugee on the ground that she faced "a real chance of persecution for reasons of her being a single, young Somali woman from Mogadishu without family or clan protection and on that ground alone". That ground was not available to the appellant. Further, the sister's application was determined ten months before the Tribunal determined the appellant's application and any changed circumstances between those dates were relevant. In particular the later Tribunal had before it country information not available at the time the sister's application was determined. 16 We do not consider that there was any error in the manner in which his Honour analysed the Tribunal's decision, nor any error of law in the Tribunal's decision itself. The appeal should be dismissed. 17 At the hearing we raised the issue of the appropriate order to make as to costs in particular if the appeal was dismissed. We gave the parties the opportunity to make further submissions on the issue of costs. The respondent subsequently informed the court that if successful on the appeal, he did not seek an order for the costs of the appeal and did not resist an order setting aside the primary judge's order as to the costs of the hearing before him. We consider this was an appropriate concession to make having regard to the observations we have made as to the lack of logic in some of the Tribunal's reasoning. In those circumstances the order of the primary judge that the appellant pay the respondent's costs will be set aside and there will be no order as to the costs of the appeal. 18 The Court wishes to express its appreciation for the assistance given in this appeal by pro bono counsel for the appellant. We consider it appropriate to acknowledge the public service given to litigants in person and to the Court by members of the profession who agree to act without fee so that the interests of justice may be served.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Burchett, Goldberg & Finkelstein.
Associate: Dated: 14 September 2000 Counsel for the Appellant: Ms D S Mortimer - counsel appeared pro bono
Solicitor for the Respondent: Australian Government Solicitor
Ibrahim
Minister for Immigration & Multicultural Affairs
(1999) 168 ALR 407
(1998) 86 FCR 547
(2000) 168 ALR 407
(1998) 84 FCR 411