Jama v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The sole ground of this application for review of a decision of the Refugee Review Tribunal dated 3 December 1999 is that provided by s 476(1)(f) of the Migration Act 1958 (Cth): that the decision was induced or affected by fraud. By its decision the Tribunal affirmed an earlier decision of a delegate of the Minister to refuse to grant protection visas to the applicant and eight children who accompanied her when she arrived in Australia on 13 July 1998. The alleged fraud is that of Mr Issa Kayse Sagaale (a permanent resident of Australia, recognised as a refugee in May 1996), who now claims to be the husband of the applicant and the father of two of the children and to have parental responsibilities, according to the custom of his people, in relation to all but one of the other children. During an interview with departmental officers shortly after the applicant and the children arrived in Australia, Mr Sagaale denied that the applicant was his wife and that any of the children were his; he said that he did not know the applicant or the children.

Background: Tribunal's reasons and conclusion 2 Although the Tribunal was, in the end, unable to make any findings about who the applicant and the children were or where they came from, there seems no reason to doubt, on the material before the Tribunal and, for that matter, on the basis of evidence admitted in this proceeding, that the applicant is a Somali who has spent some time in Ethiopia. The applicant and the children arrived in Perth with class BC subclass 100 visas. Those visas were issued in the name Hukun Mohamed Elmi, on the basis that she was Mr Sagaale's wife, and in the names of eight children claimed to be members of his family. In circumstances which the evidence before the Tribunal did not make very clear, the applicant was interviewed some days after her arrival by officers of the Department. She said that she was not Hukun Mohamed Elmi but Amina Hussein Jama. She applied for a protection visa. She and the children were taken into immigration detention and were transported to Villawood, near Sydney, where they have been detained since that time. The visas on which the applicant and the children entered Australia have been cancelled. 3 The delegate's decision to refuse the applications for protection visas was made on 21 October 1998. The applicant and the children applied for a review of that decision by the Tribunal. The Tribunal conducted three hearings, at each of which the applicant gave evidence. During the first two hearings, the applicant maintained, in substance, the claims which she had made in interviews with departmental officers and in her application for a protection visa. The Tribunal summarised those claims in the following two passages. "The applicant claimed she was illiterate and about 38 years old. She last saw her husband named Ali Aden Abdullahi about 2 years and three months previously. He is about 39 years old. He [sic] parents are dead, her father 6 years ago during the civil war, her mother also 6 years ago from illness and hunger. She gave a history of having 8 children. Six children have the same father, another two are she claims the product of rape - one aged (at that time) 18 months (a boy) and the other 4 months (a girl). Only three of her own children are with her in Australia. The others are with her mother‑in‑law in Daroor in Ethiopia. The other five children with her in Australia are her sister, and her brother's four children. The four children of her brother she states are aged 11, 10, 8 and 5. She claims that she has looked after them since the death of their parents in Hayndale which is in Somalia near the Ethiopian border. In relation to a photograph which was found in her luggage (stapled to the inside cover of file 98/009613), she denied knowing who the people were, stating that she just found it in her bag. The bag had belonged to her husband's father and he had bought it from overseas, she knew the photograph was there and 'when she asked her husband, he said it was someone his father knows, I think they live in an Arab country (Saudi Arabia).' She was asked by [an officer of the Department] whether it was the man who met her at the airport, she said she didn't know. She said that she had paid US$6000 for the documents to come to Australia, and 'I was sitting somewhere when I was offered documents.' She claimed that in Somalia and in Ethiopia she had been beaten. She claimed the money had come from her father‑in‑law, and he had given the money to them prior to his death six years ago." … "The applicant … claims that she was born in 1960 in Harasheikh, Somalia. She speaks Somali only. She is Tumal, Muslim, married in 1980 in Harasheikh, she was a housewife and a vendor. She left Ethiopia in July 1998 having been an illegal in that country. She has lived in Ethiopia, in Addis Ababa from 1997 until July 1998, and previously (without any exact detail) in Harasheikh, Somalia. She had no education. She claims that she left Somalia as she was a member of the 'minority clan. My clan was being harassed, killed raped and oppressed by the members of the Isaks (Habaryunis especially), my brother was killed and my husband was kidnapped, I think by the Habarynis [sic]. My father was also killed and my mother died of starvation. My other brother died later of natural causes as did my two sisters one who was older than I and another who was younger. I'm only left with one sister and no brother. My brother died of injuries sustained in fighting against the Habaryunis. My father was kidnapped by the other tribe and I heard that he was killed. As for my husband I have not seen him for two years and four months. My husband had one brother and one sister, but they are both dead, the brother before we were married and the sister after our marriage. They both died of natural causes. Only my mother in (presumed by the Tribunal to be mother in law) was alive and staying in Daroor in Ethiopia. I can't go back as it is not safe for me and my children. I fear the major tribes who are persecuting us.' She states 'the major tribes would kill me and my children too … As a minor tribe we are targeted and even if I am killed no one would ask any question … there is no authority in Somalia.' She claims that she last left Somalia in 1997 crossing the border by foot. In other parts of the file the applicant states (notes from an interview conducted on 15 July 1998 - folios 50 - 63) that she has no idea where her husband is, he was in prison in Somaliland for 10 years. He was released at one stage and they were together for 4 years, he escaped from prison and was recaptured and imprisoned. She was raped twice and as a consequence has the two younger children. Her children include those of her brother and his wife. She has looked after those four since the parents died. This was about four and a half years ago after the birth of Muna who is about five and a half. The applicant has looked after them since. She had not seen her husband for two and a half years since she was six months pregnant, he had fled from the civil [war] and the fighting and was neither for or against the government. After separation from her husband she lived in an area called Harashek [sic] for about one and a half years, and then one year in Addis Ababa, including at Diridhabe near Addis. She did not live in a refugee camp, and sold potatoes in the market. She rented a single room in Addis. She got the US$6500 from her husbands [sic] father. She had the money for about ten years, and had some in cash and some in jewellery. She also sold vegetables. She had no idea how the father‑in‑law had the money. She never had a Somali ID card or passport. She left Ethiopia as she could not survive. She had no problems in Ethiopia, though was raped twice when she was looking for her husband. She had been heading into Somalia, and was raped once in Somalia and once in Ethiopia. In relation to the documents to come to Australia she said that the man Abdullah had arranged it all. She met him at the market where she sold vegetables. He told her the documents were stolen, she was confused as to whether he gave her the documents in Addis Ababa or in Diridabah [sic]. She was told the documents would match her family, and there was someone else's photographs on the documents. The man told her that the documents were for children who just happened to be of the same age as her children. She claimed that she later found out that this man Abdullah had stolen the documents from his sister's husband's family, and had sold them to the applicant. She had no idea who the people in the large studio photograph were. At Perth airport when she arrived she happened to meet an African man who understood Somali but could not speak it and who gave her and all the children a lift to his home which was about one and a half hours away from Perth airport. They stayed on the verandah of his house and she had no idea where they were. The man gave them food, and she stayed at his house for two days when he took her to the Catholic Migrant Centre. She has no idea who he is. She wants to live in peace and safety in Australia. Her family are in her hands. She said that in Ethiopia she was beaten and her body is scarred from this, it is not her country, and she was harassed for being a Somali. She fears return to Somalia. She belongs to a minority group and would be discriminated against, she cannot protect herself and the children." 4 There were some variations. For example, the applicant's solicitor, writing to the Tribunal before the first hearing, stated that the applicant now accepted that the photographs on the department's file for the class BC subclass 100 visa application were of herself and the children. The Tribunal questioned the applicant closely about her claims. It asked some questions of one of the children. It heard the evidence of a witness who claimed to have met the applicant and her husband in Daroor, Ethiopia. 5 After the second hearing, the Tribunal wrote to the applicant. It referred in some detail to a number of apparent discrepancies in the material before it, particularly the applicant's own evidence, and to aspects of the claims which the Tribunal found improbable. The Tribunal stated its concern, in summary, as follows: "Having considered the entirety of your claims and all files relating to you the Tribunal is concerned about the truth of your claims in general, but also specifically of your claim to be Amina Hussein Jama. This is significant as it affects how the Tribunal can review and consider your matter. In particular the Tribunal is concerned that you may in fact be Hukun Mohamed Elmi. This is the identity you used to enter Australia. The Tribunal also, as a consequence, has concerns as to the identity of the children accompanying you." 6 The applicant's solicitor replied, enclosing a statutory declaration made by the applicant in which she made what the solicitor described as "major changes in the evidence." The statutory declaration began as follows: "1. I want to tell the truth about my life and how I came to Australia and why I did not tell the truth before now. 2. The document I used to come to Australia was mine. My husband and I had some conflict. That is why I lied before. 3. My true name is Hukun Mohamad Elmi Hayd. I was born in Oodweyne. I am 33 years old. I am a member of the Tumal clan. I grew up and got married in Oodweyne. It is in the region of Burao. All of us are from the Tumal clan, my husband too. The children with me are all mine except for one who is my sister, Sabaat. My husband's name is Isse Keys Sagaale. 4. I was married in 1985. We lived in Oodweyne. Both my husband and I were supporters of Siad Barre as he was very good to the Tumal Clan. Because of this we gained the opposition of all the other clans. Things became very difficult for us in 1988 when the Issak attacked and took over our home. They looted our property. 5. Because of this attack and the feeling that we were now very unsafe we fled from Oodweyne to Ethiopia. We went to Daroor which is just across the border in Ethiopia. I went with my husband and all our children." 7 The applicant described further harassment by the Issak clan in 1995, leading to the family's flight to Addis Ababa and Mr Sagaale's departure for Australia. The applicant then claimed to have returned to Somalia in 1997 to look for her brothers and parents. She said that she was captured by members of the Igal clan, imprisoned and raped every day. Meanwhile, the applications for visas for the applicant and the children were proceeding and ultimately the visas were issued. However, by the time the applicant had been released from prison, she had fallen pregnant as a result, she claimed, of rape. On account of her husband's response to news of her pregnancy and the earlier death of another of their children, the applicant now feared for her safety upon arrival in Australia: "22. When I had the baby my husband sent me some communications and letters and a cassette and he said no one raped you, you got married and had that baby. When you get to Australia I will cut your head. I will slaughter you and the young girl. He had a plan. He wanted me to bring his children to Australia, that is what he was intending. I have not seen him in Australia. I do not know whether my husband is alive or dead. 23. My husband blamed me because another child passed away. His name was Ayale. He became sick and died when we were in Addis. He did not believe me. He said he died because I did not feed him properly. He said he died from hunger and because I mistreated him." 8 According to the applicant's declaration, her brother arranged that someone would meet her at the airport in Perth. He advised her not to make contact with her husband. She was met in accordance with the arrangement made by her brother. She was taken to a house some distance from Perth and thence to the Catholic Migrant Centre, where she was interviewed by officers of the department. 9 The third hearing then took place. The Tribunal questioned the applicant about aspects of the claims which she now made. Among other things, the Tribunal Member questioned her about a large photograph (referred to in the quoted passage from the Tribunal's reasons), found in her luggage when she arrived in Perth, of a man and a woman who, the applicant now said (contrary to earlier claims), were Mr Sagaale and herself. The nature of the photograph appears from the following passage in the Tribunal's reasons: "[The applicant] said 'it was taken just before he left me in Ethiopia.' The Tribunal asked if she was certain. She said 'I don't know about it.' The Tribunal put to the applicant that this was impossible to accept as true. The Tribunal explained that if the photograph was of her and her husband Sagaale as she now claimed and it was taken just before he left her in Ethiopia then how was it possible that it showed well dressed people and her with much gold jewelry [sic], further this was not consistent with her claims of being impoverished, destitute living in a hut outside of a refugee camp, selling vegetables to try and live and her parents dying of starvation. Those observations elicited the concession that the man in the photograph was Mr Sagaale; the applicant did not know who the woman was; the photograph had been sent to her by her husband. The applicant, however, maintained that she had made the mistake because "I had many photographs of me in my gold jewelry [sic] so when I saw all of the jewelry [sic] I thought it was me. " (It may be noted, though it is inconsequential, that the suggestion that the applicant was the woman in the photograph was first made by the Tribunal in its letter written to the applicant after the second hearing.) 10 The Tribunal proceeded to consider the evidence before it, including information about conditions in Somalia and Ethiopia. It pointed to inconsistencies in the claims made by the applicant at all three hearings. It concluded: "It is unfortunate but as a result of the applicant's inability to tell the truth I am left with nothing that can reasonably be said to be true. I find that the applicant was not a credible witness. I do not know who the applicant is, I do not know who the children are or what relationship they have to her, I do not know where they are from and I do not know what their true history is nor why they left and do not want to return to Ethiopia. I am unable on the evidence before me to make any findings on these matters." The Tribunal, having so concluded and having considered the country information, found that it could not be satisfied that the applicant had a well‑founded fear of persecution for Convention reasons; the children made no specific claims and the fate of their applications depended accordingly on the fate of the applicant's claim. Consequently, the Tribunal affirmed the decision of the delegate not to grant protection visas.