Joam v Minister for Immigration and Multicultural Affairs

Federal Court of Australia (Full Court)|2002-01-01|Before: Emmett JJ

drummond j: 1 This is an appeal from a decision of a judge of the Court dismissing the appellant's application for review under s 476(1) the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal rejecting his claim to a protection visa. 2 The appellant's claim to be recognised as a refugee was based on his assertion that he was a citizen of Angola and that he fled that country when only twelve years of age. He fled to avoid conscription as a child into one of the warring factions in the civil war then being waged in Angola. From then until early 2000, when he was twenty-four years of age, he lived in Mombassa and Kongowea in Kenya, fending for himself. He said he feared for his safety should he be returned to Angola. The appellant's legal representative put material before the Tribunal that dealt with the highly unsettled state of Angola following the outbreak of extensive fighting between government and opposition forces in 1998 and with the range of human rights abuses engaged in by both sides. The Tribunal noted that the appellant claimed to fear persecution in Angola for what he regarded as Convention-related reasons of 'political opinion'. It observed that some of his claims may, however, relate to the Convention-related factor of membership of a particular social group. 3 The Tribunal rejected the appellant's claim to a protection visa on two bases. Firstly, it found:

"The Tribunal is not satisfied on the evidence before it that the applicant is an Angolan national. The evidence strongly supports the conclusion that he is a Kenyan national. He has no Convention-related claims in relation to Kenya. For these reasons, his application must fail."

4 Counsel for the Minister correctly identified the three pieces of evidence upon which the Tribunal relied to reach this conclusion. Firstly, his lack of familiarity with Portuguese, the national language of Angola and which he claimed was his mother tongue, was such at the time of the Tribunal's determination in the first part of 2001: "that Portuguese was for all practical purposes a language foreign to him". Secondly, the Tribunal relied on an expert language analyst's opinion, based on listening to a recording of the appellant's interview by departmental officers that was conducted in Swahili, that: "he has been familiar with the language since early childhood" and that his "attempts to hide his adeptness at the use of a conventional Swahili dialect indicates his intention to distance himself from Kenyan nationality thus feigning Angolan nationality". Finally, the Tribunal relied on what it described as "a police clearance certificate for the Applicant from the Kenyan police", which it considered was inconsistent with his claim to be an Angolan national, evidencing instead that he was a citizen of Kenya or, at least, entitled to residency there. 5 As to its second basis for refusing the visa sought by the appellant, the Tribunal considered the appellant's claims on the assumption that he is, in fact, an Angolan national. The Tribunal held that if it were to make that assumption, it:

"would still be satisfied on the evidence of the police certificate that the applicant's status in Kenya was beyond question. Thus it would assume he could return there and it would also find that he will enjoy effective protection in Kenya."

6 Further, on the assumption that he was an Angolan national, the Tribunal:

"must conclude, on his evidence and also on independent evidence, that his claims are not Convention-related."

7 The learned primary judge was highly critical of the reasoning the Tribunal relied on to support the second basis for its decision to refuse the appellant the protection visa. So much so that his Honour said that if the Tribunal had acted only on this basis, he would have set the Tribunal's decision aside. Counsel for the respondent did not seek to challenge his Honour's criticisms of this part of the Tribunal's reasons. 8 Debate on appeal focused on the first ground the Tribunal gave for rejecting the appellant's claim to a protection visa and whether his Honour was correct in rejecting the application for review by reference to this part of the Tribunal's reasoning. 9 In rejecting the application for review in so far as the Tribunal held that the appellant was not Angolan, his Honour examined in some detail the evidence as to the appellant's lack of knowledge of Portuguese, his fluency in Swahili, the language analyst's opinion and the police certificate. He concluded:

"The Tribunal's primary finding … was that it was not satisfied that the appellant was an Angolan. Although not expressly finding that he was a Kenyan national, the statement 'the evidence strongly supports the conclusion that he is a Kenyan national' followed by a reference to the fact that the applicant had made no Convention-related claims in relation to Kenya and a statement 'for these reasons his application must fail' amounts, in my view, to a finding that he is a Kenyan national.

Despite the reservation which another mind might have about the Tribunal's reliance upon the applicant's limited knowledge of the Portuguese language and the Certificate from the Kenyan Police, in my view, it was open to the Tribunal on the evidence before it to find that the applicant was a Kenyan national."

10 His Honour made no comment here about the Tribunal's reliance upon the language analyst's opinion. But he had reservations about whether the evidence concerning the appellant's limited knowledge of Portuguese and whether the police certificate in fact showed that the appellant was not Angolan but rather a Kenyan national. 11 Why his Honour nevertheless said that it was open to the Tribunal on all the evidence before it to reach the conclusion it did as to the appellant's true nationality emerges from a later passage in his reasons. In the course of explaining why he would have set aside the Tribunal's decision if it had been based only on the second ground, his Honour held that, contrary to the Tribunal's view of the police certificate, it was not evidence showing that "the applicant's status in Kenya was beyond question" as the Tribunal found and was not evidence of any such thing; there being no other evidence on whether the appellant had any right (whether legal or otherwise) to return to Kenya and have effective protection there, this misuse of the Certificate by the Tribunal amounted to a "reviewable error of law on the effective protection point". His Honour's view of the Certificate as incapable of providing evidence as to the appellant's entitlement to reside in Kenya is still consistent with what his Honour early said about it being open to the Tribunal to find on all the evidence, including the Certificate, that he was a Kenyan national if he is understood as there saying that, even though the Tribunal wrongly evaluated the probative effect of the Certificate, that was an error of fact only and there was other evidence to support the Tribunal's conclusion as to the appellant's nationality that put it beyond review by the Court. 12 If the probative significance of the Certificate depends upon its true construction, the Certificate can only have one construction. If different readings of the Certificate are open, that construction will be the particular meaning which the Court ultimately decides is its proper construction. See Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 at 436. If the probative significance of the certificate is governed by its construction, there is, I think, a substantial argument that the Tribunal fell into error in relying on it in the way it did, viz, as a foundation for inferring that it showed that the appellant was not Angolan, but rather a Kenyan national or at least a person entitled to residency in Kenya. Such an error would probably be reviewable error within s 476(1)(b) and (c) for the reasons given by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 21 and 22, at pars [82] and [83]. 13 But the Certificate is not a document like a statutory instrument, a contract or an instrument under hand which creates or affects legal rights or liabilities of the kind referred to in Halsbury's Laws of England, 4th ed, Vol 13 at pars 138 and 164. The legal effect of all such classes of document is determined by the process of legal interpretation or construction which is concerned with identifying the objectively ascertained intention of the author, be it the Parliament, the parties to the contract or the maker of the instrument under hand. And such a document has only one true construction. 14 However, the police certificate is, I think, nothing more than a statement of fact by the officer who issued it. A "certificate", in the ordinary meaning of the term, is "a writing on paper certifying to the truth of something": see The Macquarie Dictionary, 2nd ed. In Costain International Ltd v The Attorney General (1983) 23 BLR 54, Huggins V-P, in the Hong Kong Court of Appeal, said, at p 56, of what is ordinarily conveyed by the term "certificate":

"As I understand it, a certificate is basically a document which speaks to the truth of some existing fact. Often the fact will be that a person other than the certifier has done something, but it may equally be that the certifier himself has done something or has come to some opinion."

15 That is a good description of the Kenyan Police "Certificate of Good Conduct". It is a statement by the Director of Criminal Investigation of the fact that someone, almost certainly not himself, has made the search and formed the opinion described in the document. The Certificate is thus only a piece of factual information which the Tribunal could use as it pleased in finding the facts in the course of arriving at its decision. 16 The Certificate has its genesis in a demand by the Department of Immigration and Multicultural Affairs ("DIMA") of the appellant's then lawyers to obtain "a police clearance for the period he resided in Kenya". DIMA was apparently aware that the Kenyan police authorities were prepared to provide such clearances on request by a private person. DIMA obtained the fingerprints from the appellant, who was of course in detention, and sent to his lawyers its standard form containing those prints which the lawyers passed onto the police in Nairobi. The appellant was identified in this DIMA form (a copy of which appears at p 60 of the Appeal Book) only as "Alex Joam", though he was referred to in all previous correspondence about the police clearance that passed between DIMA, his lawyers and the Kenyan police as "Alex John Joam". 17 The Director of Criminal Investigation in Nairobi, by letter dated 20 March 2001, sent to the appellant's lawyers "certificates of good conducts", which was described in the Director's letter as including "No. 5207 Alex Joam". The certificate is on what appears to be a standard Kenyan Police Form No. C. 24 A. It is dated 7 March 2001. The body of the certificate is in the following terms:

I hereby certify that the fingerprints attached to this Certificate are those of

and that they have been searched in the criminal records office and no criminal record has been traced. The validity of the information on this Certificate is as at the date of issue."

18 The document referred to in the Certificate as "the fingerprints attached to this Certificate" is not included in the Appeal Book. The respondent has, however, at the Court's request, provided a copy of this attachment. It is the DIMA form containing the appellant's prints earlier referred to, with some handwritten notations probably made by the Kenyan police. 19 In my opinion, the Certificate is no more than a statement by the issuing officer that the prints of the person named in the DIMA form as "Alex Joam" have been compared with the prints of persons held on file in the Criminal Records Office in Nairobi and that, as at the date of the Certificate, the prints in the DIMA form do not match the prints of any person with a criminal record in Kenya. The Certificate does not purport, in my opinion, to go beyond that. Its description is "Certificate of Good Conduct": as the content of the Certificate shows, "Good Conduct" here means nothing more than that the subject of the Certificate has no criminal record in Kenya. It certifies only in respect of a search of "the criminal records office". I can see no ground for thinking that that Office is the repository of any information other than the records of criminal offenders in Kenya. In particular, I can see no basis for reading the document as certifying to a search of non-criminal records held somewhere in Kenya in respect of Kenyan nationals or non-Kenyan national residents or legal or illegal immigrants or legal or illegal visitors to Kenya. 20 In using this certificate as a foundation for its conclusion that the appellant was not an Angolan citizen, but rather a Kenyan national or at least a lawful Kenyan resident, the Tribunal said:

"The certificate is evidence of three things. The Applicant's fingerprints are on a file somewhere in Kenya, they matched with the ones sent by the adviser, the name "Alex Joam" corresponded with those fingerprints, and Kenyan police had no difficulty finding a file under the name "Alex Joam". This does not seem to be the situation in respect of someone who has been for 13 years an illegal resident of Kenya.

The Applicant asserted vehemently that he has no criminal record in Kenya. He also acknowledged that probably the only other place where police would likely find a copy of a person's fingerprints to match against prints provided in correspondence would be in the files of an applicant for a citizen or resident ID registration card.

This appeared to be evidence to the effect that the Applicant has citizenship or residency in Kenya."

21 For the reasons given, the Tribunal, in suggesting that the Certificate evidenced the three things set out in the first paragraph of this passage of its reasons, in my opinion, engaged not in forensic fact-finding but in mere speculation. The acknowledgment by the appellant referred to in the second paragraph of this quotation from the Tribunal's reasons also appears to be mere speculation by the appellant, at the behest of the Tribunal: there is nothing in the material available to this Court to suggest that the Tribunal had grounds for thinking that there is in place in Kenya a system for recording not only the personal particulars of an applicant for a Kenyan citizen-or a Kenyan resident-ID registration card, but also the fingerprints of all such persons. 22 But though I think the Tribunal's ultimate conclusion as to the appellant not being an Angolan citizen was based in substantial part upon unjustifiable speculation about the probative significance of the police certificate, that is no more than an error of fact by the Tribunal, which this Court cannot rectify. In view of the absence of evidence in this Court that the appellant's fingerprints were in truth not on file anywhere in Kenya, the Tribunal's speculation does not, I think, have any other significance. See Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 223 - 224. 23 The learned primary judge expressed disquiet should steps ever be taken to remove the appellant to Angola: because of the errors in the Tribunal's decision-making process, his Honour said that it would not be appropriate to rely on the Tribunal's reasoning in relation to the appellant's claims. I share his Honour's disquiet. 24 Apart from the wrong use the Tribunal made of the Certificate, the other reasons the Tribunal gave for reaching its conclusion that the appellant is not an Angolan national, in my opinion, lack cogency. In fastening on this man's lack of fluency in Portuguese now (which he has said was his mother tongue), the Tribunal entirely ignored the significance of his having lived in a Swahili-speaking environment for the last thirteen of his twenty-five years. The Tribunal's trust in the linguistic analyst's report as supporting its conclusion that the appellant is not Angolan is made questionable by the brevity of the report, by the unexplained confidence of the analyst in divining that the appellant was attempting to hide "his adeptness at the use of a conventional Swahili dialect" and had revealed that his intention was to distance himself from Kenyan nationality so that he could feign Angolan nationality and also by this Tribunal's own unexplained confidence in the linguistic analyst's opinion, when other Tribunals have thought that this kind of evidence, when relied on to prove national origin, needs to be treated with caution. 25 As the learned primary judge said, there was no reviewable error in finding that the appellant was a Kenyan national. But that is only because the Refugee Review Tribunal is immune from correction by this Court in respect of errors of fact, no matter how egregious those errors may be and no matter how calamitous the consequences may be for the applicant for a protection visa. 26 Despite the errors of fact made by the Tribunal in this case, the appeal must still be dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

MANSFIELD J: 27 I have had the benefit of reading the reasons for judgment of Drummond J and of Emmett J. I adopt their Honours' recitals of the material before the Refugee Review Tribunal (the Tribunal), how the Tribunal dealt with that material, and of the reasons for decision of Carr J at first instance. 28 The bases for the finding by the Tribunal that the appellant is a national of Angola, in my view, provide scope for considerable unease about that finding. I share the concerns of Drummond J about the weight which the Tribunal apparently ascribed to the linguist's report. The appeal book does not disclose that the Tribunal was aware what questions the linguist had been asked to address. It does not disclose whether the linguist was asked to consider whether the appellant's ability to speak KiSwahili was consistent with him having been living in Kenya for some 12 years or more, since about age 12, and living off the streets. The Tribunal did not apparently ask that question, nor explore with the linguist what was meant by the expression "early childhood years". I also share the concerns of Drummond J about the use to which the Tribunal put the appellant's relative facility in KiSwahili compared to his claimed native language of Portuguese in the circumstances. In respect of those matters, however, I agree that no reviewable error on the part of the Tribunal is demonstrated by its use of that evidence. The finding of fact as to the appellant's Kenyan nationality was, as the learned primary judge said, open to the Tribunal on that material. 29 I agree with Emmett J that it was open to the Tribunal to infer from the "Certificate of Good Conduct" issued by the Criminal Investigation Department of Kenya Police (the Certificate) that the appellant's fingerprints are on a file somewhere in Kenya. I respectfully adopt his Honour's reasons for that conclusion. I myself would not have drawn that inference in the circumstances, but it is not for the Court to substitute its view of what inference should be drawn from such a document for that drawn by the Tribunal. If that inference were not available to be drawn by the Tribunal, I would have considered whether the appellant had made out the ground of review under s 476(1)(g) and s 476(4)(b) of the Act. That is, but for the availability of that inference, the appellant might have argued that the Tribunal's decision that he was of Kenyan nationality was based on the particular fact that his fingerprints existed on a file somewhere in Kenya in his name, and that fact did not exist. There would then be other hurdles to the appellant making out that ground of review: see Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212. It is not necessary to address those issues in this matter. 30 It is unfortunate that the outcome of the appellant's application for a protection visa should depend in part at least upon an interpretation of the Certificate, one which I consider barely tenable, when the Tribunal could have ascertained clearly whether the Criminal Investigation Department of Kenya Police did in fact have access to fingerprints of the appellant in records in Kenya simply by making an inquiry of that authority. I do not understand why it did not do so. 31 However, as that inference was available to the Tribunal, as Carr J said at first instance, it was open to the Tribunal on the evidence to find that the appellant was a Kenyan national. I agree that the appeal should be dismissed. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

emmett j: 32 The appellant arrived in Australia as a stowaway on 13 May 2000. On 16 April 2000, he lodged an application for a protection visa under the Migration Act 1958 ("the Act"). On 15 February 2001, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), made a decision refusing to grant a protection visa. On 19 February 2001, the appellant sought review by the Refugee Review Tribunal ("the Tribunal") of that decision. 33 On 11 May 2001, the Tribunal affirmed the decision not to grant a protection visa. On 23 May 2001, the appellant lodged an application for an order of review of the Tribunal's decision with the Perth registry of the Court. The application was filed by the appellant in person and contained no grounds of review. No grounds were subsequently supplied. On 15 August 2001 a judge of the Court heard the application and dismissed it with costs. The appellant now appeals to the Full Court. 34 A notice of appeal was filed by the appellant in person and is handwritten. The grounds are difficult to follow, but appear to be as follows: · the judgment did not consider the relevant immigration law act 1958 concerning a person's fear of persecution under UN Convention for the Status of Refugees; · there was no evidence or other material to justify the making of the decision that the appellant did not have a well-founded fear of persecution by reason of his political opinion. 35 While it is not entirely clear, the notice of appeal is capable of being construed as a complaint that the primary judge erred in not holding that the decision of the Tribunal should be set aside on those grounds. Those grounds, had they been stated in the application for an order of review, would have been capable of raising the grounds referred to in ss 476(1)(e) and (g) of the Act, as well as the grounds referred to in ss 476(1)(b) and (c) of the Act. 36 The appellant claimed to be a national of Angola. He claimed fear of persecution in Angola by reason of his political opinions and membership of a particular social group. He claimed that he fled Angola to Kenya at the age of twelve years because boys of that age were being conscripted into the army to fight the UNITA rebels. He claimed that boys of that age were the habitual focus of the campaigns by the government in Angola to increase the size and power of its reaction to the rebels. The Tribunal observed that UNITA rebels had been locked in an intermittent civil war with the Angolan government for several decades and that part of the population had been caught in the crossfire. 37 The question of the appellant's nationality was treated as a substantive issue by the Tribunal. The Tribunal was not satisfied on the evidence before it that the appellant is an Angolan national. Rather, the Tribunal considered that the evidence strongly supported the conclusion that the appellant is a Kenyan national. However, the appellant made no claims related to the UN Convention Relating to the Status of Refugees 189 UNTS 150 ("the Convention") in relation to Kenya. For that reason, the Tribunal considered that the appellant's claim to be a refugee must fail. The Tribunal then went on to consider whether, if it accepted that the appellant is an Angolan national, it would be satisfied that he faced a real chance of Convention related persecution if he returned to Angola. The Tribunal concluded that the appellant's claims in relation to Angola were not Convention related. 38 The primary judge concluded that the Tribunal's reasons amounted to a finding that the appellant is a Kenyan national. His Honour held that, despite certain reservations which another mind might have about the Tribunal's reliance upon the evidence before it, it was open to the Tribunal, on that evidence, to hold that the appellant was a Kenyan national. His Honour concluded that scrutiny of the papers and the Tribunal's reasons did not disclose reviewable error. 39 However, were it not for the circumstances that the Tribunal disbelieved the appellant's claims and evidence that he was Angolan and that it was open to the Tribunal to find that the appellant is a Kenyan national, his Honour would have set aside the Tribunal's decision. His Honour considered the Tribunal's reasoning on the assumption that the appellant is an Angolan national involved jurisdictional errors that would have been of the type referred to by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf; Re Minister for Immigration [2001] HCA 30 [82]. His Honour also considered that there was reviewable error of law in the reasoning of the Tribunal on that question. However, because those errors did not bear on the Tribunal's primary finding that the appellant was not an Angolan national, his Honour dismissed the application. 40 While no submissions were made by or on behalf of the appellant, the Court has examined the reasoning of the Tribunal in reaching its conclusion that the appellant was not an Angolan national but a Kenyan national in order to determine whether there was error on the part of the primary judge in dismissing the application. 41 The Tribunal recorded that the appellant attended video link hearings before the Tribunal on 18 April 2001 and 1 May 2001. The Tribunal said that the first hearing was conducted, at the appellant's request, with the assistance of a Portuguese interpreter. Portuguese is the national language of Angola. However, the Tribunal aborted that hearing because it considered that the appellant could neither understand, nor make himself understood in, Portuguese. 42 The second hearing was conducted, at the Tribunal's direction, with the assistance of a KiSwahili interpreter. KiSwahili is a variant of the Swahili language, which is spoken in Kenya. In adopting that course, the Tribunal relied on a report of a language analysis of tapes of earlier interviews between the appellant and officers of the Department of Immigration and Multicultural Affairs ("the Department"). The report was to the effect that the appellant spoke fluent, comfortable and colloquial KiSwahili, in complex constructions, albeit with an apparently affected drawl but without a foreign accent. The report asserted that the appellant is probably a native speaker of KiSwahili or at least has been speaking it since early childhood. The Tribunal considered that the age of twelve years, when the appellant claimed to have left Angola, was not early childhood. 43 The Tribunal observed that in order to prove that he was Angolan the appellant asked for a Portuguese interpreter for what turned out to be the first of his two Tribunal hearings. However, the Tribunal considered that Portuguese was, for all practicable purposes, a language foreign to the appellant. 44 In a submission made to the Tribunal before the aborted hearing, the appellant's then legal advisers asserted that the appellant "speaks Portuguese, which is the official language of Angola". The submission went on to say: "In finding against the [appellant] at the primary stage of assessment the Minister's delegate relied substantially on a linguistic report concerning the [appellant]… We note that the language analysis was performed on the [appellant's] interview, which was conducted in Swahili. The [appellant] learned to speak Swahili on the streets of Kenya as a young boy on his own fighting for survival. The [appellant] learned to speak Swahili when he was twelve years old and has spoken the language ever since. He was in Kenya for many years which is why he has good knowledge of Swahili. Clearly the [appellant] is more likely than not to have a Kenyan accent when speaking Swahili. It is submitted that the Department's linguistic analysis cannot be regarded as conclusive evidence that the [appellant] is not an Angolan national. ……………………… It is our submission that reliance on linguistic analyses as determinative of whether or not an applicant is a national of a given country can be dangerous. As the above Tribunal decisions indicate [referring to other Tribunal decisions concerning linguistic analysis], evidence from language experts ought to be used sparingly and only as corroboration of other facts found to exist by conventional means. In the present case the language evidence was practically the sole basis for finding that the [appellant] was not from Angola and, as such, should be rejected by the Tribunal. ………………………" 45 Following the aborted hearing of 18 April 2001, the Tribunal wrote to the appellant's legal advisers saying relevantly: "The Tribunal attempted to conduct a hearing today in the English-Portuguese medium, as requested by you. The Tribunal had to abort the hearing, as your comprehension of Portuguese appeared to be extremely poor. You said at the hearing that Portuguese is your mother tongue. You said that your mother spoke it with you for twelve years before you left Angola. However, you said other things that did not appear to be consistent with having been raised in Angola in the Portuguese language. For example you said that your name was Alex John Joam, and you also said that your mother called you Alex Johan Joam. However, 'John' is not a Portuguese name. 'Joăo' is the Portuguese name. It seemed [sic] incongruous that you should be called John. It seems you were unable to address this position in Portuguese, so the Tribunal is offering you another opportunity. Meanwhile, the Tribunal notes that you have never claimed that you were originally known as 'Joăo', or that you were ever known by any names other than 'Alex John Joam'. The tape recording of the aborted hearing today shows that, apart from not understanding most of the questions and information put to you, you were unable to express yourself fluently in Portuguese. ……………………… The evidence from that hearing is that you are not fluent in Portuguese, the national language of Angola. This has potential implications as to the question of your nationality, which is far from being settled in the mind of the Tribunal. The Tribunal asked you which language was your most fluent and you said 'Swahili'. The Tribunal asked you if you meant Swahili as spoken in Kenya and your answer affirmed that you did. The Tribunal notes that you spoke Swahili fluently in previous interviews. The Tribunal notes that you asked for Swahili interpreters for those interviews. The Tribunal notes evidence from an apparently expert witness to the effect that you speak Kenyan Swahili with an ease and fluency consistent with the experience of a native speaker. This position was contended by you through your adviser in a submission dated 17 April 2001, but the Tribunal must now consider all the evidence before it, including your poor performance today in what you claim was your mother tongue. ……………………… You have until Tuesday 1 May 2001 to address the above cited concerns in any way you deem appropriate, either in writing or at the rescheduled hearing which will, under the Tribunal's direction, be conducted in the English-Swahili medium…" 46 On 19 April 2001, the appellant's legal advisers acknowledged the Tribunal's communication of 18 April 2001 and confirmed the new hearing date of 1 May 2001. No further submission was made on behalf of the appellant. 47 There was no reviewable error on the part of the Tribunal in relying on the material discussed above to conclude that the appellant was not an Angolan national. However, the Tribunal, in its reasons, also referred to evidence before it comprising a Certificate of Good Conduct ("the Certificate") issued by the Criminal Investigation Department of Kenya Police ("the Kenya CID"). It then relied on that evidence in reaching its conclusion concerning the nationality of the appellant. 48 The Department had asked the appellant's legal advisers to obtain a police clearance certificate for the appellant from the Kenya CID. Accordingly, on 20 July 2000, they wrote to the Kenya CID requesting a "Penal Certificate (Police Clearance)" for the time the appellant was residing in Kenya. The Kenya CID responded saying that to enable a "Certificate of Good Conduct" to be issued, it would be necessary for original finger and palm prints to be sent to them, together with a fee. On 10 January 2001 the appellant's legal advisers forwarded to the Kenya CID a cheque for the fee, an authority signed by the appellant and original finger and palm prints of the appellant. The prints were obtained from the Department. 49 The appellant's legal advisers received the Certificate which is dated 7 March 2001 under cover of a letter of 20 March 2001. The Certificate purports to be signed on behalf of the director of the Kenya CID. The Certificate was in the following terms: " CERTIFICATE OF GOOD CONDUCT I hereby certify that the fingerprints attached to this Certificate are those of ALEX JOAM ______________________________________________________________ and that they have been searched in the criminal records office and no criminal record has been traced. The validity of the information on this Certificate is at the date of issue. This certificate has been issued without any alteration or erasure." 50 Although the copy of the Certificate in the Appeal Book has no attachment, the Court has been assured by counsel that a copy of the prints is attached to the original. 51 The Tribunal considered that the Certificate was evidence of three things as follows: · the appellant's fingerprints are on a file somewhere in Kenya; · the name "Alex Joam" corresponded with those finger prints; and · the Kenya CID had no difficulty in finding a file under the name "Alex Joam". The Tribunal concluded that that would not be the situation in respect of someone who had been an illegal resident of Kenya for 13 years. 52 The Tribunal recorded that the appellant, having vehemently asserted that he has no criminal record in Kenya, acknowledged that probably the only place where police would be likely find a copy of a person's fingerprints to match against prints provided in correspondence "would be in the files of an applicant for a citizen or resident ID registration card". The Tribunal considered that "this appeared to be evidence to the effect that the [appellant] has citizenship or residency in Kenya". 53 The reasoning of the Tribunal gives rise to some disquiet as to whether its conclusion was correct. However, that is not the question for the Court on the hearing of an application for an order of review of the Tribunal's decision. The question is whether one of the grounds set out in s 476(1) of the Act can be established. The primary judge concluded that the appellant had failed to establish any such ground. 54 Placing reliance on the linguistic abilities and disabilities of the appellant and the weight to be given to those matters were matters for the Tribunal. There was no error on the part of the Tribunal in basing its conclusion on those matters. 55 In so far as the Tribunal also based its conclusion on the terms of the Certificate, it drew inferences from the terms of the Certificate. The drawing of such inferences was a matter for the Tribunal. On the assumption that the Certificate may fairly be construed as the Tribunal construed it, those inferences were open to the Tribunal. 56 However, a question arises as to the true construction of the Certificate. Having regard to the circumstances in which the Certificate was issued, namely, pursuant to the request made to the Kenya CID by the appellant's legal advisers, it would be open to draw an inference that the Kenya CID were intending to do no more than to say that the finger prints submitted to them had been searched in the Criminal Records Office and that no criminal record had been found in respect of those prints. If that is all that the Certificate said, the inferences drawn by the Tribunal would not have been open to it. Whether such an error would be such as to enliven s 476(1)(b) or s 476(1)(c) would then require consideration. 57 However, despite an inference that may be drawn from the circumstances in which it was issued, the Certificate, literally construed, certifies two separate matters as follows: · that the prints attached to the Certificate are those Alex Joam; and · that those prints have been searched in the Criminal Records Office and no criminal record has been traced. 58 A Certificate by Kenya CID that the prints attached to the Certificate are those of Alex Joam is capable of giving rise to an inference that Kenya CID had access in Kenya to fingerprints that Kenya CID could certify as being those of somebody with the name "Alex Joam". If the only information available to Kenya CID was the material sent by the appellant's legal advisers, Kenya CID would not have been in a position to certify that the prints sent to them were the prints of someone by the name "Alex Joam". Accordingly, it was open to the Tribunal to draw the inferences that it did from the existence of the Certificate. It follows that no reviewable error has been demonstrated in so far as the decision of the Tribunal was based on the Certificate. Accordingly the appeal should be dismissed with costs. 59 In his reasons, the primary judge observed that, having regard to his reservations concerning the Tribunal's alternative conclusion on the assumption that the appellant was an Angolan national, it would be unconscionable and unthinkable, if the Minister were to encounter difficulty in returning the appellant to Kenya, to consider causing him to be removed to Angola. Counsel for the Minister assured the Court that he had no reason to believe that such a course was under contemplation. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate: Dated: 15 February 2002 Counsel for the Appellant: The Appellant appeared in person with an interpreter.

Solicitor for the Respondent: Australian Government Solicitor

At a glance

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Judgment (27 paragraphs)

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Cases Cited (5)

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