Kalala v Minister for Immigration & Multicultural Affairs

Background 6 On each occasion on which the applicant's application for a review of the delegate's decision has been before the Tribunal, the Tribunal has held a hearing at which the applicant has given oral evidence, made written submissions and presented documentary material. 7 The fourth Tribunal, in setting out the applicant's claims for refugee status, took the somewhat unusual step of adopting what it called Merkel J's "summary of the applicant's claims". It did not set out its own understanding or analysis of the applicant's claims, but rather set out the four paragraph section headed "Background" in Merkel J's Reasons for Judgment on 19 November 1999. The Tribunal then said: "The Applicant gave evidence at three hearings before the current Tribunal which was consistent with the above summary and generally with the evidence he gave at the earlier three differently constituted hearings." The applicant was critical of this method of setting out the claims for refugee status made by the applicant before the Tribunal. He contended that in one important respect the evidence given before the Tribunal was not consistent with Merkel J's summary or with the evidence given at the earlier hearings. 8 The procedure adopted by the Tribunal was inappropriate and had the potential to distort the nature of the task it had to undertake. Merkel J relied for his analysis of the applicant's claims upon the evidence and material which was before the third Tribunal whose decision he set aside. Further, his Honour presumably summarised the applicant's claims by reference to matters which had particular relevance to the grounds of review then raised before him. The hearing before the Tribunal, differently constituted, to which the applicant's application for review of the decision not to grant a protection visa was remitted, was a hearing de novo and, for that reason, it was inappropriate to rely upon a summary of claims made at a previous Tribunal hearing. The claims may have been presented differently and considered differently by the previous Tribunal and different grounds of review may have been raised. 9 Indeed, in one important respect, the applicant's claims before the fourth Tribunal were different from the claims made before the previous Tribunals. Previous Tribunals had rejected the applicant's claim that he had been present at a refugee camp at a place called Tingi Tingi where he had witnessed atrocities. As appears hereafter, the applicant sought before the fourth Tribunal to explain inconsistencies between available country information and his claim by saying that if he was not at the place called Tingi Tingi he was at another place, which he understood, erroneously, was at Tingi Tingi, where he nevertheless witnessed atrocities. 10 In the events which have occurred, no error has arisen as a result of the Tribunal adopting this procedure because the Tribunal considered the alternative camp claim, but it is not a procedure which is to be encouraged where a decision of the Tribunal is set aside by the Court and the matter remitted to the Tribunal, whether constituted differently or otherwise, for re-hearing. 11 As the Tribunal's findings and reasons follow from its recitation of Merkel J's summary of the applicant's claims I set out that summary as incorporated by the Tribunal in its reasons: "The applicant's claim for refugee status was based on the following claims made by him. In late January 1997 the Government of Zaire, headed by President Mobutu, called for volunteers to go to the refugee camps in the east of Zaire to assist Rwandan refugees. On or about 24 January 1997, in response to that call, the applicant joined the Red Cross and subsequently went to the Tingi Tingi refugee camp in order to provide general assistance to refugees under the auspices of the Zairean Red Cross. Rebel forces under the command of Laurent Kabila took control of the camp and killed significant numbers of the refugees. Mans Kabangu, the applicant's friend and supervisor, had taken photographs of the killings and atrocities committed by Kabila's troops at, or in the proximity of, the camp. The applicant said he had witnessed the atrocities and killings. In about March 1997 Kabila's troops became concerned that United Nations representatives were to inspect the Tingi Tingi camp and might become aware of the killings and atrocities that had been committed by them. Consequently, anyone who was perceived as willing or able to provide evidence of the killings and atrocities to the United Nations representatives had reason to fear possible reprisals against them by Kabila's troops. On 5 May 1997 some of Kabila's soldiers came to the tent which the applicant shared with Kabangu and discovered the photographs in Kabangu's bag. The soldiers took Kabangu away after beating him. The applicant became frightened for his own safety and fled the camp. After reading of a report in a newspaper that Kabila's soldiers were searching for him and hearing that Kabila's soldiers made threats to his family when visiting his cousin's home seeking the applicant, the applicant managed to cross the border into Zambia and travel by truck to South Africa. After working in South Africa the applicant obtained a false South African passport which he used to travel to Australia. In support of his claims the applicant provided to the RRT two certificates of the Red Cross of the DRC which had been obtained by the Australian Red Cross at the request of the applicant. The certificates confirmed that the applicant had worked as a volunteer for the Red Cross at Tingi Tingi at the relevant time. The applicant also relied upon an article published in 'Le Phare', a newspaper published in the DRC, on 6 March 1998. The article reported that five people, three in military fatigues and two in civilian clothing, visited the applicant's family home claiming that the family was hiding the applicant who was said to be 'a dangerous enemy'. The article also stated that the visitors warned the applicant's father that 'they would return and woe betide him' if the applicant was later found to be hidden by him."

The Tribunal's reasoning 12 After identifying relevant legislative provisions and applicable principles of law and setting out the summary of the applicant's claims, the Tribunal focused upon what it saw as the key issue before it. As the applicant has submitted that, in identifying the key issue as it did, the Tribunal failed to deal with the totality of the applicant's case, it is necessary to refer to relevant passages in the Tribunal's reasons. The Tribunal said: "The central issue, as appears from the summary above, is whether the Applicant was at Tingi Tingi camp and was believed by Kabila's forces to be able to testify against them regarding killings and atrocities at that camp. The Applicant himself and through his solicitors/advisers has conceded that his account of the 'Tingi Tingi' camp is not consistent with the country information extracts the Tribunal referred him to and they have not produced any country information that supports the Applicant's 'Tingi Tingi' camp. He and his solicitors/advisers have sought to explain the inconsistencies (which as will be seen from the Applicant's 10/4/00 submission must be fairly characterised as major) by his being in a 'rogue' Tingi Tingi camp ie not the camp near the Tingi Tingi village, but one some 130 kilometres away near the Zaire river. In the end this has become the pivotal issue in this case and the Tribunal will refer to specific country information under the next heading …" (The Tribunal explained later in its reasons that it used the term "rogue" in the sense of "a camp away from and not conforming with the main group of camps".) The Tribunal then set out an extract from available country information which described the problems in DRC in 1997 and 1998. 13 There were a number of documents before the Tribunal relating to the applicant. Some of the documents were not presented to the Tribunal by the applicant but they were available to the Tribunal as they had been in the applicant's possession when he entered Australia on 18 February 1998. The Tribunal considered the documents: "… in light of what became the central issue; ie was the Applicant in Tingi Tingi in early 1997 (for it was only if he was there, that the events leading to the claims of his being sought by Kabilia's forces to suppress evidence of atrocities could have occurred)." The Tribunal then considered seriatim twenty‑one separate documents, making findings as to whether it accepted the documents as genuine and, where relevant, determining their relevance and significance in relation to the applicant's claims. 14 It will be necessary shortly to consider one of these documents and the Tribunal's reasoning in relation to it. This is the article in the "Le Phare" newspaper dated 6 March 1998 entitled "Des visiteurs trčs spéciaux sur l'avenue Kalombo" (Very special visitors on Avenue Kalombo). 15 As can be seen from the passage in the Tribunal's reasons set out in par 12 above, the applicant claimed that the killings and atrocities which he had witnessed had occurred at the Tingi Tingi camp, although his account was not consistent in a number of respects with country information available to the Tribunal. The applicant had raised before the Tribunal the possibility that the killings and atrocities he had witnessed, and which he thought were committed at a refugee camp called Tingi Tingi, might have occurred at another camp which he thought was called Tingi Tingi but was not in fact Tingi Tingi. The applicant submitted that the Tribunal did not, in its reasons, consider, deal with or determine this alternative possibility and I will return to this issue. I mention the matter at this stage because the Tribunal in a number of passages in the course of its reasoning referred to what it called a "rogue" Tingi Tingi camp which was not the camp near the Tingi Tingi village but was a camp some 130 kilometres away near the Zaire river. 16 The Tribunal did not accept the applicant's claims to have been either in the Tingi Tingi camp or in a camp some 130 kilometres away on or near the Zaire river and it rejected his claims that he had witnessed killings and atrocities there. 17 The Tribunal's ultimate finding was that there was not a real chance of the applicant being persecuted in the foreseeable future for a Convention reason if he returned to DRC and it found that he did not have a well‑founded fear of persecution for a Convention reason.

The review 18 The applicant relied upon two grounds of review: · the decision involved an error of law being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal; · the decision was not authorised by the Act in that the Tribunal constructively failed to exercise the jurisdiction conferred on it by the Act. These grounds were predicated on the same particulars which were that: · the Tribunal confined itself to the question whether the applicant was at Tingi Tingi camp and not whether he might have been at another camp which was not at Tingi Tingi but which he thought was called Tingi Tingi, albeit that it was located some distance away from Tingi Tingi; · the Tribunal failed to consider whether the events described in the "Le Phare" article took place, if they did occur what was the motivation for them, and whether they gave rise to a well‑founded fear of persecution. 19 The "Le Phare" article described an incident where five persons turned up at 11.00 pm at the applicant's parents' home and threatened them "for hiding a dangerous enemy answering to the name of Kalala Muntshimans". The article stated that the visitors assaulted the applicant's father and then left warning him that they would return "and woe betide him if he was found to be in fact hiding their quarry". 20 The applicant's primary submission was that the Tribunal failed to deal with the totality of his case because, although it dealt with the issue whether he was at Tingi Tingi camp in early 1997, it did not determine whether he might have witnessed the killings and atrocities at another camp whose name he did not know but which he thought was called Tingi Tingi. 21 If the Tribunal had confined itself to determining only whether the applicant was at Tingi Tingi camp and had not considered whether he might have been at another camp, not called Tingi Tingi but whose name was unknown to the applicant, it would not have dealt with the whole of the applicant's case. It is apparent from the transcript of the hearing conducted by the Tribunal on 20 March 2000, and the applicant's subsequent written submission dated 10 April 2000, that the applicant had raised the issue that he might have been at a place other than the camp called Tingi Tingi where he witnessed the atrocities. 22 However, I am satisfied that the Tribunal recognised that there was an alternative basis upon which the applicant was saying that he had witnessed the killings and atrocities, namely that he may not have been at Tingi Tingi but rather was at another camp. The Tribunal dealt with this alternative basis in a number of passages in its reasons. 23 Although in an early passage in its reasons the Tribunal posed "the central issue" before it as being whether the applicant was at Tingi Tingi camp, it did not confine its consideration to that issue. In several passages thereafter the Tribunal identified the alternative claim made by the applicant. In this context the passage referred to in par 12 above merits repeating: "He and his solicitors/advisers have sought to explain the inconsistencies (which as will be seen from the Applicant's 10/4/00 submission must be fairly characterised as major) by his being in a 'rogue' Tingi Tingi camp ie not the camp near the Tingi Tingi village, but one some 130 kilometres away near the Zaire river. In the end this has become the pivotal issue in this case and the Tribunal will refer to specific country information under the next heading …" When the Tribunal referred to "the pivotal issue", it was referring to the issue whether the inconsistencies between the available country information and the applicant's claim to have been at the camp at Tingi Tingi could be explained by the fact that the applicant was rather at another camp some distance away which was not at Tingi Tingi. 24 One of the documents in the possession of the applicant at the time he arrived in Australia comprised laboratory test results for tests performed on the applicant in South Africa. The Tribunal accepted that the documents were not genuine and were not determinative of the location of the applicant on the date the samples were collected in January 1997. However, in the course of its reasoning, the Tribunal observed that the test results were important, not because of the results themselves, but that they were collected on 29 January 1997: "… when the Applicant claimed he was in 'Tingi Tingi' camp in the DRC (or what he now claims he knew of as Tingi Tingi, a camp some 130 kilometres away on the Zaire river)." 25 In the course of considering the genuineness of a document said to be produced by the DRC Red Cross (which the Tribunal found to be genuine), the Tribunal observed that it did not accept the submission that Tingi Tingi camp included the "rogue Tingi Tingi camp" which the applicant conceded was 130 kilometres away from the Tingi Tingi camp. 26 The Tribunal referred to a video of a news item recorded by a friend of the applicant in South Africa and did not accept it was corroborative: "of the Applicant's claims to have been in the 'Tingi‑Tingi camp' or a camp he knew as Tingi‑Tingi" 27 The Tribunal sought to test the applicant's submission that he may have been at another camp, not called Tingi Tingi but which he thought was called Tingi Tingi, but it was unable to obtain any further information from the International Red Cross in Kinshasa. It was in this context that the Tribunal made a specific finding whether such a camp existed when it said: "The Tribunal approached the country information without any preconceived ideas, but slowly and inexorably reached the conclusion that the country information was overwhelmingly inconsistent with the Applicant's 'rogue' Tingi Tingi camp." The Tribunal then set out some of that country information, analysed it by reference to what it called the "rogue" camp, and noted that the applicant had not produced any Red Cross, United Nations High Commission on Refugees or other country information to support what it called the "rogue Tingi Tingi" claim. 28 It can therefore be seen that there were a sufficient number of references to the claim in relation to the alternative camp to demonstrate that the Tribunal did not confine itself to the question whether the applicant was at Tingi Tingi camp. Rather, the Tribunal recognised, confronted and rejected the claim that the applicant had been at a camp, which was not at Tingi Tingi although he understood it was, at a place some distance away from Tingi Tingi at or near the Zaire river. The applicant's first attack on the Tribunal's reasoning is not made out. 29 The applicant's second attack centred on the Le Phare newspaper article which had been the subject of consideration by Merkel J: [1999] FCA 1595. In substance, Merkel J found that the earlier Tribunal had not made findings as to whether the events described in the article had occurred and that the Tribunal had not considered whether, if the truth of the events in the article were accepted, they supported the applicant's version of events at the Tingi Tingi camp and provided an additional reason for the applicant's fear of political persecution. The applicant submitted that the Tribunal had fallen into the same error. 30 It is therefore necessary to consider with some care the Tribunal's reasoning in relation to the events described in the Le Phare article. The Tribunal accepted and found that the article was genuine but found: "that there is nothing in the article on which the Tribunal could base any factual findings material to a current Convention claim." The Tribunal considered the possibility that when the article was published someone who identified the applicant may have contacted the authorities about him if they made an assumption that the persons involved were connected to the government and acting in some official capacity. The Tribunal, nevertheless, found that there was not a real chance of this happening in the foreseeable future if the applicant returned, given that more than two years had elapsed since the date of publication of the article. 31 What is important, in the context of the submission that was made, was that the Tribunal found: "… that there was nothing in the article to link it with the Applicant's claim to have been in Tingi Tingi or indeed with any other Convention reason (noting of course that the Applicant has only ever based his claims on the Tingi Tingi incident)." In this passage the Tribunal was making a finding not only in relation to the Tingi Tingi incident but also in relation to any other circumstance or fear relating to persecution which might be thought to arise out of the incident referred to in the article. This is made clear in the succeeding three paragraphs where the Tribunal said: "The Tribunal finds that the article does not refer to events at the Tingi Tingi camp or to the camp itself. The Tribunal finds that the article does not identify the persons alleged to have attacked the Applicant's father, nor, as importantly, whether their motivation for seeking the Applicant was for a Convention reason. The article does not mention motivation other than to refer to the Applicant as 'a dangerous enemy'. It may mean a personal enemy of the attackers or of someone else or some other entity, but the Tribunal finds that there is insufficient material available to the Tribunal for it to decide this. The Tribunal finds that the article does not identify the alleged assailants as 'Kabila's agents', nor are there sufficient facts available to draw that inference. The Tribunal finds that there is no evidence before it to enable it to make any findings of fact about the following words alleged to have been uttered; 'We are hot on his trail since Goma and now we have come to learn that all this time you have been hiding him.'" 32 The applicant submitted that the Tribunal had rejected the applicant's claim to have been at Tingi Tingi camp before it considered the Le Phare article. He submitted that the Tribunal had to consider the relevance of the article to the applicant's claim to have been at Tingi Tingi camp. It was said that the two were interrelated. I do not accept the submission that the Tribunal had made its ultimate finding on the Tingi Tingi claim before it turned its mind to the Le Phare article. The Tribunal considered that article in the course of considering a sequence of twenty‑one documents. It did not make a final finding in relation to the Tingi Tingi claim or the alternative camp claim until it had considered and analysed all those documents. The extracts of the Tribunal's reasoning in par 31 above demonstrates that the Tribunal considered and evaluated the relevance of the article in its assessment of the Tingi Tingi claim and the alternative camp claim. 33 I am therefore satisfied that the Tribunal addressed the issue whether the events described in the article gave rise to a ground of fear of persecution for a Convention reason which was unrelated to, and distinct and separate from, the circumstances claimed to have occurred at a camp. 34 The applicant was also critical of the Tribunal, not only for the last paragraph in the passage referred to in par 31 above, but also for its observation that: "Some group of people may have been after the Applicant for an unknown reason, it is not appropriate for the Tribunal to guess and the Tribunal finds that the article is not supportive of the Applicant's claim to have a well‑founded fear of persecution for a Convention reason." The applicant submitted that in these passages the Tribunal was refraining from making findings on material matters in respect of which it was bound to make findings. In particular, it was said that the Tribunal had not made a finding as to the motivation of the visitors in coming to the applicant's father's house or a finding whether that motivation was Convention related. 35 When considering this submission, it is important to bear in mind the observations of the majority of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271‑272: "When the Full Court referred to [the delegate's reasons being entitled to a] 'beneficial construction', it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [(1993) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be 'concerned with looseness in the language … nor with unhappy phrasing' of the reasons of an administrative decision‑maker. The Court continued: 'The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.' These propositions are well settled. They recognise the reality that the reasons of an administrative decision‑maker are meant to inform and not to be scrutinised upon over‑zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed." In Baxter Healthcare Pty Ltd v Comptroller‑General of Customs (1997) 72 FCR 467, Burchett J referred to this passage and said at 469: "The point is that judicial review of decisions of the Administrative Appeals Tribunal is not concerned with technical legal niceties, looseness of language, or infelicities of expression but with whether a decision is infected in substance by some error of law." These observations are relevant to the applicant's submission because there is an initial attraction in the argument that the Tribunal's findings that: · "there is insufficient material available to the Tribunal for it to decide this", that is that the applicant was a personal enemy of someone, · "there is no evidence before it to enable it to make any findings of fact about the following words …", · "it is not appropriate for the Tribunal to guess …", demonstrate that the Tribunal was refraining from making findings on material issues. 36 But when one considers the Tribunal's reasoning in relation to the Le Phare article as a whole it is apparent that the Tribunal had concluded that the material before it did not warrant the finding or conclusion that the motivation of the visitors, in coming to the applicant's parents' house, was for a Convention related reason, whether related to the applicant's claim that he had witnessed atrocities at a camp, or whether related to some other reason bearing upon political persecution. In short, the Tribunal found that it was not satisfied that the motivation of the visitors was for a Convention related reason although it could not determine, from the material available to it, what was the basis for that motivation. 37 Notwithstanding the language used by the Tribunal, I am satisfied that the Tribunal made a specific finding that the events described in the article and its contents were not such as to give rise to a well‑founded fear of persecution for a Convention reason. To that extent the Tribunal addressed, and made findings in respect of, the relevant material issues placed before it. 38 Although the Tribunal may not have made a specific finding as to what was the motivation of the persons who visited the applicant's father's home, it addressed the issue of the motivation of those persons, noting that the article did not mention motivation other than that the persons referred to the applicant as "a dangerous enemy". The Tribunal effectively excluded any finding of motivation based on the applicant's claim to have witnessed atrocities at a camp by finding that the article did not identify the alleged assailants as "Kabilia's agents" and that it could not draw an inference to that effect. 39 The application will be dismissed with costs. 40 The Court is indebted to counsel for the applicant who appeared pro bono. The Court was greatly assisted by counsel's detailed written submissions and his oral presentation of argument. The community is well served when counsel undertake to appear for litigants such as the applicant pro bono and devote significant time and effort to representing their client's interest. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Counsel for the Applicant: R M Niall - appeared pro bono

Solicitor for the Respondent: Australian Government Solicitor