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[2000] FCA 1765
Federal Court of Australia
2000-12-08
Nicholson J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant is a citizen of Kenya who arrived in Australia on 4 September 1999. He seeks review of a decision the Refugee Review Tribunal ("the Tribunal") affirming a decision of the respondent not to grant him a protection visa. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act").
The legislative context 2 Under s 36(2) of the Act a non-citizen in Australia is eligible for a protection visa if that person is someone: "… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refuges Protocol is the Protocol Relating to the Status of Refugees 1967. The expression "Convention" will be used to mean the Convention as amended by the Protocol. Article 1a(2) of the Convention defines a "refugee" to be any person who: "…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it". Tribunals reasons and findings 3 The Tribunal's reasons state that the applicant's initial claims were that he had left his country of nationality because of corruption, absence of human rights and danger from fighting. In a statutory declaration he had claimed he was a Kenyan national who had falsely assumed a Somali identity. He had grown up in Mombassa. He claimed his father was a political leader of the Shirikisho Party which was an opposition party to the Kanu Party in power. On 13 August 1997 one of the Shirikisho Party meetings was interrupted; the Kanu office and the Likoni police station office was set on fire because of the leadership of his father in the Shirikisho Party. The applicant did not go home and went to Somalia. He claimed he feared if he returned to Kenya he would be prosecuted without trial and tortured because they knew he was his father's son and a guerilla throwing over the government. 4 At a subsequent interview he said that his twin brother had been arrested at the same meeting; neither he nor his father had returned to the family home and he had left Kenya in May 1998. 5 At the hearing the applicant again said he had left Kenya in May 1998. He had spent most of his life in Mombassa and Likoni, a short distance away. He had claimed to have been involved in politics since he was aged 19 although never a member of a political party. He had not voted in the election in 1997 because he had been imprisoned at that time. He claimed to have been arrested on 11 August 1997 but released by people two days later. The applicant was of the Digo tribe and was renting a house to some Kenyan immigrants from Mombassa. On 13 August 1997 it was announced tribal immigrants living in Mombassa who were not of the Digo tribe would be punished unless they left the area. He had therefore told the tenants to get out. They complained to the police who arrested the applicant for breaking Kenyan law by locking out a tenant. 6 At the hearing the applicant said he would expect difficulties upon return to Kenya because he ran from prison and joined the group who released him; his mother was arrested; he had left Kenya illegally; he might face punishment from his tribe because he left Kenya instead of helping the tribe; and police might ask him about the disappearance of 42 guns from the police station at the time he was released from jail. 7 The Applicant said that he could not relocate to another part of Kenya because he could not live away from his tribe as he would have no one to protect him. 8 After reviewing country information the Tribunal made the following findings:- (1) The applicant is a Kenyan national. (2) In and around August 1997 there was serious trouble in Mombassa and Likoni. (3) The applicant was arrested as he claimed because he broke the law in Kenya by locking out tenants from the home he was renting to them. His arrest was a direct response to the fact that he broke the Kenyan law. (4) The applicant fled arrest from a law of general application. There is no evidence to suggest that the general application is enforced selectively or for a selective purpose and that such selectivity can be attributed to a Convention purpose. (5) The Tribunal was not satisfied on the basis of the evidence before it that the arrest of the applicant's mother was related to any Convention reason. (6) There was no evidence to suggest the applicant is a serious political activist. (7) The applicant's father encountered difficulties but there was insufficient evidence for a finding to be made that it is related to politics or that the applicant would be implicated in any way in his father's activity. (8) The applicant has not produced evidence to indicate he would face persecution for a Convention reason upon return to Kenya. The applicant's fears are related to criminal matters and not Convention related. He has no well-founded fear for any Convention reason as a result of his escape from prison. (9) There was no evidence to suggest the applicant would expect difficulties on return to Kenya because he had left there illegally. (10) The Tribunal was not satisfied the applicant will face persecutory treatment from his tribe or that the police would not be prepared to protect him should this occur. (11) The applicant has sufficient skills to relocate within Kenya should he consider it necessary to do so. 9 The Tribunal therefore concluded that the applicant was not a person to whom Australia has protection obligations so that he did not satisfy the criteria set out in s 36(2) of the Act.
Membership of a particular social group: s 476(1)(a) and s 430(1)(c) and (d) 10 The first ground of appeal, which was amended at the hearing, alleges that procedures that were required to be observed, were not observed: s 476(1)(a) of the Act. The two limbs of the ground were formulated with reference to s 368 of the Act but it was accepted in the course of argument that these should be read as a reference to s 430 of the Act. 11 The first limb of the ground is that the Tribunal failed to comply with that section in that it had not made a finding or given reasons in respect of a material fact, namely whether the applicant possessed a well-founded fear of persecution because of membership of a particular social group. 12 The submissions for the applicant on this aspect of the procedural ground start from the uncontested proposition that the Tribunal was under an obligation to make findings of questions of fact central to the case raised by the material and evidence before it, so that s 430 is to be seen as setting a standard of decision-making required to be observed by the Tribunal; Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 at 481 par [48]. It is submitted that the material before the Tribunal raised the material question of whether the applicant was a member of the particular social group of "coastal people". 13 In support of this submission attention was directed to material before the Tribunal which said that on the night of 18 August 1997, security forces had shot dead a Mr Makuti of Kanu as he lead a rampaging gang of 150 youths seeking up-country Kenyans and murdering them. It was said that police interrogation of the suspects revealed that the gang behind the violence had been recruited, armed and trained in the coastal hinterland with orders to keep the coast safe for Kanu. A further piece of country information dated 18 September 1997 reported that unrest in Kenya's coastal province had forced some 100 Kenyans to flee to the Tanzanian archipelago of Zanzibar. The information reported allegations that the Government had failed to stop the escalating massacres of citizens and destruction of property, restore security and peace and bring back life to normal. It is submitted that the country information was evidence that the ruling party in Kenya had inspired ethnic troubles in the coastal region generally with the sole purpose of keeping the Government in office. The contention founded on this for the applicant is that in situations of "mob" violence there is a real chance the persons (including the applicant) will suffer harm or injury for no particular reason (other than their membership of the particular social group of coastal people) and consequently lead to a fear of such by them. 14 In contending that this was an issue which was material before the Tribunal the case of the applicant relies upon what was said by Dawson J in Applicant A v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225 at 241 to the effect that a particular social group is a collection of persons who share certain characteristics or elements which unite them and set them apart from society at large so that they are a cognisable group within their society. 15 For the respondent it is submitted that the decision in relation to the applicant did not depend in practical terms on the issue of his membership of a particular social group so that that question was immaterial. Alternatively, it is submitted that even if it were material evidence that the applicant was a resident of the coastal region that would not be evidence that there was a group sufficiently set aside from society at large. Furthermore, it is submitted neither his arrest nor his release could arguably be said to have been as a consequence of his membership of the particular social group contended for. 16 Whether or not a fact is material is to be decided in accordance with the decision of the Full Court in Singh. It is apparent from the reasons of the Court (Black CJ, Kiefel, Sundberg, Katz and Hely JJ) at 482 - 483 that materiality will be influenced or determined by the way the Tribunal has approached the case as revealed by its reasons for decision. Materiality will not be dependent alone upon how an applicant chooses to present the issues. The fact is material if the decision in the practical circumstances of the particular case turns upon the existence of that fact. The question is what is objectively material to the question of whether a person is in truth a refugee. 17 In its reasons the Tribunal acknowledged the country information said to be material when it stated that in late 1997 ethnic violence in the coastal region had occurred and local authorities had generally done little to stop it and appear to have instigated much of the violence in the coastal region. 18 The present is not a case in which the applicant chose to make material the issue of whether he would be persecuted for being a member of a particular social group of coastal persons. None of his claims raised in a practical way an association between his possible identity as a coastal person and his fear, said to be well-founded. 19 In its reasons the Tribunal said that the Shirikisho political party had no particular ideology; was a regionally based party seen as representing certain ethnic grouping; it could be described as a coastal national party which promotes the interest of coastal people and is perceived as tapping into the general resentment of coastal people against up-country people who have settled on the coast and benefited from the economic opportunities in the coastal area. However, it also said this sentiment was shared by other parties, notably Kanu, the ruling party, which sought at the time of the election to exploit the sentiment on the coast for its political ends. Further, there is no suggestion that the Shirikisho party itself was involved in organising or recruiting perpetrators of the violence. Indeed it was not registered until November 1997 and could not have played any part in the violence which took place in August 1997. 20 If the Tribunal was entitled to its conclusion that the applicant was arrested because of non-compliance with a law of general application (see below) his membership of the alleged particular social group would not be material as it could not be the source of the conduct the applicant claimed was the foundation of his well-founded fear. 21 In all those circumstances I do not consider the issue of whether the applicant was a member of a particular social group of coastal people was raised in a practical way. It follows the Tribunal did not fail to make findings on this aspect in contravention of s 430.
Applicant's imprisonment 22 The first relevant ground of appeal to the applicant's imprisonment is a second aspect of the procedural failure ground, namely that the Tribunal failed to comply with s 430 of the Act in that it did not consider the imprisonment of the applicant upon his arrest on 11 August 1997 as material to its finding. The proposition advanced here is that the Tribunal failed to link the applicant's arrest with his imprisonment. I accept the submission for the respondent that a fair and proper reading of the reasons of the Tribunal shows that not to be the case and that the Tribunal considered the arrest and detention as interrelated events. 23 Then it is contended in the grounds of the applicant that the Tribunal's decision that the applicant was arrested because he broke a law of general application was a finding on which there was no evidence or other material to establish it. Alternatively, it is contended the Tribunal concluded the applicant was being punished for such a law when that fact did not exist. 24 Section 476(1)(g) of the Act permits this Court to review a tribunal decision on the ground "that there was no evidence or other material to justify the making of the decision." However, s 476(4) provides that such ground is not to be taken to be made out unless (a) - then follows an inapplicable condition - or (b) "the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 25 The provisions of s 476(4) are identical to those in s 5(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The operation of s 5(3)(b) was considered in the judgment of Black CJ with which Spender and Gummow JJ agreed, in Curragh Queensland Mining v Daniel (1992) 34 FCR 212. At 220-221 Black CJ said: "Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance." At p 224, Black CJ concluded that the requirement of establishing that a particular fact did not exist is to be satisfied by admissible evidence in Court and that the evidence on the issue is not limited to material which was before the decision-maker. 26 This decision in Curragh has been accepted and applied in the context of the Act - see Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 962 and Vichlenkova v Minister for Immigration & Multicultural Affairs [1999] FCA 1338. In Fernando, Heerey J raised the analogy of a net which does not necessarily fail because one or more of its constituent strands fail so that if there were many strands to a tribunal decision, absence of evidence on the particular fact may not necessarily provide a proper ground for review. In my view that is restating by way of a further analogy what was said by Black CJ in Curragh at 221 as to the need for the absence of any parallel links. 27 There is a further point made in the authorities and it is that even if the requirements of s 476(4)(b) are satisfied, it is still necessary for an applicant to show in terms of s 476(1)(g) that there was no evidence or other material to justify the making of the decision. This is making the same point as in Curragh at 221 - see also Pat Tai Choi v Minister for Immigration & Multicultural Affairs [1998] FCA 1156 and Tuli v Minister for Immigration & Multicultural Affairs [1999] FCA 271. 28 For the applicant it was submitted that the findings of the Tribunal on this respect relied on evidence from the applicant that police arrested him for breaking Kenyan law applicable to the locking out of the tenants. Furthermore, there was other pieces of evidence before the Tribunal, namely that lengthy pre-trial detention is a problem in Kenya and that police arbitrarily arrest and detain citizens. In that context it is submitted that there was no evidence before the Tribunal that his arrest was a reason for his detention. I have already accepted that the Tribunal's reasons found the link between the arrest and the detention. 29 As to the alleged absence of any evidence of the law, there were two pieces of evidence. There was the evidence of the applicant himself to which the Tribunal referred. 30 In the absence of any evidence that a law is not a law of general application (as here), the Tribunal was correct to ask itself the question whether the law was being applied in a discriminatory manner or for a discriminatory purpose, and, having concluded there was no evidence of discrimination and there being no challenge to that finding, the Tribunal was correct in concluding the Convention was not applicable. 31 Importantly the obligation on the applicant to establish that the particular fact in any event affirmatively arose did not exist. The applicant not having done this, the Tribunal was entitled to rely on the two pieces of evidence.
Conclusion 32 For these reasons I consider the application should be dismissed. I certify that the preceding thirty two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.
Associate: Dated: Pro bono Counsel for the Applicant: Mr M F Rynne
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 26 October 2000
Date of Judgment: 8 December 2000
Suleiman
Minister for Immigration & Multicultural Affairs
(2000) 98 FCR 469
(1997) 190 CLR 225
(1992) 34 FCR 212