Tedella v Minister for Immigration & Multicultural Affairs

introduction 1 This is an application by Solomon Kahsay Tedella, the applicant, for a review of the decision of the Refugee Review Tribunal (the Tribunal) made on 18 February 2000 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs, the respondent, not to grant him a protection visa. This application is to be distinguished from the separate claim brought by the applicant's wife, Ms Abera.

Background and claims 2 The applicant is a citizen of Ethiopia, born on 26 April 1967. He worked for Medecins Sans Frontiers from 1986 to 1995. In 1995 he began work as a health manager in Babile. Babile is in Region 4 which is ethnic Oromo and very near where the Oromo Liberation Front (OLF) operated. The OLF were originally part of the Transitional Government of Ethiopia (TGE) but in due course went their own way and wanted to split Region 4 from the rest of Ethiopia. As a result, the Government started to round up Oromo people. In Region 4, there was armed conflict between the OLF and TGE. Medecins Sans Frontiers attempted to assist the community affected by the conflict by providing medical aid to civilians. 3 The applicant claimed before the Tribunal that he was targeted by the military who accused him of supplying medicine for the OLF. He claimed that, on or about 20 April 1996, he was taken by the military to Central Criminal Investigations in Addis Ababa. He claimed to have been there detained and interrogated about the supplying of drugs to the OLF. He claimed that, a few days later, he was beaten until he fell unconscious. The Tribunal explained what happened then as follows: "The applicant claimed that on 6 May the commander explained that he was suspected of being involved in the OLF and that he was being released under close supervision provided he could find 40,000 birr for bail. He claimed that his father provided this money. He was released on 8 May 1996. The applicant claimed that he was told he should be available and should not leave the capital. He claimed he was told he was a spy and they intended to follow him. The applicant claimed that on 11 May he was asked to attend the prison again to collect the piece of paper attached to his submission. He claimed that the prison must provide this paper to show how long he was in prison for." 4 The applicant claimed that he had not told Medecins Sans Frontiers about his detention, although he reported back to them in Addis Ababa after his release. He claimed he could not tell his employer what had happened because he feared that the military would torture him again and he did not trust his colleagues as they were from different ethnic backgrounds. 5 The applicant applied for a visa to travel to Australia in March 1996 and his wife arrived in Addis Ababa in May 1996. They arrived in Australia on 17 July 1996. 6 The applicant relied on two documents to support his case and, in particular, his claim to have been detained. As some doubt had been cast on some aspects of the translation of the documents into English from Amharic, some alterations were made by the translator to the translation on 17 August 1999 and forwarded to the Tribunal on 25 October 1999. The text of the first of these documents, dated 11 May 1996, is as follows: "TO WHOM IT MAY CONCERN Based on the closed follow up and investigation done by the Government that the person called: Mr Solomon Kahsay TEDELLA had been agitating against the Government then caught by Police Officers. Therefore, from 22nd of April up to 8th of May 1996 he was under police custody in Central Criminal Investigation, while all the necessary investigation and evidence has been taken, then the Government released him on 40000 Ethiopian Birr (Forty Thousand Ethiopian Birr) bail that he should attend the office any time when the Government needs him. 'With greeting' Captain Tsegaye MULATU Chief of Central Criminal Investigation Section" 7 The text of the second document, dated 28 January 1997, stated: "To: Mr Solomon Kahsay TEDELLA Where at his Address According to the Government's follow up carried in the past that you were agitating against the government. It was cleared that you were caught by Police Officers and keep as a prisoner in Central Criminal Investigation, from 22nd of April up to 8th of May 1996. Investigations has done while in police custody and then he was released based on, to be appear in the office when an order send to him. In addition the Government released him on 40000 Ethiopian Birr (Forty Thousand Eth. Birr). Based on the follow up done by the Government that he was called several times to attend the office and he could not be found at his home for further investigation. Although the Criminal Investigation Section has decided that your private property which is found with the family and the 40000 Ethiopian Birr (Forty Thousand Eth. Birr) bail should be paid to the Government. We want to let you know that within one month of this letter served, you have to go and report to the Criminal Investigation Section, otherwise the peace squad will search you and the necessary measure will be taken. 'With Greeting' Captain Tsegaye MULATU Chief of Central Criminal Investigation Section" 8 The documents in the form of the first translation were examined by the Document Examination Unit which provided a report dated 18 June 1997 as follows: "I have examined the documents referred to above and make the following observations: · they are two documents typed in Ethiopian script on white, non watermarked paper. One is A4 size, which is 297mm X 210mm, while the other is 295mm X 211mm., · there is a definite probability that the same typewriter has been used in the preparation of both documents. This is evidenced by the overlaying of segments of typing which are common to both letters in the Video Spectral Comparator (VSC). (Refer to Attachment 1), · different reference numbers are used on both letters which I would consider unusual given that both letters allegedly contain official information from the Central Police Criminal Investigation Section, are about the same person and set of circumstances, and are written by the same person. However, not being aware of Ethiopian police practices in this regard I cannot comment with any certainty whether this is irregular or not, · whilst I am not a handwriting expert it is obvious, under microscopic examination, that the reference numbers and dates written on both documents have been placed on those documents by two different hands. For example, on the letter of 19/5/1989 [sic] the eights are commenced at the top left hand side of the upper body of the number, and on the other letter they are started and finished on the lower right hand side of the upper body of the digit. The four and nine are also completed differently on both letters. All the written details on the letter of 19/5/1989 appear to be written in a more flowing or relaxed style, · the signatures are similar although not identical, however, both appear to be written fluidly and neither displays characteristics of being copied from the other, · the text of the letter dated 2/9/1988 [sic] has been altered by white-out and then overtyped. The significance of this is not known. CONCLUSION Examination of these letters raises more questions than it answers. It is impossible to state categorically whether both of these letters are authentic or fake. They could have been typed anywhere and by anyone. The one thing I believe to be feasible is that they were most probably typed on the same typewriter. If this is so then why have the reference numbers and dates been placed on the documents by different people when the author of each letter is supposed to be the same person? Why also would a police department use irregularly sized paper when preparing correspondence? Although the difference in paper size is minimal it would be expected that the same size paper would be readily available within this government organisation. The actual content of and purpose of each letter seems strange. Would a captain in the Criminal Investigations Section of the Ethiopian police write a 'TO WHOM IT MAY CONCERN' letter and end it with the expression of 'With greeting'. Similarly, would the same source write what is basically an intimidating letter to an offender, address unknown, and end it with the same expression? Any scenario is possible but I believe it is impractical to rely on the letters at face value and, unless supported by further and more reliable information, each should be viewed with caution." 9 Mr Niall of counsel, who appeared on behalf of the applicant, explained that there had been an earlier Tribunal hearing in which the Tribunal had rejected the applicant's claim for a protection visa. Although that decision had been remitted for re-hearing by consent, the applicant was concerned that the Tribunal had not accepted him as a witness of credit. In order to satisfy the Tribunal in the new hearing, the applicant sought an independent witness to testify in relation to the genuineness of the two documents. In the result, the applicant submitted a statutory declaration from Mr Leul Gebreyesus and also called him to give evidence at the hearing. 10 Mr Gebreyesus was an Ethiopian national of Tigrayan ethnicity but born and raised in an Oromo area of Ethiopia. He lives in Australia but has no personal connection with the applicant. He joined the Ethiopian army at age 17 and graduated from an army training college at the age of 19 in 1983. For two years he was a commanding officer in Eritrea and in 1985 was sent to central Ethiopia until May 1989. In this period, he regularly worked in conjunction with the police and military police in a section responsible for internal security. He regularly saw correspondence emanating from the central police and worked in close liaison with them. He claimed a familiarity with official documents within the military, the military police and the ordinary police and claimed a familiarity with the administrative procedures of the departments. 11 Mr Gebreyesus examined photocopies of the two documents and read a copy of the report of the document examination unit. In his statutory declaration, he responded to each of the issues raised in the document examination unit report. He gave a lengthy explanation of the questions raised about the size of paper and the procedures relating to the reference numbers on the two documents. The statutory declaration made by Mr Gebreyesus included the following: "16. The first letter dated the 11th May 1996 is addressed 'To Whom it May Concern' as it was a letter apparently provided to the applicant following his release certifying the fact that he was detained and questioned and was subsequently released on the payment of bail totalling 40,000 Birr (approximately $8,000.00 AUD). It appears therefore that the document was given to Solomon as an official record of what had taken place. If Solomon were stopped by military or security police again, he would have been required to show them a copy of this letter concerning his previous arrest and discharge. The letter is a fairly standard letter provided to people upon their release from custody and it is that person's responsibility to show the document as soon as possible if required. Similarly, it might be necessary for Solomon to provide evidence of his arrest to his employer to explain his absence or for any other official purposes. It is for that reason that the correspondence is addressed 'To Whom it May Concern' as it is to be provided by Solomon to any number of people in response to any enquiries or for any of his own purposes even though the document is strictly speaking directed to him. 17. Whilst Solomon's name and address does not appear on the letter, this is because the letter was given to him by hand and, in any event, such official letters rarely contain an address as they are delivered by hand to a person or their family's home as there is no adequate residential postal service within Ethiopia. It is also quite possible that the police did not know Mr Tedella's home address in any event. In my experience, government departments use only internal mail and documents that are to be given to outside persons are never sent but are delivered in person to either themselves or their families. … 19. With regard to the second letter which does not contain an address, I repeat what I stated earlier and wish to clarify that in my view the translation of the document is not entirely accurate. In fact the translation should be something like "where at his address"; meaning that the document is for Solomon and will be delivered to him wherever he might be. As I stated earlier, it is not common for government departments to have peoples' addresses, even those who are their own employees. As there is no adequate residential postal system, it is unusual for a person's address to be noted on correspondence in any event. If a person has a post office box this might be noted and if a person is an employee of a particular department the name of the office and the town in which the department is located might be noted on the correspondence. Otherwise, it is extremely uncommon for an address to appear on an official document, particularly one which is to be served personally in any event. … 28. In addition to the matters already raised, I consider the documents are genuine not only because of the layout and use of seals but because the language and style of the letters is consistent with the many other documents I have seen. In particular, there are a number of different words in the Amharic language that can be used to express the same meaning, depending upon the region or the purpose of the document. For example, I know from my experience working with the security forces in conjunction with the police, that the word used in the documents for the word 'arrest' is the one that would be used within the police or security departments. Whilst there are no official guidelines as to what language to use, the use of certain words is consistent throughout and officers simply know what language to use." 12 The Tribunal rejected the applicant's claim that he was detained in April 1996. As the applicant said he was detained while he was working for Medecins Sans Frontiers and said he was taken from his place of employment, the Tribunal found it implausible that Medecins Sans Frontiers would not have known of his detention. The Tribunal also did not accept that he would not have told Medecins Sans Frontiers of the details of his arrest after his release and it rejected the contention that the applicant would not have been able to report such a serious detention to Medecins Sans Frontiers and would not expect their support. No complaint is made by the applicant about this aspect of the Tribunal's decision and consequently it is not necessary to explain more elaborately the process of reasoning in this part of the decision.