Abako, Eliki Bill v Minister for Immigration and Multicultural Affairs

[1998] FCA 247

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 40  of  1998

BETWEEN:	ELIKI BILL ABAKO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	18 MARCH 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:   I have before me an application for an order of review of a decision of the Refugee Review Tribunal given on 7 January 1998.

The applicant arrived in Australia as a stowaway on a ship on 11 July 1997 without any travel or other identification documentation.  The ship had travelled to Australia from South Africa via Taiwan.  On 20 August 1997 the applicant lodged an application for a protection visa.  The delegate of the Minister for Immigration and Multicultural Affairs refused to grant that protection visa on 28 August 1997.  On 1 September 1997 the applicant sought the review of that decision.

The matter first came before me on 6 February 1998.  On that occasion the applicant appeared in person and the Minister was represented by a solicitor.  On 6 February 1998 I directed the parties to file affidavits and directed the applicant to file an outline of the submissions and contentions in support of his application no later than 6 March 1998.   No submissions have been filed. 

I have been informed by the applicant from the bar table that he made an application for pro bono legal assistance but that application was refused.  In the course of the hearing today the applicant has been assisted by an interpreter, Mr Ross Hall, who appears to be able to communicate with Mr Abako in the Swahili language.  When I invited the applicant to address in support of his application he indicated that he wanted more time as he wished to obtain some legal assistance.  I declined to grant him an adjournment for that purpose, however, I did adjourn the proceedings for a short time to enable the applicant to have the benefit of a translation of written submissions filed on behalf of the Minister.

Following that adjournment, Ms Andrawis, solicitor, interposed and said that she had now received instructions to act on behalf of the applicant but needed some time to consider the papers.  Ms Andrawis said that she had not at that stage had an opportunity to consider the papers and was not aware of the issues.  She indicated that she is an acquaintance of Mr Abako, the applicant, and that although she has only recently been admitted to practise, her employer or supervisor was prepared to consider the question of whether advice could be given to the applicant.

For the reasons which follow, I consider that the application ought to be dismissed.  However, I am reluctant to dispose of the matter finally in circumstances where the applicant, albeit very tardily, has the opportunity of receiving some advice in relation to the matter.  I am also reluctant to require the parties to incur further unnecessary costs.  The course I therefore propose is to give my reasons for reaching the conclusion to which I have already referred  but then stay the effect of any orders which I make for approximately 10 days to give the applicant the opportunity of making any further submissions which he wishes to make.

In the application for review two grounds appear to be relied on, namely, the grounds specified in sections 476(1)(e) and 476(1)(g) of the Migration Act 1958 (Cth). The application itself is handwritten and is difficult to understand in some respects. I shall deal first with the ground in section 476(1)(e) because nothing appears to arise which could support that ground.

Section 476(1)(e) says that a decision may be reviewed on the ground:

that 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 person who made the decision, whether or not the error appears on the record of the decision.

I have read the reasons of the Tribunal. In the reasons a brief statement of the elements of the definition of refugee in the Convention is set out. I do not perceive any error in those statements of principles. Nor do I perceive in the reasons any error in the application of those principles to the facts as found by the Tribunal. Accordingly, I am satisfied that the ground in section 476(1)(e) has not been made out.

The other ground relied on is that in section 476(1)(g), namely, that there was no evidence or other material to justify the making of the decision. In the application, in addition to the reference to section 476(1)(g), the following appears:

Refugee Review Tribunal natural justice is not take inside my account, my evidence under the UN law Political Convention and is not take inside my account I am from Democratic Republic of Congo (formerly Zaire).

Section 476(1)(g)(A)-(B) supported by sections 414(1)(2) 412(A)-(B) to be made for decision.  Under that section I did not agree with the RRT Natural Justice and I would like my cause to be heard by real Justice.

After a reference to the ground contained in section 476(1)(e), the following appears:

Because of the persecution facing my tribe (LINGALA) and my party (MPR) who were of the Mobutu Sese Seko Kuku, the former President of Zaire.

Which have rendered me and my family homeless and put my life a risk if I should be deported back to Zaire I will surely loss my life just like what happens to my family and party (MPR).  If I should be returned to such a country I will surely loss my life.

The reference to natural justice appears to be misconceived.  Section 476(2) provides expressly that:

The following are not grounds upon which an application may be made under subsection (1):

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;...

In any event it is apparent from the reasons that every reasonable step appears to have been taken by the Tribunal to afford procedural fairness to the applicant.  There were three hearings attended by the applicant and in addition a letter was written by the Tribunal to the immigration agent representing the applicant indicating the concerns which the Tribunal had as to the credibility of his evidence.  Even if there were a ground of a breach of the rules of natural justice there is nothing in the material which I have seen which would justify a finding that such a ground had been made out.

On the face of it the grounds appear to be an application for a review of the findings of fact made by the Tribunal. That of course is not a ground which is open to this court. Section 476(1)(g) is explained by section 476(4). Under that provision that ground is not to be taken to have been made out unless either:

(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or;

(b)      the person who made the decision based the decision on the existence        of a particular fact, and that fact did not exist.

It is necessary to consider the findings of fact made by the Tribunal in order to determine the possible application of section 476(1)(g). The Tribunal found that Zaire became independent in 1960 and that full executive power was assumed by Mobutu Sese Seko Kuku Ngbendu Waza Banga when he became President in 1965. In 1966 the Mouvement Populaire de la Revolution (“MPR”) was founded. In May 1997, following a seven month civil war, the Mobutu-led MPR lost power and the Alliance of Democratic Forces for the Liberation of Zaire (“ADFL”), led by Loran Kabila, took over.

The Tribunal records that reports are beginning to confirm that the transition of power occurred with a significant level of fear among the population and with considerable violence.  The Kabila government's reluctance to respond to allegations of human rights abuses and alleged massacres supports such a conclusion.  However, the Tribunal was not aware of any reports of MPR supporters with a low political profile or who had not been very active in the party being harmed or sought out by the new government or its supporters because of such a connection.  On the other hand, in the context of volatile conditions in Zaire such action could well have been taken at the local level.

In evidence before the Tribunal, the applicant said that his parents had been long time members of the MPR and that he had assisted with cleaning and other associated activities where meetings were held.  At the hearing of the Tribunal on 17 December 1997 the applicant said that he had joined the MPR when he was 17 and that he is afraid because the ADFL is now in power and is killing people who supported the MPR.  He said people in his village knew who supported which party.

At each of the hearings before the Tribunal the Member raised the primary matter which caused her concern as to the credibility of the applicant.  That matter concerned the time taken for an alleged journey from Kisangani to Matadi in Zaire.  The Tribunal had consistent independent information before it that Zairian roads are in poor condition.  In particular, after Mr Mobutu's three decades in power Zaire had less than 1,000 miles of paved road and in the interior of the country it can take up to three months to travel 200 miles by car.

The Tribunal contacted Mr Simon Williamson, Emergencies Manager with Care Australia who has visited Zaire several times, mostly recently in February 1997.  He has visited Kisangani.  Mr Williamson said that there is not a direct road route from Kisangani to Matadi and that while it would be possible to travel between the two places by road it would be a very convoluted journey taking a couple of weeks.  He said that the road were extremely bad and that Zaire is one of the most difficult countries in which to travel.  However, the applicant maintained that his journey from Kisangani to Matadi took about three days.  At the hearing before the Tribunal on 24 October 1997 he said that he was in hiding so it may have taken a little bit longer than three days.

The Tribunal wrote to the applicant on 18 November 1997 setting out its concerns in relation to that matter.  The letter said that the Tribunal considered that the journey from Kisangani to Matadi could not possibly have taken approximately three days.  In the letter the Tribunal said that, while it was understood that the applicant may have been deeply traumatised following what had happened to his parents and that he was in hiding and may therefore not have known exactly how many days had passed, it was considered that he should remember whether it was around three days or around two to three weeks.

The applicant's adviser responded on 5 December 1997 saying that the applicant could not be sure exactly how long the journey took.  He thought that the period of travelling was more than three days but did not agree that it could have taken two or three weeks.  It could have taken about a week.  He said that the vehicle travelled at a constant high speed, travelled at night as well as during the day and made only brief stops.  At the hearing on 17 December 1997 the applicant said that he did not know how long the journey took.  He said that it could have been longer than two weeks but he did not count the days.

At that hearing the applicant and his adviser suggested there may have been a problem with interpreting what he had said and that the applicant may not have intended three days to be stated so definitely.  The Member, however, said that that matter had been discussed at length during the first two hearing and that there had been ample opportunity for the applicant to tell the Member that he did not know how long the journey had taken.

The Tribunal's conclusion in relation to that matter was that the journey could not possibly have taken three days or a week.  What the applicant said about the road conditions in Zaire was not supported by any information of which the Tribunal was aware.  When information was put to the applicant at the first hearing about road travel in Zaire he changed his evidence.  The Tribunal was satisfied that the applicant was well aware of the member's concerns with the evidence he had given and that he had ample opportunity to correct what he had said.  The member considered that the applicant would have had some idea how long the journey took if a journey such as that he claimed had in fact occurred.  That he continued to claim that it took three days over two hearings and at the third hearing said that he did not know how long it took, led the Member to find that the journey described by the applicant did not take place.

The second matter of concern to the Tribunal concerned the applicant's lack of knowledge of the French language.  The Tribunal had before it information confirming that while Swahili is widely spoken and that it and Lingala are national languages, French is the official language of Zaire.  In the letter of 24 October 1997 the applicant was informed that information before the Tribunal indicated that whilst Swahili was spoken in Zaire, Mwani was apparently spoken in parts of Tanzania and Mozambique.  At the hearings on 15 and 24 October 1997 the applicant stated that he knew some people who spoke French but that he and his family did not speak French.

The Tribunal's letter of 18 November 1997 set out the Tribunal's concerns and said that the Member could accept that villagers with minimal education living a simple village life may not speak French in their day to day lives but that French is the national language, and the Member considered that it would be unusual that a person who knew French speakers and visited the main town centre of one of Zaire's largest cities, where the street names are in French, would speak absolutely no French.

The response from the applicant's adviser of 5 December 1997 was that only educated people speak French in Zaire.  The letter stated that not all street names in Kisangani were in French but some were in Swahili.  At the hearing on 17 December 1997, the applicant said he could, in fact, speak some French and recited a range of simple meeting and greeting words and phrases.  He explained the discrepancy between this evidence and all that he had given previously in relation to the issue by saying that he had not been asked if he speaks some French or if he knows some French words.

The Member considered that, had he had any knowledge of the language, he would have said so earlier.  The Tribunal's conclusion in relation to that matter was that the evidence about the speaking of French had changed.  During the first two hearings the applicant continued to maintain that he did not speak French, whereas at the hearing on 17 December he said that he did know some French and recited the words and phrases which he knew.  The Tribunal did not consider that the applicant's explanation for the change in his evidence was convincing.  The Tribunal considered that the applicant had learnt some simple French words and phrases to try to show that he could speak French in the hope that it would remove the doubt about whether he was from Zaire.  The Tribunal did not accept that the applicant had any practical knowledge of French. 

There were other aspects of the applicant's evidence which the Tribunal considered were not consistent and raised doubts about the credibility of what he had said.  While they were not considered major issues by the Tribunal, they were considered to add to the difficulties apparent from the applicant's claims.

For example, the notes of the interview on board the vessel on which he travelled to Australia record that he said he had no political affiliation profile, whereas he later said that he and his parents were members of the MPR who took part in meetings.  Next, at the first hearing the applicant said that he did not have any identity papers apart from a birth certificate, whereas at the third hearing he said that he had an MPR membership card and a church certificate as well.  Finally, he said that he did not know whether US$200, which had been given to him upon arrival in South Africa by people on board the ship on which he claims to have travelled as a stowaway from Matadi, was a lot of money or not.  The Member considered that that would have seemed like a very substantial amount of money to a person who had lived a simple life in Zaire, one of the poorest countries in the world. 

Much of the applicant's evidence was not accepted by the Tribunal and, having regard to the totality of the evidence, the Tribunal was unable to be satisfied that the applicant had been truthful.  In particular, the Tribunal was not satisfied that the applicant was from Zaire or that he fled Zaire in the circumstances he had claimed.  For that reason, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention.

It appears from those reasons which I have summarised, that the conclusion reached by the Tribunal, that it did not regard the applicant’s evidence as credible, was based on the inconsistencies in his evidence and on the inherent improbability of the two matters about which he spoke, namely, that he travelled a journey in three to seven days which the Tribunal found could not have taken less than three weeks, and, secondly, that having spent considerable time in Zaire, nevertheless, he could not speak French.  There does not appear to have been express reliance placed upon the demeanour of the applicant in giving evidence, although one might assume that some regard would be had to such matters.

It is, of course, very difficult to place much reliance on the demeanour of a witness who is in totally foreign circumstances and does not speak English.  Nevertheless, it appears to me that while it may have been open to the Tribunal to reach a different conclusion, there was certainly material before it, which is explained in considerable detail in the reasons, from which the Tribunal could conclude that it did not regard the applicant's evidence as credible.

The question which was before the Tribunal was whether or not the applicant was a refugee within the meaning of that term when used in the Refugees Convention.  The essential requirement was that the applicant have a fear of persecution, being a well founded fear, and that the applicant be unable or unwilling because of that fear to avail himself or herself of the protection of his or her country.  The Tribunal, in effect, found that it simply was not satisfied that the applicant had the well founded fear in question.

Section 476(4)(a) appears to me in those circumstances to have no application. There was no particular matter which needed to be established in order to make the decision. Nor it seems to me was the decision based on the existence of any particular fact which has been shown not to exist. There was evidence before the Tribunal of the road system in Zaire and the fact of French being the official language. In the circumstances, it seems to me that there is no basis for concluding that the ground in section 476(1)(g) has been made out. In so far as this court is being invited to reach a different conclusion from that reached by the Tribunal, it is in effect being asked to overturn a finding of fact which on the material which I have seen in the reasons, it was open to the Tribunal to make.

I have referred above to the references to sections 412 and 414 in the application.  Those references appear to me to be meaningless in the present context.  Section 412 requires that an application for review by the Tribunal must be made in the approved form.  There is no suggestion that the approved form was not employed.  Section 414 requires that if a valid application is made the tribunal must review the decision.  It is quite apparent that the tribunal did in fact review the decision and it is difficult to understand what the drafter of the application had in mind by referring to sections 414 and 412. 

There being nothing further advanced in support of the application for review, my opinion is that the application should be dismissed with costs.  As I intimated earlier, however, I will make that order but then order a stay up to and including Friday 27 March 1998. 

I give liberty to the applicant to file and serve no later than 24 March 1998 any further submissions which he wishes to make in the light of the reasons which I have expressed and in the light of the written submissions made on behalf of the Minister.  I direct the Minister to make any submission which he wishes to make in response to any such submissions by the applicant no later than 26 March 1998.  If submissions are in fact received by 24 March 1998, I will list the matter for further directions on 27 March 1998 and determine whether I will extend the stay.  If no submissions are received before 25 March 1998, then the stay will expire in the ordinary course and the orders which I now pronounce will become effective.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated:             18 March 1998

Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 March 1998
Date of Judgment:	18 March 1998