Abebe v Minister of State for Immigration and Multicultural Affairs

[1997] FCA 1437

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 808  of   1997

BETWEEN:

SENIET ABEBE

APPLICANT

AND:

MINISTER OF STATE FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

CORAM:

DAVIES J

DATE OF ORDER:

11 DECEMBER 1997

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 808 of 1997

BETWEEN:	SENIET ABEBE APPLICANT
AND:	MINISTER OF STATE FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

CORAM:	DAVIES J
DATE:	11 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application to review a decision of the Refugee Review Tribunal dated 3 September 1997 refusing to grant a protection visa to the applicant.

The original application, filed on 30 September 1997, was made under s 476 of the Migration Act 1958 (Cth) ("the Act"). However, in opening, counsel for the applicant filed in Court an amended application and stated that he now also wished to challenge, under the Judiciary Act 1903 (Cth), a decision made on 7 March 1997 refusing immigration clearance to the applicant. In my opinion, that is not a matter which arises out of the original application which, as I say, was an application under s 476 of the Act. It is also not a matter which, in my opinion, is consistent with the description of the decision the subject of the application on page 1 of the amended application.

Counsel has referred to the fact that the decision of 7 March 1997 was referred to in a particular of the grounds under s 476 of the Migration Act set out on page 2 of the amended application and that some of the claims set out in part 2 of the application seek the exercise of the jurisdiction which the Court would have under s 39B of the Judiciary Act.

That jurisdiction, of course, is on the face of the matter excluded by s 485 of the Act. Arguments under the Judiciary Act do not arise in appeals under s 476 of the Act. If they are to be raised they ought to be raised clearly and with due notice to the respondent. In the present case, no notice of the argument that is to be put was raised until this amended application was prepared.

Therefore, I will proceed on the basis that this is an application under s 476 with respect to the decision of 3 September 1997.

Relevant provisions of s 476 read:

"(1)Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)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.

..." 

It is important to keep in mind that, in fulfilling the function conferred upon it by s 476 of the Act, the Court must look to the matters specified in the grounds of review. It is not the function of the Court itself to review the merits of the case or to decide the facts of the case. The facts are for the administrative decision-maker, the Refugee Review Tribunal. The function of the Court is to see whether there was something having the nature of an error of law in the decision of the Tribunal including an error in the approach of the Tribunal to the questions before it. The present case falls very much into the category of a fact case, for the Tribunal did not accept the substance of the claims made by the applicant.

Dealing with refugee claims can be a difficult matter.  It is very often a complex task for an administrative decision-maker to arrive at a view of the facts of the case.  The decision-maker, in order to grant refugee status, must be satisfied as to a number of facts:  who the applicant is, his or her country of nationality, why it was that the applicant left that country, whether the applicant did so for a fear of persecution  and whether that fear of prosecution was well-founded, as to the last of which the "real-chance" test will apply.

Sometimes an applicant will come forward with an individual story which makes it easy for a Tribunal either to accept or reject the facts as claimed.  In the present matter, the applicant arrived in Australia without travel documents.  Subsequently she submitted a facsimile copy of a birth certificate and a work identity card.

There were further problems in the present case.  One was that three separate stories, differing substantially, were given at relevant times.  In the first place, the applicant went to South Africa and there lodged a claim for refugee status.  The information which was recorded in her application for asylum in South Africa was as follows:

"she is SENIET ABEBE, born Ethiopia

• she left Ethiopia on 16 August 1994 by ship

• she arrived in Durban 18/9/94

• she arrived illegally and asked the Harbour Authorities for a refugee application

• she is an ordinary member of AAPO

• her husband was an AAPO member who had to mobilize the people in the southern region of Ethiopia against the EPRDF government in 1993

• the government killed her husband in April 1994

• they were looking for her because she was an AAPO member

• her family gave her money to get on a ship at Assab

• she did not know the ship was travelling to SA

• parents are still in Ethiopia

• she has never been involved in any incidents of physical violence

• she has never been arrested or detained

• she wishes to return to her home country and would be allowed to do so

• she thinks she will be arrested because she is a member of AAPO which opposes the Government

• she would be in danger as her husband was killed by the government and as she is a member of AAPO she will also be killed."

Thus, in that application, she claimed that she and her husband had been members of the All Amhara People's Organisation ("AAPO"),  that her husband had the duty of mobilising people in the southern region of Ethiopia against the government in 1993,  that her husband had been killed in 1994 and that she had been sought by the authorities because of her relationship with her husband and her membership of AAPO.  She said in that application that she had never been arrested or detained. 

When the applicant first arrived in Australia her claim was recorded as follows:

"she is an Ethiopian housewife

• her husband was a soldier in the previous Ethiopian Regime and injured his leg fighting the current regime.  leg now amputated

• husband lives at home with his family

• new regime is always following them

• she left Ethiopia without telling anyone on 5/2/89 (Ethiopian Cal) =  1996

• she left on foot to Kenya, then to Sth Africa for 3 months

• stayed in a refugee shelter

• travelled to Australia on Sth African passport

• did not pay for travel documents

• passport torn and flushed in plane toilets

• she cannot return to Ethiopia for fear of persecution" 

Therefore, in this second version of events, she claimed that her husband had been a soldier in a previous Ethiopian regime, that he had injured his leg fighting against the current regime, that his leg had been amputated and that he now lived at home with his family.  She said that she feared persecution. 

The third story recounted by the applicant was the substance of the case put to the Refugee Review Tribunal.  The applicant gave evidence that she and her husband had been minor members of AAPO in a branch of about 200 members.  She said that in April 1994 her husband disappeared and that about five days later she herself was arrested, told that she was wanted for questioning and held in jail for two months, during which time she was raped and abused, ultimately escaping disguised as a nurse and leaving Ethiopia in July 1994.  She said that no one but her husband and herself had been arrested at that time and that her husband had not been released or she would have heard of his release via her family. 

These three claims were significantly different and the Tribunal was faced with the fact, as I have mentioned, that the applicant had arrived without identity papers.  The Tribunal investigated the claims as well as it could.  It found many problems with the dates given by the applicant.  While it noted the differences between the Ethiopian and the Gregorian calendars, it found as a matter of fact that none of the significant inconsistencies could be attributed to those differences.

The Refugee Review Tribunal conducted two hearings.  Particularly in the second hearing, it attempted to examine the applicant's evidence without pressing her too often to remember dates, which she claimed were her weak point.  The Tribunal was nevertheless left with the impression that the applicant had difficulty in adhering to any simple, straightforward, consistent sequence of events, including such matters as the date of her wedding.

The Tribunal then looked at the claim of the arrest in 1994. The  Tribunal referred to the events which occurred at the time, particularly events occurring after the arrest and detention of AAPO's leader, Professor Asrat Woldeyes.  The Tribunal noted that AAPO and other opposition parties boycotted the 1994 elections and cited  from an Amnesty International report as to events at the trial.  The Tribunal cited information from a Reuters Business Briefing which reported the detention of 272 AAPO supporters and which said that 70 had been freed a day later and 158 had been since released, whilst the others were still under investigation.

The Tribunal however came to the view that, given the claimed size of the branch of AAPO to which the applicant and her husband were said to belong, that is 200 members led by someone other than the husband, it was difficult to see how the husband could have been in a position to be an organiser of the kind of mass demonstrations that later attracted action from the authorities.  The Tribunal found the applicant's evidence that no-one but her husband and herself had been arrested at the time inconsistent with the general attitude of the  authorities in relation to AAPO, which was to take an interest in persons prominent in the organisation.  The Tribunal considered that it was unlikely that, if arrested, the husband would have still been held. 

The Tribunal took into account the fact that the applicant claimed to have been fearful or confused on occasions when giving what she later admitted was false evidence, but it nevertheless came to the view that it could not accept the substance of her claims.

The Tribunal said:

"The Tribunal has considered the claims made by the Applicant at the second hearing and does not, in the context of the number of distorted claims made by the Applicant, accept her account of her husband's arrest.  It follows that the Tribunal is not, in the circumstances, prepared to rely on the evidence before it as to her own.

The Tribunal considers it possible that the Applicant might have suffered some form of abuse in the past: her difficulty with the truth might be argued to be consistent with a disturbed past; however, it is not able to accept on the Applicant's evidence to the effect that she and her husband were the sole victims of a 1994 police swoop on their small suburban branch of the AAPO in isolation of anyone else in the branch, such as its leader and office holders, and in isolation of anyone else in the branch, such as its leader and office holders, and in isolation of the kind of events that attracted such action during that year.  The Tribunal concludes that the Applicant's claims about her husband still being detained are no more than a poorly-argued ambit.  She did not convince the Tribunal that, for the reasons she gave, she had tried unsuccessfully to find out about him.  The Applicant now has a long history, much of it admitted by her, of having told untruths.  Her claims as to fear and confusion wear thin after six or seven occasions of `clearing the slate' as it were.

...

The Tribunal finds the Applicant an unreliable witness in this matter.  Her claims in relation to `political opinion' are  unsuccessful.

However, the Tribunal is prepared to accept that the Applicant is an Amhara and notes her claims to the effect that the Amhara are disliked by the current government and suffer discrimination.  Nevertheless, the Tribunal considers the above-cited (DFAT and other) information as to the circumstances of the Amhara in Ethiopia to negate her claims as to the existence of a real chance of persecution for reasons of her membership of this particular social ethnic group.

On the evidence, the Tribunal is not satisfied that the Applicant faces a real chance of Convention-related persecution in Ethiopia."

It does not seem to me that the Tribunal adopted an incorrect approach to the issues before it.  In my opinion, the Tribunal considered the substance of the matters put by the applicant but in the end did not find that her evidence in respect of those matters was credible.

This present case is different from a case such as Eshetu v Minister for Immigration & Multicultural Affairs (1996) 71 FCR 300 in which Burchett J and I considered that the Refugee Review Tribunal had erred by affording insufficient attention to the claims made and evidence given by the applicant and too much attention to objective evidence. In the present case, I am satisfied that the Tribunal did attempt to distil the facts of the matter so far as the applicant could state them but in the end was dissatisfied with the evidence given. As I have said, it is not a matter for this Court to decide the matter for itself. The Court is not the decision-maker of fact in an appeal from a Tribunal decision.

I have looked at the matter to ascertain whether there was some error in the manner in which the Tribunal conducted the proceedings. Counsel for the applicant submitted that there was an obligation on the part of the Tribunal to be helpful, to assist the applicant, to diminish the pressures placed upon her, to ensure that when giving evidence she was not in a state of stress and to inform her of the issues to which she should direct her attention when giving evidence. However, counsel overstated the obligations imposed by s 420 of the Act, which requires the Tribunal to provide a mechanism of review which is "fair, just, economical, informal and quick" and one which will enable the Tribunal to act according to "substantial justice and the merits of the case".

Counsel for the applicant submitted that the Tribunal failed in its duty to assist the applicant and adopted an inquisitorial attitude.  I have read the transcript of the proceedings.  It does not appear to me that the applicant adopted any wrong approach.  Early in the first hearing the Tribunal commenced its examination of the applicant by asking questions as to dates, but the member constituting the Tribunal came to realise that there were problems with the dates which were compounded by the two calendars and came to realise that the applicant had difficulties with dates. 

When the Tribunal put various matters to the applicant, it was merely fulfilling the fundamentally inquisitorial task which it is required to undertake.  The Tribunal's approach is exemplified by the following question:

"MR HARDY:  Gregorian calendar November '96.  So that must be the 3rd month of 1989 in the Ethiopian calendar.  Now, this information suggests that there continues to be some controversy about the AAPO and you know, there could be some danger if you were leading the organisation or identified with Professor Asrat and the opinions that he is alleged to have expressed, I stress only alleged.  But it seems to say that just being a member isn't enough to attract arrest at the time of writing which was in the 3rd month of  '89 Ethiopian calendar.  Do you trust that information?" 

It seems to me, in asking that question, the Tribunal was simply putting to the applicant the substance of the position as the Tribunal understood it to be from the various sources which were available to it.   If a Tribunal fails to put that position fairly, it may be criticised for not raising with the applicant matters to which the applicant should direct his or her attention.  It seems to me to be proper that, at some stage in Tribunal proceedings, the general understanding which the Tribunal has of the circumstances in the relevant country should be put to the applicant with a view to obtaining any response the applicant might wish to make.  See also Ntiamoah v Minister for Immigration & Multicultural Affairs (unreported, 10 November 1997, Davies J) where I addressed the question of  the requisite degree of disclosure to be made of the information which the Tribunal had available to it in its library, and Durarajasingham v Minister for Immigration & Multicultural Affairs (unreported, 11 November 1997, Davies J) where I explained that complaints that the Tribunal member argued with an applicant or claims of bias in Tribunal proceedings are often a product of the inquisitorial nature of the procedures the Refugee Review Tribunal is required to adopt in ensuring that its decision is made according to the substantial merits of the case.  It does not seem to me, in the present case, that the Tribunal showed any form of bias.  The questions that were put were relevant and proper questions.

The substance of the case as put by the counsel for the applicant was based upon the allegation that the applicant had been detained and held in prison for two months by soldiers and had been repeatedly raped and abused during that period.  Counsel submitted that the Tribunal erred by reaching a conclusion adverse to the applicant as there was no finding that that did not occur.  It seems to me, however, that the Tribunal did not accept that evidence and that the Tribunal made that clear.  The Tribunal certainly considered it possible that the applicant might have suffered some form of abuse in the past and that her difficulty with the truth may be consistent with a disturbed past.  However, the Tribunal did not accept that such abuse had occurred as a result of her arrest by government soldiers, that she had been arrested because she had been a member of AAPO or that the mistreatment of which she complained was attributable either to her membership of  AAPO or to her ethnicity.

In these circumstances, I am not satisfied that there was any error in the Tribunal's decision and, in particular, I am not satisfied that there was any error which this Court would have jurisdiction to correct.  For those reasons the application must be dismissed with costs.

I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Dated:             11 December 1997

Counsel for the Applicant:	J Gersten
Solicitor for the Applicant:	Alex Lee
Counsel for the Respondent:	S Kavallaris, solicitor
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 December 1997
Date of Judgment:	11 December 1997