Addo, Mohamed Abdullah v Minister for Immigration and Multicultural Affairs

[1998] FCA 1590

FEDERAL COURT OF AUSTRALIA

MIGRATION – application for review of decision of Refugee Review Tribunal (“the RRT”) whether well-founded fear of persecution – error of law – findings as to applicant’s credibility – whether applicant must be given reasonable opportunity to adduce evidence in respect of matters not accepted by RRT – whether RRT must allow applicant to address orally on all issues at hearing – actual bias – whether RRT acted according to substantial justice and merits of case – failure to consider corroborative evidence –effect of not notifying applicant of non-acceptance of contents of statutory declaration – failure to call witnesses – findings as to current country conditions – whether no evidence.

Migration Act 1958 (Cth) ss 36(2), 420, 425, 476

1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees

Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482, cited
Khan v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 602, cited

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, followed

MOHAMED ABDULLAHI ADDO v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 315 OF 1998

TAMBERLIN J
SYDNEY
11 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 315 of 1998

BETWEEN:	MOHAMED ABDULLAHI ADDO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	11 DECEMBER 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application for review is dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 315 of 1998

BETWEEN:	MOHAMED ABDULLAHI ADDO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	11 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Before the Court is an application for review of a decision of the Refugee Review Tribunal (“the RRT”) made on 12 March 1998. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”). The RRT affirmed a decision of the Ministerial delegate not to grant a Protection Visa to Mr Addo (“the applicant”) because he was not a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”). This, in turn, was because he was not a “refugee” within the meaning set out in the Convention: see s 36(2) of the Act.

“Refugee” is defined in Article 1 of the Convention as a person who:

“...owing to 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....”

Background

Mr Mohamed Abdullahi Addo (“the applicant”) was born in Marka, Somalia, and claims to be a member of the Biyomal sub-clan.  He states that he is a farmer, who has completed twelve years of education.  In the statutory declaration lodged by the applicant in support of his application for a protection visa, he says that he was forced to flee Somalia because of inter-clan difficulties. 

His father is a Biyomal, who married a woman, Habiba Hassan, from the Hawiye (clan) Habar-gidir (sub-clan) about seventeen or eighteen years ago.  The applicant says that after the civil war broke out in Somalia life was made difficult for his family because his father’s Hawiye wife wanted to take control of his affairs and land.  His father’s wife was from a strong clan and she organised other Habar-gidir to assist her.  The Habar-gidir militia attacked the family property on many occasions after the civil war began.  The farm was looted and the crops were stolen. The applicant’s father was assaulted and forced to pay money.  In mid 1996, Habar-gidir gunmen shot at the applicant, who suffered an injury to his right triceps and his right foot.  The applicant escaped but the gunmen shot his aunt and daughter.  The applicant’s father paid the gunmen in order to protect himself and the applicant.  The applicant believes Habiba had some involvement in these incidents.

From mid 1997 until 14 September 1997, the applicant lived in a small village in Malable, which is approximately 60 kilometres from Marka and 35 kilometres from the farm.  At this time, the applicant’s father could no longer afford to pay the demands for money and, as a result, was seriously assaulted by rival clansmen around 21 July 1997.  He was sent to Nairobi for medical treatment but died in a Nairobi hospital on 13 September 1997 due to his injuries.

The applicant, afraid of what the Habiba might do to him after his father’s death, sent his first wife to Kismayo on 6 November 1997.  He later learned that she was killed en route by Habar-gidir and the applicant believes that Habiba was involved in this incident.  After the death of his first wife, the applicant left Somalia.  He went to Agaran and, whilst there, he was told that his second wife had been raped by Habar-gidir men. Around 25 November 1997, the applicant went to Razkamboni, on the border of Kenya and eventually came to Sydney via South Africa.  The applicant believes that if he is returned to Somalia, he will be killed.  The Habar-gidir now controls the region, which was traditionally controlled by the Biyomal and the applicant says that because of this he cannot relocate anywhere in Somali today.

Application for an order of review

The applicant arrived in Australia on 1 December 1997. On 15 December 1997, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Act. On 15 January 1998, a delegate of the Minister refused to grant a protection visa and on 20 January 1998, the applicant sought review of that decision by the RRT. The applicant attended the hearing on 27 February 1998 and was represented by Mr Sandilands, solicitor. An interpreter was present to assist the applicant. The RRT decision was delivered on 12 March 1998. The applicant was not successful and filed an application for review of the decision in this court on 9 April 1998.

At the commencement of the hearing before me, Counsel for the applicant sought leave to file an amended application for an order of review.  Counsel for the respondent made no objection to the amended application and it was not suggested that any prejudice would be suffered.  Accordingly, I granted leave to file in court the amended application for review but reserved liberty to Counsel for the respondent to file supplementary submission in the event that new matters are raised by the amended application.  No supplementary submissions were filed.

The grounds of review, as set out in the amended application, are as follows:

“…

Procedures that were required by the Act to be observed in connection with the making of the Tribunal decision were not observed in that the Tribunal failed to give the Applicant a reasonable opportunity to give his evidence, in accordance with ss 420 and 425 [s 476(1)(a)].

Particulars
At the hearing, the Tribunal asked all the questions of the Applicant. The questions either sought specific pieces of information or clarification of perceived inconsistencies in the information before the Tribunal. At no stage was the Applicant given a reasonable opportunity to give his evidence about the essential elements of his case, although that case was all but totally rejected.

The Tribunal’s decision was affected by actual bias [s 476(1)(f)]

Particulars
The Tribunal’s comments during its hearing about the inconsistencies in the Applicant’s case, the Applicant’s credibility and the Tribunal’s failure to see the need to question the Applicant or his witness about the history of the relationship between the Habir-gidir and their clan and family, demonstrates that the Tribunal had come to a concluded view about the Applicant’s credibility before it had heard all the evidence.

Procedures that were required by the Act to be observed in connection with the making of the Tribunal decision were not observed in that the Tribunal failed to act justly or fairly or in accordance with the substantial justice and merits of the case, pursuant to s 420 [s 476(1)(a)].

Particulars
The Tribunal failed to test the evidence of the Applicant’s witness in respect of his evidence about the Applicant’s clan.

The Tribunal failed to give the Applicant’s witness an opportunity to give his evidence about the death of his father or his history in Somalia.

The Tribunal failed to give the Applicant notice of its intention not to accept the evidence of the 5 declarants about his clan so that he could consider calling potentially crucial evidence about his clan.

The decision of the Tribunal involved an error of law, being an error involving incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found or both [s 476(1)(e)].

Particulars
The Tribunal erred by failing to consider the cumulative effect of the evidence from the Applicant’s witness, the 5 declarants and the “independent evidence” that tended to establish the Applicant’s case.
On the material before it, the Tribunal must have erred in finding that there had been a material change in Somalia such that there was only a remote chance that there would not be peace for the foreseeable future.

There was no evidence or other material from which the Tribunal could reasonably be satisfied that what needed to be established, to determine that a change in a country of nationality was sufficient to negate a well-founded fear of persecution, had been established.

Particulars
The evidence and other information before the Tribunal was not sufficient to establish that the required change had occurred in Somalia.

The Applicant claims –

An order setting aside the decision of the Refugee Review Tribunal.
An order remitting the matter to the Tribunal, constituted by a different member, for determination according to law.
An order the Respondent pay the Applicants’ costs of these proceedings.”

Relevant provisions of the Act provide:

“420(1)The Tribunal, in carrying out its function under this Act, is to pursue the objective of providing a mechanism of review that is just, fair, economical, informal and quick.

(2)The Tribunal, in reviewing a decision:

(a)is not bound by technicalities, legal forms or rules of evidence;

and

(b)must act according to the substantial justice and merits of the case.

425(1)Where section 424 does not apply, the Tribunal:

(a)must give the applicant an opportunity to appear before it to give evidence; and

(b)may obtain such other evidence as it considers necessary.

...

476(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;…

(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;…

(f)that the decision was induced or affected by fraud or actual bias;…”

RRT Decision

The RRT found that the applicant is a citizen of Somalia, and for the purposes of the Convention, that his claim should be assessed against that country. 

The RRT acknowledged that a liberal attitude should be taken concerning proof of persecution.  However, the RRT also noted that it was not required to accept uncritically all claims made by applicants.  In the present case, the decision-maker found that the applicant was not a credible or trustworthy witness.  The reasons given for reaching this conclusion were based on marked inconsistencies and contradictions between the various statements made by the applicant.  There was seen to be a failure by the applicant to adequately explain these inconsistencies and contradictions.

Specifically, the RRT found that the applicant was not a member of the clan to which he claimed to belong.  On questioning, he displayed an inability to answer questions, which were considered by the decision-maker to have required basic information that a clan member  would have known.  These matters, which related to the characteristics and nature of the sub-clan, included an inability to name the political-military wing of the Biyomal clans. The applicant could not give evidence as to the activities of that clan in certain important respects.  He gave wrong names for the sub-clans of the Biyomal.  These inabilities were measured by the RRT against the contention of the applicant that he had been a member of the sub-clan living in its traditional region for a number of years. 

In addition, the RRT considered that there were major implausibilities in the assertions made by the applicant in respect of the behaviour of his father’s wife toward her husband.  The decision-maker considered that it was implausible that a Somali woman would defy the deeply entrenched patriarchal nature of Somali society and battle with her husband and his son.  The reasons of the RRT also expressed strong doubts as to the circumstances alleged to have occurred concerning the death of the applicant’s wife.  The RRT refused to accept the applicant’s claim that his farm and property in the Biyomal region had been seized.

In its conclusion, the RRT made a strong adverse finding on the credibility of the applicant.  It said:

“Taken as a whole, in the presence of such flagrant and unsatisfactorily explained contradictions and inconsistencies of a material and substantial nature and given the implausible explanations and the severity and degree of implausibility in question, the Tribunal can only come to the conclusion that the applicant’s testimony is not plausible, credible or trustworthy and therefore finds that he is not a credible witness and that his claims are lacking in credibility.”

Accordingly, the RRT concluded that there was no credible material on which the RRT could satisfy itself that “the applicant had a well-founded fear of persecution” due to race or membership of a particular social group or for any other Convention reason.

The RRT went on to find, as an independent matter, that as a result of the 31 January 1998 cease-fire, the applicant did not have a well-founded fear of persecution in Somalia and that the cease-fire set the stage for a permanent and lasting peace.  The RRT considered that the changes in Somalia since the cease-fire indicated that there had been a material or substantial change of circumstances in the country such that a very high degree of real protection was once more viable in the applicant’s state of origin.

I now turn to consider the grounds of review which were pressed by the solicitor for the applicant on the hearing of the amended application.

1.  Failure to permit the applicant to give his evidence

The primary contention is that there has been a breach of s 425 of the Act in that no reasonable opportunity was given to adduce evidence about matters not ultimately accepted by the RRT. The applicant also says that he was not given a reasonable opportunity to adduce all relevant evidence in person to the RRT on the hearing. It is said that the right to do this is particularly important where there are serious questions about credibility. The “hearing”, it is said, must provide an opportunity for the RRT to clarify issues, fill in gaps and put all relevant matters to the applicant. It is claimed to be a denial of “substantial justice” and a breach of s 425(1)(a) if the questions posed by the decision-maker in fact dominate the hearing.

This submission, in so far as it relates to s 425, reflects a misunderstanding of the operation and effect of the section. The provision requires that in circumstances where the RRT is not prepared to make a decision favourable to the applicant on the “papers” it must give the applicant an opportunity to appear before it to give evidence. The fact that a hearing occurs places the applicant on notice that further material needs to be considered and that the “papers” before the RRT call for some explanation or elaboration.  The RRT is entitled to obtain and consider evidence as it considers necessary.  This does not mean that the principles of evidence should be ignored: see Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482. However, subject to the requirement that an applicant must have a proper opportunity to appear to give evidence, the RRT is not required to allow an applicant to repeat orally the evidence before the RRT or the evidence arising in relation to the decision under review: see Khan v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 602 at 605 per Wilcox J.

A requirement that the applicant must be given an opportunity to appear to give evidence does not mean that all or substantially all the evidence of the applicant must be adduced orally.  In the present case, prior to the hearing, the applicant’s solicitor had provided the RRT with a statutory declaration setting out his claims, together with written submissions which articulated those claims.  The applicant was legally represented at the hearing and was invited to deal with any preliminary matters or submissions at the outset of the hearing.  Towards the close of the hearing, the RRT again asked the applicant, in the presence of his solicitor, whether there was anything else the applicant wished to tell the RRT, which was relevant to his claims.  The solicitor availed himself of this opportunity and raised two matters.  In relation to the first matter, the decision-maker indicated that distances and geography were not matters which concerned her to any great extent.  The second matter raised by the legal representative related to the cease-fire and the motivation of the applicant’s step-mother.  In addition, the applicant himself was also asked by the decision-maker whether he wanted to say anything else that was relevant to his claim. He accepted the invitation and proceeded to do so.

The decision-maker approached the hearing in an inquisitorial manner and the transcript records in the order of ninety-five questions, most of which were open-ended.  A number of the questions asked were confrontational in the sense that apparent inconsistencies between the applicant’s various statements were directly raised with the applicant.  Strong doubts were expressed to the applicant and his representative in relation to the applicant’s contentions as to alleged inaccuracies on the part of interpreters and translators.

In my opinion, it is not a requirement of s 425 that all evidence must be adduced orally at the hearing. Evidence can be adduced in documentary form by way of statements and other written material in support of the case to be advanced. There is much to be said for a decision-maker putting to the applicant, or those assisting him, any apparent inconsistencies perceived to arise in the evidence of the applicant. This gives the applicant a chance to meet and resolve any difficulties which are experienced by the decision-maker.

It is also relevant to bear in mind that the hearing does not take place unless the circumstances are such that a decision favourable to the applicant is not made on the written or documentary material. It serves to alert an applicant that it is necessary to place before the RRT fully the case intended to be put forward. This can be done by preparing statements in advance and making them available to the RRT before or at the hearing, and that is what happened in the present case. The applicant was given a full opportunity, in my view, to place before the RRT anything he, or those advising him, considered necessary or appropriate and he was accorded a proper hearing in accordance with the Act. Accordingly, I am not persuaded that there has been any failure to comply with s 425 of the Act or of any standard of procedural fairness.

2.  Actual bias of the decision-maker.

The submission advanced by the applicant that the decision-maker demonstrated actual bias is said to be supported by reference to matters raised by the RRT in relation to interpreters and immigration officers.  It is put by the solicitor for the applicant that these comments indicated that the decision-maker had prejudged the matter and that an early, fixed view had been reached on the applicant’s level of credibility, which was incapable of alteration.  This submission is founded on statements in the transcript before the RRT along the following lines:

“Can you tell me how it’s possible that a professional interpreter would make such glaring mistakes?

…

I find it hard to believe that a TIS interpreter would say ‘You’re saying too much’.
…

My question to you is you state in your statutory declaration , ‘I never stated this’, so therefore …, Mr Addo, the immigration officer was lying.Is that right?
…

So, therefore, Mr Addo, the immigration officer is lying again?

…

Mr Addo, my question is, so therefore once again the immigration officer is lying.Why would he make this mistake.”

However, reading the transcript as a whole, it seems to me that the decision-maker was exploring apparent inconsistencies and was also confronting the applicant and his legal representative with the doubts and difficulties entertained by the decision-maker in accepting the applicant’s evidence.  This questioning does not, in my view, in any way indicate actual bias, nor does it support a view that the decision-maker had a closed mind to the applicant’s case.

3. Failure to act fairly and in accordance with substantial justice and the merits of the case – s 420 of the Act.

The solicitor for the applicant submits that the RRT did not test the evidence of the applicant’s witnesses about the applicant’s clan and declined to hear the witnesses’ evidence about the death of the applicant’s father.  The solicitor for the applicant submitted that this evidence had the capacity to corroborate important aspects of the applicant’s case.  It is said that there was a failure to consider other cogent evidence relating to the applicant’s clan.

In relation to this issue, the question of the applicant’s clan was addressed by the applicant in his statutory declarations.  These were before the RRT during the hearing and were said to be supporting evidence.  They were specifically referred to in the RRT’s decision.  The deficiency and weight of the evidence in respect of the question of the clan was purely a matter of fact and degree and was a matter within the province of the RRT as the body deciding the factual issues.  In view of the specific references to this evidence, it appears to me that the question raised goes to the weight of the evidence and does not provide a ground for review before this Court.

It is said that the RRT did not test the evidence of the applicant’s witnesses about the applicant’s clan.  It is also said that it declined to hear the witnesses’ evidence about the death of his father, which had the capacity to corroborate important aspects of the applicant’s case.  Again, although this is a question of fact for the RRT members and does not raise any issues of law.  I am not persuaded that the circumstances and the material placed before the RRT were such as to call for further inquires as to the applicant’s clan or to entertain additional evidence concerning the death of the father.

A second matter raised in relation to this submission was that the RRT did not inform the applicant that it would not accept the statutory declaration submitted on his behalf.  Accordingly, it is said that the applicant was denied an opportunity to seek an adjournment to call potentially crucial evidence which was available to him.

As a general principle, there is no duty upon a decision-maker at a hearing to foreshadow the possibility of non-acceptance of evidence.  It is a matter for the RRT after the hearing to weigh and consider all the evidence placed before it.  There is no duty to summon a further hearing or to request further evidence or representation arising from non-acceptance of evidence, except of course, in exceptional circumstances.  Most often final views as to credibility or as to the merits of the case will arise after a careful review of the evidence in the light of submissions and after the hearing.  In addition, the applicant must have been aware prior to and during the hearing of the possibility that material in the statutory declarations or document material may not be accepted and might call for corroboration.  Accordingly, I do not consider that there is any failure or omission on the part of the RRT in this respect.

For these reasons, I am satisfied that the RRT did not fail to act fairly and in accordance with substantive justice and the merits of the case.

The applicant submits that the RRT ignored cogent evidence from the applicant’s witness and five declarants who, it is said, had direct and intimate knowledge of the clan question. It is said that this amounts to an error of law, being an error involving incorrect application of the law to the facts.  This ground is simply not applicable in the present case because the reasons of the RRT expressly point out that the younger brother of the applicant gave evidence wherein he stated that he was also a Biyomal and that the applicant was a Somali citizen.  The decision-maker referred to several statutory declarations signed by relatives in Australia, and one by a Somali community organisation directed to establish his identity, nationality and clan affiliation.  It is evident from reading the reasons for decision in their totality that this evidence was not ignored but was taken into account and weighed against other evidence and material before the decision-maker.

I am not persuaded that the RRT ignored any evidence or information going to the question of the applicant’s clan or that it failed to consider the cumulative effect or factors that tended to establish the applicant’s case in this respect.

4.  Peace in Somalia

The challenge to the RRT finding in this respect is that during the hearing the applicant was not invited to submit any material in respect of this issue and no material was submitted on his behalf.  A number of submissions were made by the applicant and his solicitor in that respect, to the effect that there was no genuine peace process; that there had been many cease-fires and other meetings before the January 1998 meeting and that nothing has changed; that the people who signed the Cairo Agreement had no control over the country; that gangs and groups were looting everything and, finally, that it was too early to suggest that there is peace in Somalia as a result of the signing of this agreement.  The applicant points to the claim that inter-clan conflict had been going on in Somalia since 1991 and that the peace agreement had only been in effect for 27 days at the time of the hearing and for 40 days when the RRT made its decision. 

The reasons of the RRT indicate a comprehensive consideration of the material relating to the current position in Somalia, including a consideration of the Cairo Agreement in December 1997 and the establishment of a National Reconciliation Conference in February 1998 to set up a federal, state and transitional government.  It was noted that this was postponed to 31 March 1998 due to logistical problems.  Reference is made to an extract from “The Economist”, which stated that there was an air of normality settling over the capital of Somalia after more than 6 years of fighting and fear.  The report goes on to distinguish between the 31 January 1998 cease fire and the previous cease fires and emphasises the importance of the Cairo Agreement, which aims at forming a structure of a future Somali state.  On 5 March 1998, it was said that the member who constituted the RRT in the present case was sent information by the Refugee Advice and Case Work Service in relation to another case which included a report dated 16 February 1998 that four people had been killed and five wounded when rival militiamen fought a pitched battle south of the capital.  It is not suggested that this was preferred as evidence in the present case.

Having regard to the foregoing, I am not satisfied that the applicant has made good its case that the RRT has ignored cogent evidence.

5.  No evidence

It was also submitted that the RRT erred in law in respect of s 476(1)(g) and s 476(4)(a) of the Act in that the material before it was insufficient to reasonably satisfy the RRT that the requirements laid down by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 were met. This decision was expressly referred to in the RRT reasons. Again, the sufficiency of the evidence being a matter of fact is a matter for the RRT.

Of course, in some cases the Court may be satisfied that the circumstances are so extreme that is it obvious a significant fundamental error has been made.  That is not the position in the present case.  For the reasons given above I am not satisfied that this ground has been made out.

6.  Error of Law

It is said that the material before the RRT was not capable of meeting the tests laid down by the High Court and it is also said that the inference must therefore be that the RRT must have misinterpreted or misapplied the relevant test.  Again, having regard to the considerations raised above and after a detailed reading of the reasons for decision, I am not satisfied that any error has been disclosed which could provide any foundation for an inference that the RRT misinterpreted the applicable law or misapplied the proper test.

The requirement under s 476(1)(g) of the Act is that in order to make out an error of law under that section it is necessary for the evidence to disclose that the decision-maker was required by law to reach that decision only if a particular matter was established and that there was no evidence or other material from which the person could reasonably be satisfied that the matter was established.

This ground has not been established

Conclusion

The application for review should be dismissed with costs.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             11 December 1998

Counsel for the Applicant:	Mr C Colborne
Solicitor for the Applicant:	Legal Aid Commission
Counsel for the Respondent:	Ms L McCallum
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 August 1998
Date of Judgment:	11 December 1998