Bakongo, Joseph Wamulumba v Minister for Immigration and Multicultural Affairs

[1998] FCA 821

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 41 of 1998

BETWEEN:	JOSEPH WAMULUMBA BAKONGO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	10 JULY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

The applicant applies for review of a decision of the Refugee Review Tribunal given on 7 January 1998 by which the Tribunal affirmed a decision of a delegate of the respondent Minister not to grant a protection visa. 

Developments before this court to which I will refer later make it unnecessary for me to give a detailed account of the reasons for decision of the Tribunal. The applicant claimed to be a citizen of the Democratic Republic of Congo (formerly Zaire).  He arrived in Australia on 11 July 1997 without any travel or other identification documents as a stowaway on a ship which had travelled to Australia from South Africa via Taiwan. On 20 August 1997, he lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs (“the Department”) under the Migration Act 1958 (“the Act”). On 29 August 1997, a delegate of the Minister refused to grant a protection visa and on 5 September the applicant applied to the Tribunal for review of that decision.

The Reasons for Decision of the Tribunal set out the definition of a refugee in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees, then explored the various elements of the definition and recent political developments in Zaire (the Reasons for Decision refer to the country by its former name and I shall do likewise).

The Reasons for Decision then deal with the applicant’s “claims and evidence”. The applicant’s claim was that he was born on 5 October 1972 in Kishanasha, Kisangani in Zaire, that he spoke Swahili, was a farmer, and was by religion a Christian (Catholic).  He claimed that his parents were members of the Mouvement Populaire de la Révolution (“MPR”) which was founded in 1966 and which was loyal to the former President Mobutu Sese Seko Kuku Ngbendu Wa Za Banga.  He claimed that he also belonged to the MPR.  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 Laurent Kabila took over. The applicant’s claim was that his two brothers were killed in January 1997 by members of the ADFL and that ADFL members came to his home in February 1997 to arrest him.  He claimed that he was not at home but that his parents were and were killed.

His claim was that he then fled his village and went to another part of Kisangani where he met a friend, that he and his friend hid in the back of a trailer taking rice to the Congo, and that they travelled to the port of Matadi where they boarded a ship to South Africa. He claimed that they stayed there for three months but found it difficult to survive and left South Africa by stowing away on another ship, which brought them to Australia via Taiwan.  He claimed to fear that the ADFL (now in power) would persecute him because of his refusal to support the current government.  He claimed to fear torture and death because of this.

The Tribunal did not believe him and gave reasons which included references to his inability to speak French, the official language of Zaire, and the fact that he claimed that the journey to Kisangani to Matadi took only some three days rather than three weeks which, because of the state of the roads, was apparently the minimum time that such a trip would take.  The Tribunal also referred to a lack of confidence in the applicant's familiarity with place names in Zaire.  Its conclusion was that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The applicant filed his present application for review on 20 January 1998.  There have been several adjournments pending resolution of the question whether the applicant was to have legal aid.  The Court was informed that the applicant's application for review of an initial refusal of legal aid had itself been unsuccessful and so the application was listed for hearing on 26 June 1998.  When the applicant appeared on that occasion I asked him if he had been advised of the outcome of his application for review of the refusal of legal aid and he said that he had not.  This created an embarrassment and I informed the applicant that I would not, in the circumstances, hear and decide the case.  However, with the applicant’s consent, I decided to hear it but not to the point of decision so that he could await formal notification of the failure of his application for review and, if he wished, seek other legal representation.

The hearing then proceeded. The applicant, who has been assisted by an interpreter throughout, informed the Court that his name was not Joseph Wamulumba Bakongo at all but was “Dallas”; that he had never been to Zaire in his life; that he was born in Brazil; that at the age of about one year his parents took him to Turkey; that he lived in Turkey until a time not precisely identified but apparently in 1996 or 1997, when he went by ship to South Africa; and that he stowed away on a ship which brought him from South Africa to Australia.  He also said that he was very ill and feared being deported to a country where his health would not be as well looked after as it is in Australia.  I tried to make it clear to the applicant that the facts as he was now recounting them would not qualify him as a refugee.  Nonetheless, notwithstanding the apparent hopelessness of the case, since I had told him that I would not give a decision that day, I thought I should adhere to that position, and I adjourned the proceeding to today.

Ms Davis of counsel has, as I understand it, been briefed only yesterday to appear for the applicant on a pro bono basis and I wish to record that the Court has been assisted by the fact that she has represented him this morning and has no doubt been able to explain to him his current position.  She does not seek a further adjournment and, if I may say so, this is a sensible course to follow.

It is clear that the decision of the Tribunal must be affirmed and I will shortly do that. The applicant may have fabricated his story in relation to Zaire in collaboration with another applicant for a protection visa whose story was virtually identical: see the decision of Emmett J in Abako v Minister for Immigration and Multicultural Affairs (NG 40 of 1998) unreported, 18 March 1998. 

Be that as it may, in light of what the applicant informed the Court on the previous occasion, the orders of the Court are as follows:

1. That the decision of the Refugee Review Tribunal on 7 January 1998 be, and the same is hereby, affirmed.

1. That the applicant pay the respondent's costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:

Dated:             16 July 1998

Counsel for the Applicant:	Ms R M Henderson (on 26 June 1998) (Mr A Pearson, solicitor, appeared on 10 July 1998)
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Ms F Davis (on 10 July 1998 only)
Date of Hearing:	26 June, 10 July 1998
Date of Judgment:	10 July 1998