Bilwani v Minister for Immigration and Multicultural Affairs

[1999] FCA 1743

FEDERAL COURT OF AUSTRALIA

Bilwani v Minister for Immigration & Multicultural Affairs [1999] FCA 1743

MIGRATION - protection visa - Tribunal affirmed decision of Minister not to grant a visa - whether the statement of reasons provided by the Tribunal complied with the obligations imposed by s 430 - whether the Tribunal's decision was based upon a non-existent fact which did exist.

Migration Act 1958 (Cth), Part 8, s 430, s 430(1)(c), s 476(1)(a), s 476(1)(g), s 476(4)

Comcare Australia v Lees (1997) 151 ALR 647 (referred)
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (followed)
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 (referred)
Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 (referred)

SERGE OWOWOS BILWANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 754 of 1999

FINN J
SYDNEY

8 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N754 OF 1999

BETWEEN:	SERGE OWOWOS BILWANI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	FINN J
DATE OF ORDER:	8 DECEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be 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	N754 OF 1999

BETWEEN:	SERGE OWOWOS BILWANI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	FINN J
DATE:	8 DECEMBER 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant, Serge Owowos Bilwani, is a national of the Democratic Republic of Congo ("Congo"). He has been refused a protection visa, both the delegate of the respondent Minister and the Refugee Review Tribunal ("the Tribunal") being not satisfied that he was refugee. The present proceeding seeks a review of the Tribunal's decision under Part 8 to the Migration Act 1958 (Cth) ("the Act").

2. Mr Bilwani has represented himself, his submissions being made through an interpreter. The application as filed does not descend into detail as to the grounds of review relied upon. It merely asserts that the Tribunal's decision "was wrong". As presented, his challenge seemed to be calculated to invoke (i) s 476(1)(a) of the Act in that Mr Bilwani claims that contrary to the requirements of s 430(1)(c) of the Act the Tribunal's statement of reasons did not address material questions of fact raised by him; and (ii) s 476(1)(g) in that it is claimed the Tribunal's decision was based on the non-existence of a fact that did exist.

3. I should state at the outset that in substance Mr Bilwani has sought no more than to have this Court engage in merits review of the Tribunal's decision.  Put shortly, the case he advanced to the Tribunal was not accepted in its essentials, the Tribunal weighing what he relied upon against independent evidence and country reports touching the issues he raised.  It preferred the latter.  The Tribunal equally was unimpressed by the applicant's failure to mention "relevant information" until late in the processing of his application.  So clear cut is this case that little purpose would be served by a lengthy narrative of the factual setting and of the Tribunal's reasons for decision.

4. The applicant's claim for refugee status would appear to have three bases, the first relating to an incident while he was working as a Red Cross volunteer in September 1998;  the second, to his membership of, and participation in the activities of, the Resemblement Congalais pour la Democratie ("the RCD"), a militia group opposed to the Kabila Government in Congo;  and the third, to his imputed political opinion based on his residence in the east of Congo coupled with his having made a number of trips to Uganda and Rwanda.

   (i)        The Red Cross Claim 

5. He alleges that in the course of his work as a Red Cross volunteer he helped to bury more than 300 people massacred by the RCD in Goma, a relatively large town in east Congo, on 14 September 1998.  In December 1998 he spoke to a radio journalist who recognised him as a Red Cross volunteer by his uniform.  He told the journalist about the massacre and the journalist broadcast the information.  Other members of the Red Cross identified him as the source of the information and he was then alerted by another Red Cross member that the troops were searching for him and he fled the country.

6. While accepting that Mr Bilwani was involved as a Red Cross worker in the removal of bodies of people killed in Goma in 1998, the Tribunal did not accept that he gave information of a massacre to a journalist resulting in the RCD attempting to capture and harm him.  His claims, the Tribunal characterised as lacking in credibility.  To justify this conclusion it referred variously (a) to contemporary newspaper reports at the time of events in Goma, these suggesting both that the massacre did not occur but that a battle between warring groups resulting in some deaths had occurred; (b) to the RCD's own publicity of the events of 14 September 1998;  and (c) to the accounts of eye witnesses who were obviously prepared to talk to journalists.

   (ii)       The RCD membership claim

7. It was only at the Tribunal hearing that Mr Bilwani raised this claim.  It was dealt with by the Tribunal in the following way:

   "While I acknowledge that applicants may sometimes omit some evidence from their submissions, I do not believe that someone of Mr Bilwani's obvious intelligence would have failed to mention that he had been a member of an anti-government group and involved in anti-government activities which he believed would be known to the government and cause him problems on his return from his protection visa application.  Mr Bilwani claims that he did not provide this information in his initial application because he knew he would have an opportunity to give oral evidence and decided to wait until then before giving this information.  However, I find this explanation implausible, particularly as he had the assistance of a qualified adviser when he lodged his initial application and must have been aware of the importance of mentioning any relevant information.  I do not believe that Mr Bilwani belonged to the RCD, nor that he participated in any activities organised by the group."

   (iii)      Imputed Political Opinion

8. This claim seems to have grown out of the RCD membership claim, though it appears to have been free-standing as presented.  Its burden is that the applicant would be targeted by the Kabila government and its supporters because he would be suspected of supporting the RCD.  Reliance on this was placed in the geographic location of Goma in eastern Congo;  his participation in RCD activities (not believed by the Tribunal as I noted earlier);  and his travels to Uganda and Rwanda.

9. The Tribunal dealt with this as follows:

   "I have also considered Mr Bilwani's claim that he would be considered a sympathiser of the RCD by DRC authorities because he lived in Goma and traveled to Uganda and Rwanda.  Clearly, Mr Bilwani would not face this risk if he returned to Goma and I do not consider he has a well-founded fear of persecution for a convention reason in Goma." 

   The Tribunal went on to say:

   "I do not believe there is a real chance that Mr Bilwani would be seen as someone who supported the rebels and suffered persecution in Kinshasa or other areas under the control of the Kabila government."

10. It then considered the levels, timing and duration of persecution that did occur after the August 1998 uprising in Congo and the persons against whom it was directed, that is, people of Tutsi ethnicity.  Mr Bilwani was not a Tutsi.  Having rejected his claims to being politically active and in light of its appreciation of the treatment of people in the areas under the control of the Kabila government, it reiterated the conclusions I have quoted. 

11. It should be stated in relation to all three of the claims and the conclusions arrived at by the Tribunal that there clearly was material before it that could justify its reaching those conclusions.

    The Present Application

    (a)       The s 430/s 476(1)(a) Claim 

12. All that Mr Bilwani has been able to point to in support of this claim is that the Tribunal and its reasons did not refer to all of the information he provided to it concerning his situation and events in Goma at the time of the Red Cross incident and that it did not fully evaluate or take into account the risks he faced if he goes to Kinshasa because of the circumstances in eastern Congo.

13. As in other areas of government decision-making, the obligation imposed on the Tribunal to provide a written statement recording its reasons for decision serves a variety of purposes one of which is to promote public confidence in the integrity of the administrative processes itself:  see generally on the purposes of reasons statements, Comcare Australia v Lees (1997) 151 ALR 647 at 656. Nonetheless, it must be borne in mind that such a statement is that of an administrative decision-maker. While the statement is meant to inform, it is not to be scrutinised upon an over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. "Any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

14. Importantly those proper principles of review do not allow for doubtful fact-finding to be characterised as an error of law.  As Kenny J commented in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 at para 146:

    "[a] tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning."

    Likewise, those "proper principles" do not require that it be shown that all matters raised in the proceedings are dealt with in the reasons:  "it is enough that the findings and reasons dealt with the substantial issues on which the case turns":  Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414.

15. What Mr Bilwani is presently seeking is to go beyond the identification of the substantial issues, and the reasons and findings dealing with those, and to trespass into the impermissible territory of merits review. It is not the responsibility of the Tribunal in complying with the requirements of s 430 to refer to, and to respond to, each and every item of information provided by an applicant to it, the more so when the significance to be attributed to such information might itself be contingent upon a finding on the applicant's credibility. Here there can be no doubt that the Tribunal identified the material questions of fact on the information before it. In my view it deal with them adequately and appropriately. Mr Bilwani was not believed. There was no reviewable impropriety committed by the Tribunal in reaching its decision on his credibility. The present ground of complaint is no more than an attempt via s 430 to circumvent the consequences of that adverse decision. It is without warrant. I can discern no reviewable deficiency in the Tribunal's reasons statement.

    (b)       The s 476(1)(g) claim

16. This claim, misguidedly, seems to be no more than a challenge to the finding that the Tribunal made that Mr Bilwani was not a member of the RCD and that he did not engage in activities organised by it. This claim was rejected squarely for reasons of credibility. It was, in the circumstances, open to the Tribunal to arrive at the decision it did. All the claim amounts to is again one of merit review. There is no basis at all for invoking s 476(1)(g) even without having regard to the limitations imposed on that ground by s 476(4).

17. I will order that the application be dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:             15 December 1999

The applicant appeared in person
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 December 1999
Date of Judgment:	8 December 1999