Domingo v Minister for Immigration and Multicultural Affairs
[2001] FCA 1403
•21 AUGUST 2001
FEDERAL COURT OF AUSTRALIA
Domingo v Minister for Immigration & Multicultural Affairs
[2001] FCA 1403JOHN DOMINEK DOMINGO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W61 of 2001
HILL, O'LOUGHLIN and CARR JJ
21 AUGUST 2001
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 61 OF 2001
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
JOHN DOMINEK DOMINGO
AppellantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RespondentJUDGES:
HILL, O'LOUGHLIN & CARR JJ
DATE OF ORDER:
21 AUGUST 2001
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The appellant pay the respondent's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 61 of 2001
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
JOHN DOMINEK DOMINGO
AppellantAND:
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
JUDGES:
HILL, O'LOUGHLIN & CARR JJ
DATE:
21 AUGUST 2001
PLACE:
PERTH
REASONS FOR JUDGMENT
CARR J:
INTRODUCTION
This is an appeal from a judgment of a judge of this Court, given on 20 February 2001, dismissing the appellant's application for an order of review of a decision of the Refugee Review Tribunal. On 15 May 2000 the Tribunal had affirmed a decision by a delegate of the respondent not to grant a protection visa to the appellant. The appellant is now about 28 years of age and is a national of Angola. He arrived in Australia on 4 September 1999 as a stowaway. Since his arrival he has been held in a detention centre. He applied for the grant of a protection visa on 14 September 1999. On 8 February 2000 a delegate of the Minister determined that the visa not be granted.
FACTUAL BACKGROUND AND THE TRIBUNAL’S REASONS.
The relevant facts sufficiently appear from the following five paragraphs of the Tribunal’s reasons:
“The Tribunal accepts that the Applicant is an Angolan national who may have difficulty proving this to Angolan officials due to his lack of documentation. Still, the Tribunal finds on earlier‑cited evidence that the government of Angola would not prevent his repatriation to Angola if he wished to return, for the evident restrictions on freedom of movement within the country are largely extortion‑linked and therefore criminal, which means they are not convention‑related; they evidently do not affect comprehensively the question of voluntary return of Angolans from neighbouring nations.
The Tribunal accepts that the Applicant's father was a UNITA supporter and occasional activist, whilst holding down a job as a stevedore. The Tribunal accepts that he was killed by MPLA agents in the power struggle that has beset the country for a quarter century or more. The Tribunal accepts that the Applicant's mother took him out of Angola in fear for their lives and that she was forced to leave him at some stage never to see him again. However, the Applicant did not satisfy the Tribunal that he would face persecution in Angola for reasons of an imputed attachment to his late father's political beliefs. The Tribunal could find no evidence of government forces in the present day operating in such a way, although, as shown, it could find some evidence, in certain localities, of other harsh and repressive practices aimed at releasing populations from UNITA influence, and plenty of evidence of UNITA guerillas, in similar and other localities, resorting to a wide range of brutal tactics to instil fear into civilians generally.
[I will refer to this paragraph, later in these reasons, as “the Second Paragraph”].Because persecution involves systematic conduct aimed at an individual or at a group of people, "it is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances” (Periannan Murugasu v Minister for Immigration and Ethnic Affairs, unreported, Federal Court, Wilcox J, 28 July 1987, at 13). However, “where a community is being systematically harassed to such a degree that the word persecution is apt”, then an individual member of that community may have a well‑founded fear of persecution (at 13). On the evidence in this case, the Applicant’s claims as to fear of being caught in the crossfire between warring sides is not a claim that can be covered by the Convention, as tragic as the situation is for innocent and often unaligned civilians in the middle of this conflict.
The Applicant’s claims about being homeless, jobless and lonely in Angola are compelling, but cannot be the basis of a decision in this jurisdiction.”
The Tribunal then purported to deal with the matter of effective protection, and then concluded:
“On the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of convention‑related harm in Angola or, for that matter, in Mozambique. He is not a refugee.”
THE DECISION AT FIRST INSTANCE
I think it is sufficient, for present purposes, simply to set out paragraphs 12 and 13 of the reasons for decision of the learned primary judge. They read as follows:
“At the commencement of its reasons, the Tribunal set out correctly the relevant law on the meaning of well-founded fear of persecution for the purpose of the Convention and the Act. In that regard the Tribunal said as follows:
“A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.”
Therefore, unless subsequent reasoning of the Tribunal that explained how the Tribunal applied the law to the facts before it revealed that the Tribunal departed from or misapplied the law, due application of the law should be assumed.
Notwithstanding that the material before the Tribunal recorded that Government forces regularly committed substantial abuses of human rights throughout Angola, including kidnappings, extra-judicial executions, torture and rape, the Tribunal found that that material did not show that Angolan authorities resisted the propagation of UNITA influence in Angola by persecuting relatives of known UNITA supporters or activists, per se. The Tribunal relied upon that finding to conclude that the applicant now faced no risk that Angolan authorities would mete out persecutory treatment to him as the son of a former UNITA supporter eliminated by government forces in 1980. It was not submitted that the finding of fact made by the Tribunal was unsupportable or not available on the material before it. Therefore, the reasons provided by the Tribunal for the decision it made, namely, that it was not satisfied that the applicant had a well-founded fear of persecution, do not display any misunderstanding of the requirements of the law, and, therefore, no ground for review is established under s 476(1)(e) of the Act.”
THE APPEAL
The point in the appeal is reflected in paragraph 5(a) of the particulars of appeal set out in submissions prepared by senior counsel on behalf of the appellant (who appeared on a pro bono publico basis). Paragraph 5(a) reads:
“His Honour should have concluded that the Tribunal had erred by requiring the applicant to satisfy it that he "would" face persecution if he returned to Angola by reason of the political opinion to be imputed to him as the son of a former UNITA supporter when the appropriate test was whether it was satisfied that there was a “real chance” that the applicant may suffer persecution.”
MY REASONING
The language used in the Second Paragraph is, in my view, by no means perfect. I refer in particular to the phrase, “… the Applicant did not satisfy the Tribunal…” and the further phrase “… would face persecution …”. Senior counsel for the appellant submitted that, despite the Tribunal having in its reasons correctly set out its understanding of the relevant law, an examination of the manner in which the Tribunal approached the application of the relevant test, as referred to in the Second Paragraph, showed that it had not properly applied that test and thus erred in the manner referred to in paragraph 5(a). Counsel took us to a passage from some country information supplied in a report by Human Rights Watch (which was in evidence before the Tribunal), which passage reads:
“Government forces, and civilian groups armed by the government, tortured and killed thousands of suspected UNITA supporters - civilian non‑combatants - between October 1992 and January 1993 in a purge of the cities after the war resumed. Thousands more civilians have been killed or injured in the indiscriminate bombing of the population centres in UNITA‑controlled zones during 1993 and 1994.”
I think that there are two aspects about that part of the above report. First, the reference is to killing suspected UNITA supporters between October 1992 and January 1993. Secondly, there was nothing in that part of the report to the effect that the Angolan government would impute a father’s political beliefs to a son and for that reason persecute the son.
In argument before us, senior counsel for the appellant conceded that if the words “a real chance of” had appeared before the word “persecution” in the Second Paragraph, then there would be no reviewable error. It is significant, in my view, that after having, perhaps unhappily, used the words that it did in the Second Paragraph, the Tribunal returned to the formulation of a real chance of convention‑related harm in the fifth of the paragraphs which I have quoted above.
In my view, it has not been demonstrated that the Tribunal fell into reviewable error in the manner contended for. I do not think that the primary judge erred in law, and for that reason I would dismiss the appeal.
HILL J:
I agree with the comments that have been made by Carr J and the orders which his Honour proposes.
There is a well recognised practice of the Refugee Review Tribunal for its reasons for decision to commence with a discussion summarising the case law, commencing with Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, and extending at least to the decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. This discussion takes a standard form. It is unexceptionable in law.
There is, however, a possibility that the Tribunal member may nevertheless disregard the law that has been stated in this way and apply some other and unexpressed test which involves an error of law. Should this be the case, the mere recitation of correct legal principle will not save the Tribunal's reasons from being found on review to involve an error of law. If the real application of the law to the facts is not in accordance with the statement of law set out, then there would be reviewable error and this Court would set aside the decision.
However, it does not follow from this that this Court should lightly assume, when the reasons of the Tribunal correctly set out the law, that the Tribunal has applied some wrong principle merely because some unhappy choice of language has been used in the Tribunal's reasons which, if one took a highly technical approach, might involve an error of law, but which generally when read as a whole could be seen to be merely careless expression. The present case, as the learned primary judge observed, is one where, when the reasons of the Tribunal are read as a whole, it is apparent that the Tribunal has not erred in law in applying the relevant tests to the facts of the case. Accordingly I agree that the appeal should be dismissed.
There is a second ground of appeal, but it is agreed by senior counsel for the appellant that it arises only if the appeal on the first ground is successful. Accordingly it is not necessary to consider this second ground in detail. I should say, however, that the second ground concerned the question of whether effective protection was available to the appellant in a third country, Mozambique. The Tribunal did decide, while recognising it was unnecessary to deal with the issue, that there was effective protection in Mozambique, although it appears not to have given any reasons and to have perhaps not considered carefully, or at all, material which related to this matter in the appellant's evidence. However, as the matter does not arise, it is unnecessary to make any further comment about it.
O’LOUGHLIN J:
I agree, for the reasons that have already been given by Carr J, that this appeal should be dismissed.
HILL J:
The orders of the Court will be:
1. The appeal is dismissed.
2. The appellant pay the respondent's costs of the appeal.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, O'Loughlin & Carr JJ.
A/g Associate:
Dated: 3 October 2001
Counsel for the Appellant:
Mr N W McKerracher QC (who appeared on a pro bono publico basis).
Counsel for the Respondent:
Mr M T Ritter
Solicitor for the Respondent:
Australian Government Solicitor
Date of Hearing:
21 August 2001
Date of Judgment:
21 August 2001
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