Ellala v Minister for Immigration and Multicultural Affairs

[2000] FCA 1233

FEDERAL COURT OF AUSTRALIA

Ellala v Minister for Immigration & Multicultural Affairs [2000] FCA 1233

Minister for Immigration & Multicultural Affairs v Thiyagarajah 2000 ALJR 549 referred to

ATENU JANKA ELLALA and MISRAK TAMERAT DEBERENEH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N180 OF 2000

JUDGES:      BEAUMONT, RYAN & DOWSETT JJ
DATE:           10 AUGUST 2000
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N180 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ATENU JANKA ELLALA and MISRAK TAMERAT DEBERENEH APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	BEAUMONT, RYAN & DOWSETT JJ
DATE OF ORDER:	10 AUGUST 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal 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	N180 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ATENU JANKA ELLALA and MISRAK TAMERAT DEBERENEH APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	BEAUMONT, RYAN & DOWSETT JJ
DATE:	10 AUGUST 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT (Ex Tempore)

BEAUMONT J:

1. The first appellant and his wife arrived in Australia in September 1994.  The first appellant held a student visa for a term of two years, however in November 1995 the appellants applied for a protection visa.  A delegate of the Minister decided that the appellants were not entitled to such a visa by a decision made in November 1997.

2. The appellants sought review of that decision before the Refugee Review Tribunal at a hearing conducted by that Tribunal in September 1998.  In its decision made in February 1999, the Tribunal affirmed the decision of the delegate.  Thereafter the appellants sought judicial review of the Tribunal's decision.  The matter was heard at first instance by a single Judge of the Court, Burchett J, who held that the application for judicial review should be dismissed.  The appellants now appeal from his Honour's decision.

3. In order to understand the issues on the appeal, it will be necessary to say something about the process of reasoning of the Tribunal.  The Tribunal noted the claims of the appellants and the evidence in support of those claims to the following effect.  The first appellant was a 37 year old Christian man of Amharic/Gurage ethnicity who was raised in Zuway in the South Shoa region of Ethiopia but who had lived in Addis Ababa since he started university in 1983.  The South Shoa region where the first appellant grew up was originally an Oromo area and his family had settled there about 100 years ago.  They were part of an Amharic elite who made up 5 to 10 per cent of the population but controlled most of the wealth.

4. His father, who had died when the first appellant was young, was a local chief and the first appellant would have inherited this position if the monarchy had not been overthrown in 1974.  When the revolution then occurred, most of the local Oromo people supported it and took the opportunity to act against his family.  Their property was confiscated, their home was searched by authorities and bombs were planted on their property.  The first appellant's uncle who had been responsible for him after the death of his family went to the hills and was ultimately killed in 1981.

5. The first appellant claimed that he joined the Ethiopian People's Revolutionary Party (EPRP), a revolutionary group which opposed the new government, in about March 1977.  He said to the Department that he had joined the EPRP because the local people supported the revolution.  At the hearing before the Tribunal the first appellant said that the local people were suspicious of him because he was a member of the elite and the authorities suspected him of supporting his uncle.  For this reason, he said, he had decided to join the EPRP. 

6. The Tribunal went on to note that the first appellant claimed that he joined the Provisional Office for Mass Organisations Affairs (POMOA) in January 1978.  He described POMOA as a group involved in fighting dissident groups, including the EPRP.  In his initial application to the Department, the first appellant had described his position as that of a district officer.  The Tribunal noted that in a statement made to the Department in March 1997, the first appellant said that he had been acting head of the POMOA branch office in Zuway, Adamitulu and Butajira districts.  He also said in that statement that he was responsible for co-ordinating and leading political cadres in the area; representing the government in matters relating to politics, the economy, social issues and administration; organising and supervising the work of the police and revolutionary squads, trade unions, youth, women and peasant associations and other mass organisations; and chairing the "red terror" committee, that is, the organisation charged with combating the EPRP in the area. However, he went on to state that he had never been involved in human rights abuses or killings and that he had been arrested in 1978 for failing to carry out his duties properly. 

7. In his interview with the Department the Tribunal noted the first appellant explained that POMOA was comprised of members of the Revolutionary Flame and other pro-government groups.  He said this was an official group working under the government.  The first appellant stated that after he joined POMOA more than 100,000 people were under his administrative control and that he had power to order the arrest or killing of any of these people.  He went on to reiterate that he was in charge of the police and other groups and that he could just "order whatever".

8. The Tribunal further noted that in a statement dated November the first appellant had said that he was acting head of POMOA for three months and also chairman of the Revolutionary Campaign's Coordinating Committee.  He said other committees, including those responsible for militia recruitment and revolutionary guards, reported to this committee, which was responsible for arresting people suspected of political crime.  He went on to state that in March 1978 the government had declared an amnesty for those involved in opposition groups provided they surrendered by a certain date. 

9. The Tribunal went on to state:

   “At the hearing I asked Mr Ellala to confirm his earlier statements that he had been in charge of all local organisations in his local area in early 1978.  Mr Ellala said that it was not exactly like that, but then confirmed that he had been in charge of POMOA.  I advised him that I had difficulty accepting that he would have been given this level of responsibility at such a young age, particularly as he had only recently been jailed for anti-government activities and did not appear to have had the kind of experience necessary for the job.  Mr Ellala maintained that his claims were true and said that it was not uncommon for people aged 15 or 16 to be in charge.  He added that he had been recruited to the position by a relative who already had a job in the district administration.  He added that it was really not such an important job. I noted that he had previously claimed that he had been in charge of a range of institutions including the police in an area with a population of about 100,000 people.  Mr Ellala said he had not really been in charge and added that 100,000 was a very small number of people compared to the overall population of Ethiopia.”

10. The Tribunal went on to note that the first appellant stated that he had been released from prison in July 1981 and that he had no involvement in politics after that time.  In his March 1997 statement the Tribunal noted the appellant said that records of his detention on charges of being "anti-revolutionary" could still be found in the Zuway Provincial Prison and other government offices.  He stated that he then completed his secondary schooling and went on to university and that in 1987 he joined the Ministry for External Economic Cooperation as an Assistant Expert.  The Tribunal went on to state:

    "At the hearing I observed that Mr Ellala’s education and successful career during the Mengistu years appeared to indicate that he had held a privileged position, which did not sit well with his claims regarding his imprisonment from 1978 until 1981.  Mr Ellala said that his success had been based on merit and his political background had not been important.”

11. The Tribunal noted that in 1991 the Mengistu regime fell and a new government headed by Tigray People’s Liberation Front (TPLF) was formed and that the first appellant claimed that he had been at risk of serious harm since the new government came to power because of his role in POMOA in 1977 - 78; and believed that he would detained or suffer other serious harm amounting to persecution if he returned to Ethiopia.

12. The Tribunal went on to note other aspects of statements made to the Department including statements made in his March 1997 statement.  These included references to the fact that in 1992 the first appellant had gone to Italy for a training program on the management of technical cooperation projects funded by the United Nations Development Project Program and that his passport had been taken from him when he arrived back in Ethiopia in December of that year.  However, the Tribunal noted that the first appellant had continued working at the Ministry of Internal Affairs and that in 1993 he had completed a diploma in Diplomacy at the Diplomatic Training Institute in Addis Ababa. 

13. The Tribunal then proceeds in some detail, which I need not attempt to summarise, to describe the claims developed by the first appellant arising essentially out of the material I have mentioned.  The Tribunal then stated its reasons for decision.  It first stated the legal test in this area which is unexceptional and to which no objection was taken either before the primary Judge or ourselves.  The Tribunal then stated, under the heading "Background", what appears to be an analysis of the documentation to which the Tribunal had regard in assessing the claims propounded on behalf of the first appellant.  Again, it is not feasible to attempt to summarise that material here.

14. The Tribunal then came to make an assessment of the claims made on behalf of the first appellant.  The Tribunal said:

    "Central to Mr Ellala's application for a protection visa is the claim that he was in charge of the POMOA in an administrative area with a population of more than 100,000 from January to April 1978.  I do not believe that Mr Ellala was in charge of POMOA in 1978.  He had only just turned 15.  According to his evidence, his family came from the old aristocracy, the group overthrown by the 1974 revolution, and was not liked or trusted by the majority of the local Oromo peasants who resented their previous power and wealth.  The uncle who had raised him had just taken to the hills and was at war with the cental government.  Less than a year earlier he had allegedly been detained, albeit briefly, for his membership [of] the EPRP, one of the main groups targeted by the government during the Red Terror.  He had no experience in administration or politics.  While it may well be that Mr Ellala decided he should align himself with a pro-government group in 1978 to avoid falling victim to the Red Terror campaign, it is simply not plausible that he would have been given complete control over the POMOA and institutions such as the police and mass organisations by the Dergue.”

    The Tribunal said that that alone was sufficient to justify a rejection of the first appellant's claim but went on to add some other reasons including the circumstance that the first appellant had failed to apply for a protection visa until more than a year after his arrival in Australia, noting that this raised questions about the genuineness of his fear of persecution in Ethiopia. 

15. The Tribunal added other reasons including the circumstance that, in the absence of a very strong commitment to the EPRP, which the first appellant did not profess to have, it seemed to the Tribunal "extremely unlikely that anyone would have decided to become a member and participate in anti-government activities at that time", that is as of 1977.  The Tribunal went on to note that the first appellant's ability to attend university and to gain employment in a responsible position in an important government ministry during the Mengistu years, "does not sit well with his claim that he was detained for three years for anti-revolutionary activities by the same regime.”.

16. The Tribunal further analysed the documentation available to the Tribunal in the assessment of the first appellant's claim of refugee status but said that whilst it accepted that, "there is resentment towards members of the Amhara settlers in Oromo areas", the Tribunal did not accept that this placed Mr Allala at risk of persecution in Ethiopia today.  The Tribunal said:

    “Apart from the alleged accusations that he was involved in human rights abuses while in charge of POMOA in 1978, which I do not accept, and minor problems following the 1974 revolution, Mr Ellala does not claim to have personally experienced any serious problems with Oromo people in Shoa or elsewhere.  Furthermore, Mr Ellala does not claim that other members of his family, who continue to live in the Shoa area, have experienced serious problems with the Oromo people because of their status as members of the Amhara elite.  He claims that his mother and sister were detained in an attempt to force him to return and be arrested.  As I do not accept that the authorities were seeking Mr Ellala, I do not accept that this claim is true.  The 1996 letter from Mr Ellala’s father-in-law states that his family had not experienced any serious problems at that time.  Mr Ellala has not lived in the Shoa area since 1983 and can clearly avoid any possibility of harm from violence or other harm at the hands of the Oromo people in Shoa by remaining in Addis Ababa or living elsewhere in Ethiopia. In these circumstances, I do not consider Mr Ellala faces a real chance of being persecuted by or at the instigation of Oromo people from the Shoa region, or anywhere else, on his return to Ethiopia.”

17. The Tribunal finally came to the position of the second appellant and noted that it accepted that she had been assaulted and as a result of the assault was no longer able to have children.  The Tribunal went on to say:

    ". . . there is no suggestion that the attack was motivated by a desire to harm her for any of the reasons contained in the Convention, nor that she has suffered further attacks or other harm from the soldier who assaulted her in 1991 or anyone else and this criminal attack and its tragic consequences do not make Ms Debereneh a refugee under the Convention.”

    As has been mentioned, the appellant sought judicial review and that application was heard by Burchett J.  His Honour noted that the Tribunal had rejected the first appellant's claim on two broad grounds, the first and primary ground being that the Tribunal denied the foundation of the first appellant's fears based on actions alleged to have been taken by him as acting head of the POMOA in his region. The learned primary Judge did question whether the Tribunal's consideration of these issues might have been more elaborate, but his Honour noted that the Tribunal did refer to the delay of making the application for a protection visa and his Honour went on to say that “. . . it was for the Tribunal to find the facts".

18. His Honour noted that in any case the Tribunal's decision was based on the second ground and that was that the Tribunal did not consider the first appellant to be at risk of any treatment which would fall within the Convention definition of persecution, even if he was liable to be prosecuted upon his return to Ethiopia by the Special Prosecutor's Office. Once more his Honour questioned whether the Tribunal's consideration of this matter was sufficiently elaborated in the reasons, but his Honour concluded:

    “On the basis of this material, and bearing in mind that Mr Ellala has not lived in the home region where he claims to be at risk for many years, it seems to me that it was open to the Tribunal to find any fear of persecution through wrongful prosecution by the Special Prosecutor’s Office not to be well-founded.  Although it is true there was evidence that numbers of persons had been detained improperly under the new government, the same evidence showed that a remedy was eventually provided, so that over a thousand detained persons were released.  The Tribunal was entitled to conclude that Mr Ellala would also be able to secure his release if charged without real foundation.”

    His Honour went on to say:

    “The evidence before the Tribunal did not require it, as a matter of law, to find that Mr Ellala would be exposed to a real chance of ill-treatment amounting to persecution for a Convention reason, even if he should be prosecuted upon his return to Ethiopia.  Accordingly, the application should be dismissed.”

19. The appellants now appeal from this decision.  They were represented before the primary Judge and until recently were represented by a solicitor.  The grounds of appeal, which apparently were prepared by the solicitor then acting, are as follows:

    “1.His Honour Burchett J. erred in finding that the evidence before the Tribunal did not require it, as a matter of law, to find that Mr Ellala would be exposed to a real chance of ill-treatment amounting to persecution for a Convention reason, even if he should be prosecuted upon his return to Ethiopia.

    2.. . . erred in failing to find that the Tribunal erred in law in not taking

    into account the totality of the material before it.

    3.. . . otherwise erred in law.”

20. It is true, as has been noted, that his Honour did make a statement to the effect of that in ground one.  However, it is clear that his Honour's statement was made in the context of the question of whether costs should follow the event.  His Honour came to the view that, because some of the issues had not been sufficiently elaborated by the Tribunal, the appellants should not be ordered to pay costs.

21. In any event, once his Honour's reasons are read as a whole, it is clear that his Honour expressed the view that it was open on the facts for the Tribunal to come to the conclusion that it did.  I would not myself read his Honour as approaching the matter upon the footing that the appellants, in order to obtain judicial review, had to show that the Tribunal was required to find in effect that the appellants were entitled to refugee status.

22. The true position of course is as stated by McHugh J in Minister for Immigration & Multicultural Affairs v Thiyagarajah 2000 ALJR 549 at 552:

    “The error of law which will attract review must be more than one found in a step taken at some stage in the decision-making process.  The involvement of which s476(1)(e) speaks postulates an error which finds a necessary consequence in the ultimate decision to affirm the refusal of the grant of a protection visa.”

    It is, of course, well established by authority that a mere error in logic, or a view of the facts which is not one which would necessarily commend it to the Court, are not themselves grounds of judicial review in the present context. When his Honour's reasons are read as a whole, it is clear that his Honour bore these well settled principles in mind. 

23. The next ground of review is that the primary Judge "erred in failing to find that the Tribunal erred in law in not taking into account the totality of the material before it". As was submitted by counsel for the Minister before us, it does not appear that this ground was pressed before his Honour.  In any event, in my view, there is no substance in it.  The documentary material before the Tribunal was voluminous.  The appeal book, for our purposes, consists of well over 300 pages.  It was simply not feasible or practicable for the Tribunal to attempt to summarise all of the documentation to which it had regard.  There is, in my view, no substance in this ground.

1. The third ground of appeal is that the primary Judge "otherwise erred in law".  In my opinion, there is no substance in this ground which, in any event, was not then articulated.  For those reasons, in my opinion, the appeal should be dismissed.

   RYAN J:

2. I agree that for the reasons explained by the learned presiding Judge, the appeal should be dismissed.  I would only add that in relation to the second appellant, the tribunal concluded in the penultimate paragraph of its reasons:

   “I accept that Ms Debereneh was assaulted in the circumstances claimed and that as a result of this assault is no longer able to have children.  However, there is no suggestion that the attack was motivated by a desire to harm her for any of the reasons contained in the Convention, nor that she has suffered further attacks or other harm from the soldier who assaulted her in 1991 or anyone else and this criminal attack and its tragic consequences do not make Ms Debereneh a refugee under the Convention.”

3. It is true that the learned primary Judge made no express reference to the separate claim of the second appellant to have a well founded fear of persecution if she were to return to Ethiopia.  However, his Honour's silence on that aspect clearly implies in my view an acceptance that the factual assessment made by the Tribunal in the passage which I have just quoted was open to it as a matter of law.  That assessment was to the effect that the abuse inflicted on the second appellant in 1991 was not attributable to a Convention reason and accordingly could not give rise to a well founded fear of future persecution for such a reason.  Accordingly I too would dismiss the appeal.

   DOWSETT J:

4. I agree in the reasons given by my brother Beaumont that in the orders that his Honour proposes.  I also agree with the remarks made by my brother Ryan.

   BEAUMONT J:  

5. The order therefore of the Court is that the appeal is dismissed.  The court is of the view that the usual rule should apply, that is to say costs should follow the event.  The formal order of the court therefore is appeal dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Ryan & Dowsett.

Associate:

Dated:              10 August 2000

Solicitor for the Appellants:	The Appellants appeared in person
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 August 2000
Date of Judgment:	10 August 2000