Habtagiorgis, Daniel Meelesse v Minister for Immigration & Multicultural Affairs

[1997] FCA 413

CATCHWORDS

IMMIGRATION - review - refugee status - entitlement to a protection visa - review of decision of the Refugee Review Tribunal - whether well-founded fear of persecution - real chance of persecution test - whether no evidence to justify the making of the decision - no substance in application.

Migration Act 1958 (Cth)
Migration Regulations

Chan Yee Kin v The Minister for Immigration and Ethnic Affairs
(1989) 169 CLR 379
Magyari v The Minister for Immigration and Multicultural
     Affairs (unreported:  22 May 1997)

No SG 57 of 1996

DANIEL MEELESSE HABTAGIORGIS v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

O'Loughlin J
Adelaide
22 May 1997

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 57 of 1996
  )
GENERAL DIVISION                 )

B E T W E E N:

DANIEL MEELESSE
  HABTAGIORGIS
  Applicant
  - AND -

THE MINISTER FOR
  IMMIGRATION AND
  MULTICULTURAL AFFAIRS
  Respondent

Coram:    O'Loughlin J
Place:    Adelaide
Date:     22 May 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant pay the costs of the respondent of and incidental to the costs of this application and order, which costs are to be taxed in default of agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 57 of 1996
  )
GENERAL DIVISION                 )

B E T W E E N:

DANIEL MEELESSE
  HABTAGIORGIS
  Applicant
  - AND -

THE MINISTER FOR
  IMMIGRATION AND
  MULTICULTURAL AFFAIRS
  Respondent

Coram:    O'Loughlin J
Place:    Adelaide
Date:     22 May 1997

REASONS FOR JUDGMENT

The applicant, Daniel Meelesse Habtagiorgis, arrived in Australia on 10 March 1995. On 19 May 1995, the applicant sought protection as a refugee by applying for a protection visa pursuant to s 36 of the Migration Act 1958 (Cth) ("the Act").  His application being unsuccessful, the applicant thereafter sought review from the Refugee Review Tribunal ("the Tribunal") but was again unsuccessful.  He now asks this Court to review the decision of the Tribunal.

The applicant, a bachelor, is aged 26 and is an Ethiopian national.  His mother and two of his brothers continue to live in Ethiopia but he also has a brother and a sister living in
Australia.  He has previously visited Australia, arriving on 11 November 1994 and departing four weeks later on 8 December.

In support of his claim for refugee status, the applicant stated that he was a member of the All Amhara People's Organisation ("the AAPO").  He further stated that in September 1994 he had been arrested and detained for a period of eleven days for participating in a peaceful protest calling for the release of the leader of AAPO.  He also claimed that during that period of detention he was tortured.  He maintains that AAPO is the main opposition group to the current Ethiopian People's Revolutionary Democratic Front ("the EPRDF") regime in Ethiopia and that he faces arrest and imprisonment on his return to his home country.

The applicant further claims that he involved himself in the organisation of a demonstration against the proposed merger of Ethiopian Airlines with Eritrean Airlines and that this participation would be further grounds for his arrest, interrogation and torture.

The recent political and social history of Ethiopia is indeed distressing.  The overthrow of the Amhara dominated Mengistu Government by the EPRDF in May 1991 marked the end of thirty years of civil war in Ethiopia.  That was a period of famine, brutal repression and massive human rights abuses.  The transitional government of Ethiopia, established under President Meles Zenawi by the EPRDF, together with other groups active in the anti Mengistu struggle, detained tens of thousands of former soldiers of the Mengistu regime and thousands of civilians (US Department of State Report on Human Rights Practices for 1993, p86).  Additional arrests of former officials and members of the Mengistu Government continued to take place in 1994 and early 1995 (Ethiopia; Accountability Past and Present; Human Rights in Transition, London April 1995, p47).  Detentions for long periods without charge or trial was a standard practice during interrogation, as was torture.  Thousands had disappeared from detention and extra judicial executions were frequently reported.  These and other matters were the subject of detailed reference in the Tribunal's reasons causing the Tribunal to say:-

"... there is no question but that human rights violations occur."

Later in its reasons after referring in detail to numerous reports, the Tribunal went on to say:-

"These reports suggest that, while there has been a significant improvement in the human rights situation since the brutal Mengistu regime, the improvement is only relative and that wide spread and serious human rights abuses still occur."

The prescribed criteria for the grant of a protection visa are set out in sub-s 36(2) of the Act and Clause 866 of Schedule 2 to the Migration Regulations: see s31(3) and Reg 2.03. Sub-section 36(2) of the Act states that a criterion for the grant of a protection visa is that the applicant for the visa is a
non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  The terms "Refugees Convention" and "Refugees Protocol" are respectively defined in s 5 of the Act as meaning "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967".

A refugee is defined in Art 1A(2) of the Convention as amended by the Protocol as a person who:-

"Owing to a 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..."

In the present case the applicant first claimed a fear of persecution by reason of his race.  He is an Amhara who previously lived in Addis Ababa.  He claims that as an Amhara he is at risk of persecution by the dominant ethnic group, the Tigray.  In considering this submission, the Tribunal referred to and quoted from numerous publications including cables from the Department of Foreign Affairs and Trade.  Those quoted materials contained information that justified the Tribunal's conclusion that:-

"The evidence indicates that the Amhara are now being discriminated against in government employment and in other ways because of the government's pursuit of ethnic policies; however, changes such as in the teaching of Amharic, for example, which was raised at the hearing, do
not constitute persecution.  Nor does the independent evidence, in my view, establish that, as a class of people, Amhara are in general subjected to sustained and systematic harassment.  As stated, it appears more the case that, in general, they have suffered a loss of privilege since the change of government and degree of discrimination which they deeply resent but which may or may not, depending on the circumstances of the particular case, amount to persecution. ...

It is also clear that the applicant and perhaps most Amharas are opposed to the government's policy of progressive devolution of powers to the ethnic groups.  It would be surprising if such a radical policy was not seen as a diminution of nationhood and did not attract strong criticism from several quarters.  As Human Rights Watch World Report 1996 states:  "While some observers viewed these constitutional developments as offering a new model of ethnic accommodation, others accused the government of exposing the country to risks of fragmentation and political turmoil if the liberal constitutional provisions encouraged minorities to seek secession".  However, even if such policies disadvantaged Amharas I do not consider them as persecutory.  Having regard to all the evidence, I conclude that there is not a real chance of the applicant's being persecuted by reason of being an Amhara."

This conclusion was a conclusion that was available to the Tribunal on the material that was before it. It is not for this Court to make its own assessment of the merits of the applicant's case. Rather, the role of this Court is to examine whether one or other of the limited grounds of review as contained in s 476 of the Act exist. The summary by the Tribunal of the material that was before it and its conclusion based on that summary does not, in my opinion, contain any reviewable error. The applicant has not therefore, made out his complaint that the Tribunal's decision was "an improper exercise of the power conferred by the Act"; see par 476(1)(d).
The applicant next submitted that he had a fear of being persecuted for reasons of political opinion.  He relied on his membership of the AAPO and his participation in the presentation of a petition against the merger of the two airlines.  In assessing the applicant's claims, the Tribunal relied on material which was placed before it from a variety of sources including the Australian Migration Office in Nairobi.  That office stated that whilst the AAPO was occasionally banned from organising public meetings, "its publications, often critical of the new government, are openly on sale in Addis Ababa ..."  The Tribunal also referred to a cable from the Department of Foreign Affairs and Trade dated 30 August 1995 which reported:-

"The Ethiopian Human Rights Council (which must be stressed is perceived to be an Amhara organisation firmly opposed to the government on political grounds.  The President of the EHRC does not hide his sympathies for AAPO) maintains that active members of AAPO living in Region Three (the Amhara region) do face harassment and mistreatment from the government.  The ERHC does concede, however, [that non-active members living in Addis Ababa do not face any problems].  AAPO is a registered political party with an office in Addis Ababa ..."

The Tribunal noted that the applicant, on his own account, was an ordinary AAPO member and not a political activist in a significant sense.  This caused the Tribunal to come to the conclusion that it had difficulty "in believing that the Ethiopian authorities would have thought it worth following him; if they did, I can only assume that they were aware of his activities and, given that they were peaceful and legal, they took no action."

The Tribunal accepted that the applicant had been arrested and that he had been mistreated in the way that he had described. However, the Tribunal concluded that the applicant "was seen only as a minor demonstrator and that once he had been detained for a number of days he was of no further interest to the authorities".

The Tribunal concluded by accepting that there was "some discrimination against Amharas, though the available evidence does not support a finding that, as a class of people, they are in general subjected to sustained and systematic harassment.  I also accept that some members of AAPO have been harassed and arrested; however, this did not happen to the applicant and I am satisfied on the evidence that there is only a remote chance of it happening to him if he returns...  I find that the objective circumstances are such that there is not a real chance as defined by the High Court in Chan that the applicant would suffer persecution if he is returned to Ethiopia."  (Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379).

In his application to this Court for a review of the Tribunal's decision, the applicant has alleged that the decision involved an error of law and that there was no evidence or other material to justify the making of the decision. The applicant therefore submitted that the Tribunal's decision was judicially reviewable pursuant to s 476(1)(e) and (g) of the Act. In my opinion, the applicant has failed to point to any of the Tribunal's reasons that could amount to an error of law. The structure of the applicant's grounds in support of his application for an order of review reveals the same approach that was adopted in Magyari v The Minister for Immigration and Multicultural Affairs and to which I referred in detail in my judgment published this day.  The draftsperson of the application has taken each adverse comment, observation, finding or conclusion of the Tribunal, called it a "decision" and then claimed that "there was no evidence to justify the making of this decision".  Thirty such complaints were made (although nine of them were withdrawn, either during the course of submissions or after judgment had been reserved).  Three of them are set out below.  It is not necessary to quote all remaining grounds as they form part of a pattern:-

"1.2The Tribunal having found and accepted that there is no question that human rights violations occur and have occurred in Ethiopia, erred in finding that the Applicant's human rights were not violated and that he was not persecuted (see pp.13-16 of the decision).  There was no evidence to justify the making of this decision.

1.3The Tribunal erred in finding that whilst the evidence indicates that the Amharans are now being discriminated against in government employment and in other ways because of the government's pursuit of ethnic policies, however changes such as in the teaching of Amharic do not constitute persecution (see p.17 of the decision)[sic].  There was no evidence to justify the making of this decision.

1.4The Tribunal erred in finding that the independent evidence does not establish that as a class of people Amharans are in general subjected to sustained and systematic harassment (see p.17 of the decision).  There was no evidence to justify the making of this decision."

These and like subject matters cannot be regarded as errors of law.  No doubt the applicant would disagree with the conclusions of the Tribunal; no doubt he is disappointed with its ultimate determination, but that does not expose its reasoning to review for error of law.

Finally, I turn to the "no-evidence" argument.  For the reason that I have explained in my decision in Magyari, the conclusions of the Tribunal cannot be attacked on the "no evidence ground".  The relevant decision of the Tribunal that the applicant sought to impugn was its decision to affirm the earlier decision of the Minister's delegate, denying the applicant any entitlement to a protection visa.  That decision did not require the prior establishment of any particular matter (c.f. par 476(4)(a) nor was the decision based on a particular fact that did not exist (c.f. par 476(4)(b)).

During the course of its reasons, the Tribunal used the expression "a remote chance" when discussing the risk of persecution.  For example, the following passage appears at p 19 of its reasons:-

"... if he were to return to Ethiopia now there is only a remote chance of his being persecuted because he is an Amhara or because of his activities in the AAPO."

The applicant submitted that the use of the words "a remote chance" constituted legal error.  It was also claimed that there was no evidence or other material that would justify a finding that it was only a remote chance.  The term "well founded fear" was the subject of comment in Chan's case  (supra).  It was observed by the High Court that the term contains both a subjective and an objective element.  Subjectively, it requires a decision maker to determine whether an applicant for refugee status is actually in fear of persecution, and objectively it must determine whether that fear is based in reality.  The Court held that a fear of persecution is well founded if there is a "real chance" that the applicant will be persecuted if he or she is returned to the country of his or her nationality.  The Tribunal was aware of the decision in Chan's case (supra) and concluded its remarks by holding that:-

"... the objective circumstances are such that there is not a real chance as defined by the High Court in Chan that the applicant would suffer persecution if he is returned to Ethiopia."

In those circumstances the use of the expression "a remote chance" is to be read in conformity with the use of the term "a real chance".  It does not reveal error.

Finally the applicant complained that the tribunal "erred in not giving regard to the merits of the applicant's particular and specific case, and specifically did not give regard to the Amharan Christians and members of AAPO and employees of Ethiopian Airlines such as the Applicant ...".  As to this complaint, there is little that can be said save to say that it is inaccurate.  A review of the material in the Tribunal's Reasons for Decision contradict this complaint.  There was ample reference to the claimed merits of the applicant's case and there was specific reference to the subject of Amharan Christians, members of AAPO and employees of Ethiopian Airlines.

In my opinion there is no substance in this application.  It must be dismissed with costs.

I certify that this and the preceding       pages are a true copy of the Reasons for Judgment of Honourable Justice O'Loughlin

Associate:

Dated:

Counsel for the Applicant            :    Mr M W Clisby
Solicitor for the Applicant          :    Paul Kirk Roberts
  & Co

Counsel for the Respondent           :    Ms S J Maharaj
Solicitor for the Respondent         :    Australian
  Government
  Solicitor

Date of Hearing  :    18 February 1997