Habte, Festum v Minister for Immigration & Multicultural Affairs

[1997] FCA 1251

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 458 of 1997

BETWEEN:

  FESTUM HABTE

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND ANOR
RESPONDENT

CORAM:	DAVIES J
DATE:	13 NOVEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This application was brought under s 476 of the Migration Act 1958 (Cth). The Court does not have the function of determining Mr Habte's application for refugee status on its merits. The only function of the Court is to determine whether there was an error of procedure or an error of law in the Refugee Review Tribunal's decision. The Tribunal is the decision-maker of fact and the Court has no power for itself to decide the facts of the case.

Mr Habte arrived in Australia without identity papers.  He said that the police in his home town had taken his identity document and that he had obtained a false passport but he had destroyed it during the trip to Australia.  Mr Habte first claimed that he had been a member of a body called the Omoro Liberation Front.  He later withdrew that claim and claimed refugee status on the basis that he was a member of the Jehovah's Witness religion and had been subject to persecution in  his home town of Aseb, in Eritrea.

The Tribunal however was not satisfied either that Mr Habte had come from Aseb in Eritrea or that he was a Jehovah's Witness.  During the hearing before the Tribunal, Mr Habte did not appear to show any detailed knowledge of the religion of the Jehovah's Witnesses.  The following are examples of the evidence he gave before the Tribunal:

"THE INTERPRETER: I cannot say any more on that because of my - from my religion point of view when I said I cannot say any more.  What I have already submitted is enough.

...

I have said what happened to me.  I said this thing happened to me, this thing, this thing, this thing, and I said bad things about those people who did bad to me which is againt my - the Bible.  The Bible as it says if people do harm to you don't do harm against them so that - that part of it is contradictory."

"MS SMIDT:  I just do not think that it is true that the Jehovah's Witness religion denies you the opportunity to tell the truth.  I think on the contrary that being truthful is part of the ... (indistinct) ... of the religion.

THE INTERPRETER:  You are right, that's right, but I have to take to - to take to God like what human beings done to me, not to human beings.  I have to take to God.

MS SMIDT:  It is certainly not my understanding that that is part of the Jehovah's Witness religion.  So I will just ask you one more time if there is anything else that you want to tell me now that you think is relevant to your application.

THE INTERPRETER:   I cannot give any more answers.  This is beyond my capacity."

The Tribunal spent time asking Mr Habte about relevant prayers.  His answers were vague, one example being:

"We are just - even before I come here I pray I said Jehovah, help me, assist me, keep me, care for me, you know, this morning, I prayed like that, I started by thanking him." 

Mr Habte had obtained a copy of the Bible in the Amharic language while in detention at Villawood.  Because the Bible was obtained in Australia, it was difficult to draw the inference that he had been an active Jehovah's Witness in Eritrea.  Another fact which the Tribunal took in account was that, while in detention, Mr Habte did not contact persons of the Jehovah's Witness faith in Australia.  In the course of the hearing the Tribunal asked:

"Have you had any attempt at all to contact the Jehovah's Witness church here in Australia?"

to which Mr Habte responded:

"I didn't try to contact anybody else, but one time I got a telephone call from a lady called Doreen, who couldn't communicate very well and she, I think, mentioned she will contact him again.  She'll send him a Jehovah's Witness who speaks Amharic and then nothing happens so far".

On the evidence before it, the Tribunal came to the view that Mr Habte was not a Jehovah's Witness.  There was material before the Tribunal on which it could reach that finding.  I cannot conclude that there was any error of law in the Tribunal's approach to that issue.  In those circumstances, I cannot find that the Tribunal erred in law in dismissing Mr Habte's claim.

The Tribunal also rejected Mr Habte's claim that he came from Aseb in Eritrea.   It seems to me to be an unreliable approach to a finding of fact to rely upon general descriptions of a country, as the Tribunal did, when in a country such as Eritrea, which was under Ethiopian control for so long, there could obviously be differences from town to town and from village to village.  Comments made in general publications could be an unreliable guide to what occurs in a specific town.  However, if the Tribunal was wrong on that matter, it was wrong on a question of fact and not on a question of law.

I have looked at all the relevant documents and I have read Mr Habte's submissions. I cannot identify any error of law which would permit the Court to make an order of review.  The application will be dismissed with costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Date:              13 November 1997

Applicant:	The Applicant appeared in person.
Counsel for the Respondent:	A. Markus, solicitor
Solicitor for the Respondent:	Australian Government Solicitor
Date of hearing:	13 November 1997
Date of Judgment:	13 November 1997