Joam v Minister for Immigration and Multicultural Affairs
[2001] FCA 1125
•15 AUGUST 2001
FEDERAL COURT OF AUSTRALIA
Joam v Minister for Immigration and Multicultural Affairs [2001] FCA 1125ALEX JOHN JOAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 192 of 2001
CARR J
15 AUGUST 2001
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 192 OF 2001
BETWEEN:
ALEX JOHN JOAM
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RespondentJUDGE:
CARR J
DATE OF ORDER:
15 AUGUST 2001
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
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 192 OF 2001
BETWEEN:
ALEX JOHN JOAM
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
CARR J
DATE:
15 AUGUST 2001
PLACE:
PERTH
REASONS FOR JUDGMENT
INTRODUCTION
This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 11 May 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant, who claims to be a citizen of Angola, arrived in Australia on 13 May 2000 as a stowaway on a ship which berthed at Geelong. The applicant claimed to have gained access to the ship in Mombasa, Kenya by climbing up a rope. The applicant had been on the ship as a stowaway for just over a month. On 19 June 2000 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 15 February 2001 a delegate of the respondent refused to grant him a protection visa. On 19 February 2001 the applicant sought review of the delegate’s decision by the Tribunal.
THE APPLICANT’S CLAIMS, THE PROCEDURAL BACKGROUND AND THE TRIBUNAL’S DECISION
The applicant’s claims, in summary, were as follows:
· that he was a national of Angola born in that country on 13 October 1975;
· at the age of 12 he fled from Angola because he wanted to escape the civil war. Government troops were taking many young boys and forcing them to fight in the army;
· there were trucks which took people who wanted to cross the border into Namibia. He waited for everyone to pay their fares and then jumped on one of the trucks on which he hid for two days;
· the truck took him to a point near the border when he walked with other people across the border into Namibia;
· he was in Namibia for one month and then stowed away on a ship, hoping that it was going to Europe. However, the ship went to Mombasa where he disembarked;
· he managed to support himself in Kenya from 1987 until his departure in April 2000 by working, on a rotation basis, at a market in Kongowea (carrying sacks of potatoes) at the port in Mombasa (as a cleaner) and at another market in Mombasa (sewing sacks for vegetables). He moved between the seaport and the markets working and sleeping wherever he could;
· if he were returned to Angola he would be taken and forced to fight in the civil war by the Government of Angola.
The applicant made it clear at his first interview (see Exhibit A1 p 11) that his ability to speak Portuguese (the national language of Angola) was limited. In his application for a protection visa he listed Swahili as his first preference of language, then listed English and then Portuguese (which he said he read and wrote a little). At his interview with the respondent’s delegate (see Exhibit A1 p 67) the applicant stated that he spoke Portuguese when he lived in Angola, but could not remember the language well. The delegate noted that the applicant spoke what appeared to be very broken Portuguese. The rest of the interview was conducted with the assistance of an interpreter fluent in the Swahili language. The delegate provided the interview tape for language analysis in Sweden. The analyst provided a report stating that the speaker on the tape (i.e. the applicant) had, so he or she believed, purposely taken on a drawl which made him sound like a foreigner who acquired Swahili on the streets of Mombasa. The analyst noted the applicant’s large vocabulary and considerable adeptness at the use of Swahili and gave the opinion that the applicant had been familiar with the Swahili language since early childhood. The analyst concluded by saying that the fact that the applicant attempted to hide his adeptness at the use of a conventional Swahili dialect indicated his intention to distance himself from Kenyan nationality thus feigning Angolan nationality. The delegate disbelieved the applicant, did not accept that he had ever been a resident or citizen of Angola, found that he originated from Kenya and was a citizen of that country.
Subsequently, in a handwritten note dated 1-16-2001 (16 January 2001), which accompanied his solicitors’ submissions to the Tribunal, the applicant claimed to speak Portuguese very well. The first hearing before the Tribunal had to be adjourned because the applicant could not understand the Portuguese language interpreter nor converse with the interpreter in Portuguese.
During the period between the delegate’s decision and the hearing before the Tribunal the applicant’s solicitors (in accordance with a requirement of the respondent’s department) obtained from the Kenya police a certificate of good conduct. At the request of the Kenya police the applicant’s solicitors had sent to them a set of the applicant’s finger and palm prints identifying them as such. The Kenya police certificate, dated 7 March 2001, was headed “Certificate of Good Conduct” and omitting formal parts, was in the following terms:
“I hereby certify that the fingerprints attached to this Certificate are those of ALEX JOAM and that they have been searched in the criminal records office and no criminal record has been traced. The validity of the information on this Certificate is as at the date of issue.
This Certificate has been issued without any alteration or erasure.”
The certificate was on a standard printed form.
Another mind brought to bear on this matter could have been concerned that perhaps the Kenya police had simply compared the fingerprints and palm prints forwarded by the applicant’s solicitors, (accepting that they were those of the person named), checked their fingerprint records and had simply certified that there was no criminal record for anyone carrying those fingerprints.
However, the Tribunal observed this in relation to the certificate:
“The certificate is evidence of three things. The Applicant’s fingerprints are on a file somewhere in Kenya, they matched with the ones sent by the adviser, the name “Alex Joam” corresponded with those fingerprints, and Kenyan police had no difficulty finding a file under the name “Alex Joam”. This does not seem to be the situation in respect of someone who has been for 13 years an illegal resident of Kenya.”
The Tribunal noted that the applicant had asserted vehemently that he had no criminal record in Kenya and had acknowledged that probably the only other place where police would likely find a copy of a person’s fingerprints to match against prints provided in correspondence would be in the files of an applicant for a citizen or resident ID registration card. The Tribunal observed that this appeared to be evidence to the effect that the applicant had citizenship or residency in Kenya.
The Tribunal’s findings and reasons were quite short, so I shall set them out below in full. I have added paragraph numbers to facilitate references, which I make below, to parts of those findings and reasons.
“FINDINGS AND REASONS
1. The Tribunal is not satisfied on the evidence before it that the Applicant is an Angolan national. The evidence strongly supports the conclusion that he is a Kenyan national. He has made no Convention-related claims in relation to Kenya. For these reasons his application must fail.
2. Accepting that the Applicant is an Angolan national, the Tribunal would still be satisfied on the evidence of the police certificate that the Applicant’s status in Kenya was beyond question. Thus it would assume he could return there and it would also find that he would enjoy effective protection in Kenya.
3. If the Tribunal accepts that the Applicant is an Angolan national, it must conclude on his evidence and also on independent evidence that his claims are not Convention-related. As discussed, the Applicant’s fears about returning to Angola are all about having no family and having difficulty finding lodging, two facts that must have faced him when he arrived at 12 in Kenya, with no relatives there, no skills and no kiSwahili. He should face the same here, only worse, and yet he is asking to stay in Australia. These claims are not Convention-related.
4. Forced conscription of minors is a serious abuse of human rights, but this problem is not relevant to the Applicant’s case for he is no longer a minor. There is no evidence to indicate that there is a real chance his (sic) being forced to join either the state or rebel army in the event of return to Angola. He himself failed to mention this as the cause of his fear of returning to Angola.
5. The Applicant’s claimed fear of being injured in the crossfire between parties in his country’s civil war is not grounds for protection under the Convention, not least because he failed to argue that injury would be caused by one side because of a perception of his support for the other.
6. Whichever way the Applicant’s evidence is examined, the Tribunal is satisfied that he does not face a real chance of Convention-related persecution whether he resides in Angola or Kenya. He is not a refugee.
CONCLUSION
7. Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Convention. Therefore the Applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa.”
APPLICATION FOR REVIEW AND MY REASONING
It is apparent that the applicant did not have legal assistance in preparing his application to this Court. No grounds of review were stated in it. The applicant was not legally represented at the hearing before me.
In those circumstances I have scrutinised the papers and the Tribunal’s reasons to see whether there was reviewable error.
The Tribunal’s primary finding (see paragraph numbered 1 above) was that it was not satisfied that the appellant was an Angolan. Although not expressly finding that he was a Kenyan national, the statement “the evidence strongly supports the conclusion that he is a Kenyan national” followed by a reference to the fact that the applicant had made no Convention-related claims in relation to Kenya and a statement “for these reasons his application must fail”, amounts, in my view, to a finding that he is a Kenyan national.
Despite the reservations which another mind might have about the Tribunal’s reliance upon the applicant’s limited knowledge of the Portuguese language and the certificate from the Kenyan police, in my view, it was open to the Tribunal on the evidence before it to find that the applicant was a Kenyan national.
The applicant had the misfortune at the primary decision-making level of having his claim to Ovambo ethnicity disbelieved on the basis that the delegate could find no evidence that such an ethnic group existed. Subsequently the applicant’s advisers searched the internet and found no less than three websites which referred to the Ovambo group. These show that the Ovambo ethnic group in Angola number 580,000 or 5% of the population and are nomadic cattle herders who regularly migrate across the Angola-Namibia border. That error on the delegate’s part cannot be seen to have flowed through into the Tribunal’s decision-making process. However, the process might be seen to have been fairer if the Tribunal had expressly paid attention to the Ovambo claims and submissions and obtained further expert linguistic assessment of the applicant’s knowledge of the Ovambo claims. But, in my view, its failure to do so does not disclose reviewable error.
Were it not for the circumstances that the Tribunal disbelieved the applicant’s claims and evidence that he was Angolan and that it was open to the Tribunal to find (as I have found that it was) that the applicant is a Kenyan national who made no claims to any risk of persecution if returned to Kenya, I would have set aside the Tribunal’s decision.
I set out below, briefly, my reasons for what would have been that conclusion were it not for the circumstances which I have just mentioned.
But first I gave consideration to the question whether the Tribunal’s jurisdictional errors, discussed below, may have invalidated its conclusions based on what it found was the applicant’s nationality. I decided that, on a fair reading of the Tribunal’s reasons, that was not so. The Tribunal, in paragraphs numbered 2 to 5 can be seen to be considering, contrary to its findings in paragraph 1, what would be the situation if the applicant was Angolan. The first part of its decision is, in my view, free-standing and does not disclose reviewable error. I turn to what I consider would otherwise have been jurisdictional error on the Tribunal’s part.
I refer first to the paragraph numbered 4 above. In that paragraph the Tribunal stated that the applicant had failed to mention a real chance of his being forced to join either the state or rebel army in the event of return to Angola as the cause of his fear of returning to Angola.
That is simply wrong. The claim was made in the statement accompanying his application for a protection visa (see Exhibit A1 at p 48). It was repeated in the written submissions made on his behalf to the Tribunal (see for example Exhibit A1 at p 104) where, after referring to extensive independent evidence, his solicitors said this:
“We submit that the above reports indicate that it is unsafe for the applicant to return to Angola. We further submit that if returned to Angola, the applicant would face forced conscription or brutality at the hands of the authorities.”
The Tribunal, in paragraph numbered 4 above stated that there was no evidence to indicate that there was a real chance of the applicant being forced to join either the state or the rebel army. This again ignores the independent evidence of forced conscription referred to and set out in the written submissions to the Tribunal.
In paragraph numbered 2 above the Tribunal (on the hypothesis that it was wrong in rejecting the applicant’s claim to be Angolan), based its decision that the applicant could return to Kenya and would enjoy effective protection there solely on the police certificate. In my view, the police certificate is not evidence of any such thing. There was no other evidence on whether the applicant had any right (whether legal or otherwise) to return to Kenya and have effective protection in that country.
In my view, the Tribunal did make errors which, but for the circumstances referred to in paragraphs 13 and 15 of my reasons above, would have been of the type referred to by the High Court of Australia in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, in particular at [82]. There was also the reviewable error of law on the effective protection point.
The jurisdictional error would have been to misunderstand completely the claims made by the applicant in relation to Angola, leading the Tribunal to ask itself the wrong question and to ignore relevant material in a way that affected the exercise of the power. In those circumstances, in my view, it would be considered by right-minded persons to be unconscionable and unthinkable if the respondent encounters difficulty in returning the applicant to Kenya, to consider causing him to be removed to Angola. Given the errors in the decision-making process referred to above, it would not, in my view, be appropriate to rely on the Tribunal’s reasoning in relation to the applicant’s Angolan claims. However, as a matter of fairness, I should add that there is at this stage no suggestion that the respondent proposes to do so. I sound the caution only if there are problems in returning the applicant to Kenya.
CONCLUSION
For the foregoing reasons, the application must be dismissed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr. A/g Associate:
Dated: 15 August 2001
The Applicant appeared by videolink: Counsel for the Respondent: Mr A A Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 15 August 2001 Date of Judgment: 15 August 2001
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