Kone v Minister for Immigration and Multicultural Affairs

[2001] FCA 1276

FEDERAL COURT OF AUSTRALIA
Kone v Minister for Immigration & Multicultural Affairs [2001] FCA 1276

Migration Act 1958 (Cth)

CHEIKH VABOU KONE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 220 of 2001

FRENCH J
4 SEPTEMBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 220 of 2001

BETWEEN:	CHEIKH VABOU KONE Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	FRENCH J
DATE OF ORDER:	4 SEPTEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.      The application will be dismissed. 

2.      The applicant is ordered to pay the Minister's costs of the application. 

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 220 of 2001

BETWEEN:	CHEIKH VABOU KONE Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	FRENCH J
DATE:	4 SEPTEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. Cheikh Vabou Kone, is a citizen of the Ivory Coast.  He came to Australia as a stowaway on a ship from South Africa on 18 January 2001.  On 19 January he lodged an application for a protection visa.  On 6 March a delegate of the minister refused to grant him a protection visa.  On 13 March he applied to the Refugee Review Tribunal for review of that decision.  A hearing took place before the Tribunal on 1 May.  He gave oral evidence at that hearing but on 22 May the Tribunal refused his application and affirmed the delegate's decision.  On 7 June he lodged an application in the Federal Court seeking review of the Tribunal decision. 

2. His claims made in support of his application for a protection visa in summary were as follows: 

   (1) He said he feared persecution if he returned to the Ivory Coast because he was a Muslim and a member of the Dioula ethnic group.  He also feared persecution, he said, because of his membership of a political party known as Rassemblement Des Republicains, ("RDR"). 

   (2)In 1995, he said he joined the RDR and attended its meetings. He started working as a journalist for Le Patriote which later changed its named to Le Republicain.  He said this was a newspaper published by the RDR. 

   (3)In 1997, he said he was arrested because of an article he wrote defending the leader of the RDR.  That was a man called Alassane Ouattara.  He spent three months in prison. 

   (4)In December 1999, General Guehi came to power following a coup d'etat. 

   (5)Presidential elections were carried out in October 2000 and RDR candidates were not permitted to run.  He said that during the two months leading up to the elections he was in fear for his life because of the ethnic and religious tensions in the country.  During this time Ouattara was arrested, as were many of Mr Kone's friends and acquaintances. 

   (6)On 25 October 2000, General Guehi declared himself the winner of the elections.  Military personnel were everywhere, including at the office of the newspaper.  Thirty nine people died in civil unrest that followed.  According to Mr Kone, he knew that the election result was false and that the real winner was a person called Gbagbo.

   (7)He received a telephone call from the editor of his newspaper asking that he write an article about the true election results which would be published in the paper on the following day.  He wrote an article and gave it to his editor‑in‑chief in secret. 

   (8)He called his mother by telephone on the same day, but she told him to hang up.  She said the military were already at his home.  He was sure his mother had been beaten.  He then called his brother‑in‑law, Kone Yaya, who was the accountant at the newspaper.  His brother‑in‑law said he could not speak with him.  He then called his father who was director of the teaching department in Vavoua.  His father told him that as he was wanted he should go to the Abidjan port, to quay 17, where there would be people who could help him leave the country.

   (9)Mr Kone said he believed that someone who worked for the newspaper had leaked to the military information about the article that was to be published.  He went to quay 17 in accordance with his father's instructions.  He found someone there of his own ethnic group who told him to sleep there as he could not depart that night.

   (10)At 3 am he was hidden in a military jeep and told he would be taken to Benin where he boarded a boat and went to South Africa.  He spent about six weeks in South Africa.  He said he did not think about applying for refugee status in South Africa because he did not feel safe there.

   (11)He tried to board a number of boats to leave South Africa but was forced to disembark because he could not pay for the journey.  After six weeks he realised he would have more luck with a ship carrying containers.  He got on a ship by pretending to be an employee.  The ship stopped at Fremantle and there he asked for asylum.

3. In its reasons for decision the Tribunal accepted that Mr Kone is a Muslim of Dioula ethnicity and a supporter of the RDR party.  It also accepted that he is a citizen of Ivory Coast.  The Tribunal found that it was plausible that Mr Kone could have been detained in 1997 because there was a number of demonstrations in Ivory Coast at that time.  It was not satisfied, however, that he was detained because he was a journalist.  Nor was it satisfied that he was working as a full‑time political journalist during 2000.  Neither Le Patriote nor Le Republicain is the official newspaper of the RDR.  The Tribunal noted that independent evidence indicated a paper called Le Liberal was the newspaper of the RDR.  It could not find any mention of a newspaper called Le Republicain. 

4. The Tribunal found it implausible that a person claiming to be a political journalist since 1998 would not know that his newspaper was not the official organ of the party to which he belonged, nor would he get his facts wrong about the closure of his newspaper and its subsequent re-emergence as another paper with another name.

5. The Tribunal did not accept that Mr Kone was arrested in relation to articles he had written in 1997, nor did it accept that he came to the attention of the authorities because of his work as a journalist.  It did not accept that his departure from Ivory Coast was caused by his fear of adverse treatment in relation to an article he had given his editor about the October 2000 presidential elections.  There were political tensions involving the RDR in connection with the presidential elections.  There were a number of violent clashes involving largely members of the RDR and security forces.

6. Although Mr Kone was given opportunity to do so, he made no claims that he participated in such demonstrations or that he was hurt or detained as a result of them.  He only made general claims that the authorities were looking for him for a couple of months before the election because they wanted to destroy the RDR and its membership.

7. The Tribunal was not satisfied with his account of his departure from the Ivory Coast and although it gave him notice about this at the hearing he gave it no further explanation.  It was not satisfied with his story of how he left the Ivory Coast.  It did not find his testimony believable.  It noted that he was not sure of the dates and had mistaken the date on which General Guehi declared himself winner of the election.

8. The Tribunal did accept that he might face some discrimination by reason of his religion.  Independent evidence suggested that a number of Muslims feel excluded from the country's power structure.  Mr Kone did mention at the end of the hearing that he was a member of a Muslim youth group.  The Tribunal found that he said nothing about disruption of meetings or other harassment that he had ever suffered on account of his religion. 

9. The Tribunal was not satisfied that the discrimination which he claimed amounted to persecution.  It noted that Mr Kone himself had the benefit of a good education to the age of 20 in a country where only 55 per cent of children attended primary school in 1996-97.  It found that he has had the opportunity to travel, including ten months in South Africa and a trip to Italy.  He also claimed to be constantly in employment.

10. The Tribunal found no reason to suppose that he would be at any particular risk of harm if he were to return to the Ivory Coast, even as a member of the RDR, as a Dioula, or as a Muslim.  Since the election, Gbagbo has attempted to reconcile some of the opposing groups in the country.  The Tribunal was satisfied that Mr Kone had not suffered any harm, let alone harm amounting to persecution for any of the reasons under the Refugee Convention.  The chance of such harm in the future was remote.  For these reasons the Tribunal was not satisfied that Mr Kone had a well-founded fear of persecution for a Convention reason.

11. In his application for a review to this Court, which he prepared himself, Mr Kone wrote out his own grounds of review.  He said in that application:

    "I believe that my claims are real that if I was given a chance of hearing and providing some more informations and explanations I could prove.  Sometimes the way of expressing upon the claims is a real problem.  My country informations show that as a journalist, muslim and member of RDR which is my parti and the fact that I am of the Dioula ethnical group I will be in very tight corner on return in my country.  My Ethnical group, My parti and my religion are for the other citizen for my country therefore we don't have chance of peace. (sic)
    The governors are mostly Chritians, from another parti and another ethnic group. (sic)
    My fear is well founded but maybe explanation was my problem. (sic)

12. At the hearing before me Mr Kone had not prepared any statement to read to the Court although he had been directed to do so by the District Registrar earlier.  He explained his position by saying that the Tribunal had perhaps misunderstood his evidence.  There were some things he had not told the Tribunal and perhaps should have told the Tribunal.  In particular he said he was president of a religious youth group which had been involved in the burning of Christian churches as a response to the burning of mosques. 

13. As I pointed out to Mr Kone the function of this Court is quite limited.  Provided there was evidence upon which the Tribunal could reach the conclusions that it did, this Court cannot interfere with those conclusions.  Mr Kone has had ample opportunity to make his position clear, both in statements to the delegate and to the Tribunal. 

14. He is a person who is better educated than many who make applications for refugee status and while he is not a lawyer and no doubt suffers the disadvantage of all non‑lawyers in dealing with the Migration Act 1958 (Cth), there is nothing to suggest that he did not understand the nature of the process in which he was involved.

15. In substance, his application seeks to have this Court substitute for the Tribunal's decision a different view of the facts.  This Court does not have the power to do that which he

    asks and on the evidence before the Tribunal there is nothing to suggest that its decision on the facts was wrong, in any event. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:             September 2001

The Applicant appeared on his own behalf.
Counsel for the Respondent:	Mr A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 September 2001
Date of Judgment:	4 September 2001