Kuyoba-Banona v Minister for Immigration and Multicultural Affairs

[2000] FCA 641

FEDERAL COURT OF AUSTRALIA

Kuyoba-Banona v Minister for Immigration & Multicultural Affairs
[2000] FCA 641

PATRICK KUYOBA-BANONA v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1475 of 1999

HILL J
19 MAY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1475 OF 1999

BETWEEN:	PATRICK KUYOBA-BANONA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	19 MAY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’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
NEW SOUTH WALES DISTRICT REGISTRY	N 1475 OF 1999

BETWEEN:	PATRICK KUYOBA-BANONA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	19 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Mr Patrick Kuyoba-Banona, applies to the Court for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of the respondent Minister for Immigration and Multicultural Affairs not to grant to him a protection visa.

2. The applicant, presently in detention, is unrepresented.  His native languages are Lingala and Kikongo, the languages of the Congo ethnic group to which he belongs.  He also speaks French, but with some difficulty he says.  He speaks very little English.  Before me he had the assistance of an interpreter in the French language.

3. Not surprisingly, given these circumstances the application which he filed with the Court did no more than indicate his dissatisfaction with the Tribunal’s decision. It gave no indication of the grounds of review upon which he relied. Having regard to the provisions of s 476 of the Migration Act 1958 (“the Act”) these are very limited. One may wonder how a person who speaks no English and is unrepresented could be expected to understand what s 476 means let alone to set out details of the limited legal grounds upon which judicial review is sought. These emerged only at the hearing when he presented his own case with the assistance of the interpreter.

4. The applicant is a citizen of the Democratic Republic of Congo, formerly known as Zaire.  His application for a protection visa, which was made on his arrival in Australia, was refused by a delegate of the respondent Minister and in consequence the applicant applied to the Tribunal for review of that decision.

5. The issue before the Tribunal was whether the Tribunal was satisfied that the applicant was a person to whom Australia had protection obligations under the 1951 United Nations Convention Relating to the Status of Refugees as affected by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).  Article 1A(2) of the Convention defines a refugee, Australia having protection obligations to refugees as a party to the Convention, as any 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; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.”

6. It was the applicant’s case before the Tribunal that he feared persecution because of his political opinion or political opinion imputed to him.  He claimed to have been identified with the former government in power before the country was taken over by its present leader, Mr Kabila.  His basic claim as initially presented in writing stated that he was a member of the political party MPR which he had joined in 1996 as a professional footballer.  The claim noted that on joining he had been given both a membership card and what he referred to as a “Laisser Passer” a small laminated card with photo ID which he submitted to the Tribunal and which he said enabled him to travel freely from one place to another.  The written statement continued as follows:

   “In mid 1996, we were informed by Mungulu Giara, (the governor and MPR member) that whenever there was a political demonstration by the UDPS party; we should show up at the demonstration.  He said in that way when the UDPS members see us, their attention will be distracted because I was one of the football stars.  There was a political demonstration organised by the UDPS.  When I heard about the demonstration, I went there with two other men.  One of the men was from a different football club (Imana) and the other one was from my club (Vita club).  When the JDPS demonstrators saw us, they stopped demonstrating and followed us.

   At the beginning of 1997, the president of my football club informed me that members of the UDPS had realised that I was a member of the MPR and that the MPR is just using me as a football star to promote their political motives and to use me to change the political beliefs of UDPS members.  Two months later, just before the Kabilla government came to power, the president of my club told me to be very careful of the UPDS [sic] members.  I was very scared and as a result, I could not go out.  I remained indoors for 6 to 7 days.  At the end of the 7 days, I started to go out.  Shortly after that the Kabilla government came to power and I became very scared because all the people of the MPR ran away.

   Around September 1997, the president of my football club informed me that the members of the Kabila government killed my father on or about February 1997.  He told me that my father was killed because of my involvement with the MPR political party.  I ran away to the region of Baz-Zaire, I told my mother all what had happened.  She cried and advised me not to associate myself with the MPR political party or any other political party.  I followed my mother’s advice.  I stayed with my mother for six months.

   Six months later, a colonel from the Kabilla government came to my mother’s house and asked me to go with him to Kinsasa [sic] to play soccer.  The colonel was a former member of the MPR party.  I went with him to Kinsasa because I trusted him.  When we arrived in Kinsasa, I stayed with him for 3-4 months.  During this period, I stayed in his house with my wife and child.  During our stay with the colonel, he told us to be very quiet because of the change of government and because I was a member of the MPR party.  At the end of the four months I started to play soccer with my club (Vita).  I played soccer until August 1999.  Throughout 1998 I was harassed by members of the Imana football club.

   On the 20^th of July 1999 I went to the colonel’s place to collect my pay.  On the same day, the colonel informed me that he had received a call from the MPR members who ran away and that members of the MPR had gone to the north of Congo.  He also told me that members of the MPR needed me.  The colonel told me to be very careful because the authorities in Kabilla’s government perceived me as an informant for the MPR party and that I am the one who is relating all the information to the MPR regarding the political situations within the Kabilla government.  I became very scared.  The colonel became very scared too because of his relationship [with] me.  I stayed with the colonel for until I left Congo.  I was hiding in his house.  Later I was informed by the colonel that my house [was] raided when I went to his place.

   On the 16^th of August 1999, the colonel advised me strongly to run away for my life.  He told me that the authorities from the Kabbila [sic] government are looking for me.  At that time I [was] living at the colonel’s place. 

   On the 16 August 1999 the colonel gave me an address of one of his friends in Johannesburg, South Africa.  He also gave me US$2000 American dollars.  On 18 of August 1999 I escaped from Congo.  I left my wife with the colonel because I did not have enough money and because it was very risky to travel with her and the child.

   ...

   I fear that the authorities of the Kabila government will kill me ... [b]ecause I was a member of the MPR and they see me an the enemy of the government ...  The authorities in my country will not protect me because it is the same authorities I am ran away from.”

7. The written claim was amplified by evidence which the applicant gave orally at the Tribunal.  It is not necessary in these reasons to outline in any detail the nature of that evidence.

8. The Tribunal found the applicant not to be a credible witness.  It found that a number of points in his statement and subsequent testimony were untrue when compared with independent evidence and that the story which the applicant had told was often implausible with inexplicable differences emerging at various stages of the testimony.  So the Tribunal accepted only the name of the applicant, that he came from Kinshasa and that he played soccer including that he had played for the Vita club in Kinshasa.

9. Amongst other things it rejected the significance of the “Laisser Passer” and rejected the applicant’s claim that he was a political activist or had political affiliations.  On this point the Tribunal said:

   “Given that the Tribunal rejects the claim that the applicant was perceived to be a political activist – or indeed, to hold any particular political affiliations beyond following orders from his football club – it follows that the Tribunal rejects the claim that the applicant’s father was killed by the authorities in February 1997 because of the applicant’s political activities.  It is implausible that the Mobutu government would kill a man because his son was perceived to be sympathetic to the MPR – the President’s party.  In addition, it is an implausible story that the applicant and his mother departed Kinshasa in February, leaving the father behind, and that they had no contact at all with any news from Kinshasa until September when the colonel told the applicant that his father was dead and forbade him to find out any more about the matter.  The Tribunal suggests that there must be another explanation for the particular sequence of events:  perhaps that the applicant’s father died in February 1997 (for reasons unrelated to politics) and that the applicant then escorted his widowed mother (now alone) to a new location (Kasangulu) and helped her settle there.”

10. The applicant commenced by making two general submissions.  First he said that he had been promised an interpreter in his own native language, Lingala, but one had not been provided.  The promise, if there was one, seems to have been made in connection with the application before me rather than the application made to the Tribunal, although this was far from clear.  If the complaint related to the Court, it should be said that while there is no legal obligation on the Court to do so it will endeavour to provide an interpreter for a litigant who is unrepresented.  This happened in the present case.  One may think that the possibility of finding an interpreter in Lingala is relatively remote.  In the present case the Court did provide an interpreter in the French language, although not in Lingala.  The applicant and the interpreter appeared to have no difficulty in communicating with each other.  In any event the question of interpreting the applicant’s submissions in this Court could not bear upon a review of the proceedings in the Tribunal.

11. More importantly the applicant said that in the proceedings in the Tribunal he understood nothing at all.  I should say that the applicant was provided with an interpreter in the French language in the Tribunal.   I shall deal with this mater later in these reasons.

12. In addition to these general comments the applicant made nine submissions, not all of which could properly be entertained by the Court having regard to the terms of s 476 of the Act. The submissions were as follows:

    1.That the Tribunal had rejected the evidence he had given about how he had left the Congo.  He said that the passport which he had held and air tickets supported this.  These, he said, had been handed by an officer of the Department of Immigration and Multicultural Affairs to the Tribunal.  His complaint was presumably that the Tribunal did not believe him or ignored the documentary evidence.  This is not a ground of review.

    2.The applicant submitted that the Tribunal had rejected the evidence he had given concerning the death of his father notwithstanding that a delegate of the Minister when considering the matter had accepted it.  This submission, like the submission which follows it, misconceives the nature of the proceedings before the Tribunal.

    3.The applicant submitted that the Tribunal had likewise rejected his evidence that he was a member of the MPR notwithstanding that this too had been accepted by the delegate.

    4.The applicant submitted that the Tribunal had placed no significance at all on the card “Laisser Passer”.  He submitted that the Tribunal in saying that every member of the football team had such a card, found he had merely made this up and there was no evidence to support the view that he had made it up.  Again this is a complaint concerning a factual finding.  Fact finding is the province of the Tribunal, not this Court.

    5.The applicant submitted that the Tribunal had found that he could go back to Kinshasa and in so finding had not taken into account the difficulties and dangers of the political situation in the Congo.  He sought to tender a document dated 20 January 2000 dealing with the political situation there which document was not of course available to the Tribunal at the time it heard the proceedings.  Again the submission is no more than a complaint about the Tribunal’s finding of fact.  The Court has no jurisdiction to consider matters of fact.

    6.The applicant submitted that the Tribunal found that he had said that he had fled from Kinshasa with his mother in February 1997 when his evidence in fact was that he had at that time fled to his mother’s home away from Kinshasa.  It was submitted that this was an important mistake on the part of the Tribunal and one upon which the Tribunal had relied in finding his case implausible.

    7.The applicant submitted that the Tribunal had, in its reasons, made mention of the fact that on the applicant’s evidence it appeared that the applicant had commenced playing second division football at the age of four.  Such evidence would, of course, be highly implausible.  The evidence emerged as a result of a form being wrongly filled out shortly after the applicant’s arrival in the country.  It is obvious enough that there was a mistake in the dates.  However I do not think that the Tribunal took any notice of this or that it affected the Tribunal’s decision.

    8.The applicant submitted that the Tribunal had not taken proper account of the history he had given in evidence.  In particular the applicant complained that it had wrongly rejected evidence that he played in a national football team, that he was a member of the MPR, that he passed through Angola, and that his father had died in the circumstances he indicated.  He complained also that the Tribunal had rejected the significance of the colonel whose name appeared in the evidence.  Again the applicant’s complaint goes to the facts which the Tribunal found.  This Court has no power to intervene merely because the Tribunal rejects an applicant’s evidence.

    9.Finally, the applicant submitted that the Tribunal had prejudged the case.

13. As can be seen from the short comments I have made, these submissions are (apart from submission 6) really no more than a complaint that the Tribunal had made findings adverse to the applicant.  The applicant can hardly be criticised for failing to appreciate that this Court has no jurisdiction to make factual findings or alter factual findings made by the Tribunal or findings of credit which the Tribunal may have made.  Parliament has entrusted questions concerning factual matters to the Tribunal for a final decision.  This Court is empowered only to consider a limited number of grounds of review.  Largely the Court is limited to considering whether the Tribunal has made a legal error.

14. Before considering the sixth submission, I would make some additional comments concerning the fourth and seventh submissions.

15. The fourth submission does not in my view avail the applicant.  It is true that there was no evidence that other players had use of a card such as that which the applicant showed the Tribunal.  However, the conclusion reached by the Tribunal was merely an inference which the Tribunal itself made.  It seems to me to be an inference that was open to it.  In any event it hardly seems that this matter played any material part in the Tribunal’s reasons.  Likewise, as regards the seventh submission, it is hard to see that the mistake (and it was clearly a mistake) which suggested that the applicant was aged four at the time he said he was playing grade football was not material and, so far as I can see, did not affect the outcome. 

16. It is the sixth submission, concerning the finding by the Tribunal that the applicant had fled from Kinshasa with his mother, which appeared to be the more significant matter.  There is little doubt that this played a significant role in the Tribunal’s decision.  Indeed the Tribunal refers specifically in its reasons to the implausibility of the story that the applicant and his mother had departed Kinshasa in February 1997 leaving the father behind as a matter which led to the conclusion that the applicant’s evidence was not to be accepted.

17. To enable the applicant to demonstrate that the evidence he gave before the Tribunal differed from the evidence the Tribunal said he gave I adjourned the application to a later date so that the relevant part of the tape recording made of the evidence the applicant gave before the Tribunal could be located and played to the Court.

18. When the matter came before me on the date to which it was adjourned the applicant produced the tape to commence at the relevant place and it was played.  On the tape it is clear that the applicant was asked by the Tribunal whether early February was the time he left Kinshasa with his mother (emphasis added) to go to Baz-Zaire.  The applicant answered “yes”.  The passage continued to the following effect:

    Question:       “And your father stayed?”

    Answer:          “Yes, he was working in Kinshasa.”

19. The evidence taped is in accordance with that recorded by the Tribunal and the submission has accordingly no significance.

20. I turn now to comment shortly on the question of translation in the Tribunal.

21. Section 366C of the Act obliges the Tribunal to provide an interpreter “for the purposes of communication between the Tribunal and the person [i.e. the applicant]” if requested or if such be necessary.

22. I do not know if the applicant actually requested an interpreter or one was provided by the Tribunal at its own initiative.  It matters not.  What is important is that in the present case the Tribunal did provide, as I have already noted, an interpreter in the French language.  If it were the case that the applicant’s French were inadequate to enable him to communicate with the Tribunal then no doubt the applicant would have a real ground for complaint.

23. Notwithstanding that the applicant said he did not understand at all what went on at the Tribunal I have listened to a part at least of the proceedings before the Tribunal and that indicated to me that the applicant had no real difficulty in understanding what the interpreter said to him in French and the interpreter appeared to have no real difficulty in understanding him. In other words, there appears to have been a real communication, as s 366C requires, between the applicant and the Tribunal.

1. My observation of the interaction between the French interpreter and the applicant before me reinforces this.

2. It follows that in my view there was no breach of s 366C by the Tribunal such as would be a failure to observe proceedings enabling the Court to set aside the Tribunal’s decision.

3. I would accordingly confirm the Tribunal’s decision and order the applicant to pay the Minister’s costs of the application.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             19 May 2000

The Applicant appeared in person
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 April 2000, 11 May 2000
Date of Judgment:	19 May 2000