Martizi v Minister for Immigration and Multicultural Affairs

[2001] FCA 1112

FEDERAL COURT OF AUSTRALIA

Martizi v Minister for Immigration & Multicultural Affairs [2001] FCA 1112

MIGRATION – protection visa – application for review of a decision of the Refugee Review Tribunal – where the applicant claims that the decision-maker based the decision on the existence of a particular fact and that fact did not exist – where the RRT did not make the particular finding claimed by the applicant – linguistic analyses

Migration Act 1958 (Cth) s 476(1)(g) and (4)(b)

PETER MARTIZI v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 116 OF 2001

TAMBERLIN J
PERTH
10 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W116 OF 2001

BETWEEN:	PETER MARTIZI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	10 AUGUST 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

The application for review is dismissed with 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	W116 OF 2001

BETWEEN:	PETER MARTIZI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	10 AUGUST 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. In this matter, Mr Martizi, who claims to be a citizen of Rwanda, arrived in Australia on 13 May 2000. He claimed an entitlement to a protection visa on the ground that he is a refugee within the definition contained in the Refugees Convention as amended by the Protocol, on the ground of fear of persecution on the basis of his ethnicity as a Rwandan Hutu. The principal matter agitated for the applicant in relation to the decision of the Refugee Review Tribunal (“the RRT”) was that there had been no evidence or other material to justify the making of the decision. Reference was made to s 476(1)(g) of the Migration Act 1958 (Cth) (“the Act”), and in particular, to subsection (4)(b) of that section, which provides that the ground specified in subsection (1)(g) is not to be taken to have been made out unless “the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist”.

2. In the present case, the fact which is said not to exist in the Amended Grounds of Application for an Order of Review is that analyses of the applicant’s language revealed that he had not lived in Rwanda from his birth on 6 April 1984 until 1990.  Reference has been made to the linguistic analyses which were carried out by “Eqvator”, a Swedish linguistic analyst agency, which provides evidence as to linguistic characteristics.  In this case, tapes were given to that agency and their views were sought.  In the decision of the RRT, at 18, the decision‑maker stated that:

   “While I note that Mr Martizi claims he was separated from his Kinyarwanda-speaking parents when he was 6, and his Kinyarwanda-speaking grandmother when he was 11, and was then not with people of this background, I note that he is only 16 now, and would consider it surprising, if his family had been Kinyarwanda- and Swahili-speakers and/or he had spent his childhood in Rwanda, that enough time had passed for him to have lost all trace of Kinyarwanda in his Swahili. 

   It may be that Mr Martizi was misinformed as a child about his country of nationality being Rwanda, or that he was too young or too traumatised by events to know where he was living as a child, or for some reason cannot recollect that clearly, or his lack of education has left him unable to be sure inside which country’s border he was actually living.  On the other hand the Eqvator linguists’ evidence suggests that it is likely that he is, in fact, from Kenya, and grew up there.  It is thus possible that he was not born in Goma, has had no connection with Rwanda at all, and has always lived in Kenya.” (Emphasis added)

3. It is in relation to these last three lines that issue is taken.  It is suggested that the evidence of the Eqvator institute could not justify on any basis findings that the applicant has had no connection with Rwanda at all and has always lived in Kenya.  The applicant claims that he has lived in Rwanda until about the age of six, when he fled as a result of persecutions occurring in 1990.  The claims of the applicant, summarised briefly in a letter to the Department of Immigration and Multicultural Affairs, appearing at page 53 of the affidavit of Peter John Corbould on 14 June 2001, read as follows:

   “I left Rwanda because of the war between the Tutsis and Hutus.  In 1990 the Tutsis came to our village and burned our house killing my parents.  My sister and I survived as we were with my grandmother.  When we returned home with my grandmother we saw what happened so we went to Goma because the people in the village were fleeing there.  We were about 6 years old at the time. 

   We lived in Goma for 5 years until my grandmother passed away.  The Tutsis were approaching Goma and we were afraid that if they caught us they would kill us.  Together with some other young people we asked an old person who had a truck and was travelling to Mozambique often to save us and take us there. 

   In Mozambique at the border I got separated from my sister and I have not seen her since.”

   He then sets out what he fears would happen to him if he were to return to Rwanda. 

4. At the outset, it is important to note that the conclusion which was reached by the decision‑maker was that the evidence had been “so contradictory and vague” on the issue of the nationality and origins of the applicant, that the decision‑maker could not be satisfied that he was a national of Rwanda.  He did not claim to be a national of the Democratic Republic of Congo (“the DRC”) or of Kenya.

5. In relation to the suggestion that there was a finding that the applicant had no connection with Rwanda at all, I do not consider that there was any such finding.  It is an expression of a possibility having regard to the unsatisfactory nature of the evidence.  It is evident that, on the evidence, the decision‑maker formed a view that it was likely the applicant was from Kenya and grew up there.  There was thus no definitive finding to the effect that the applicant had never had any connection with Rwanda at all.

6. In considering the reports of Eqvator, it is clear that both the analysts who examined the material are experienced in analysing African languages in the relevant areas for present purposes.  The first analyst, who is from Rwanda, expressed the view that the dialect or language variant spoken by the applicant appeared to be most similar to that of Kenya.  The opinion expressed was that the language spoken on the tape is Swahili, and it was noted that the applicant claims to be from Rwanda.  It was stated that Swahili is spoken in Rwanda, but that the Rwandan Swahili is influenced by Kinyarwanda and French.  People coming from Rwanda have Kinyarwanda as their mother tongue.  According to this analysis, a Rwandan person who has been raised in another country will have a language influenced by the Kinyarwanda accent and the applicant showed no influence of Kinyarwanda in his Swahili.  The applicant’s assertion was that he had lived in Rwanda for his first six years, which of course included the formative years for development of linguistic ability.  The probability, according to this first report, was that the applicant’s language belonged “most likely to Kenya”. 

7. The second linguistic analyst, who is a specialist in the coastal languages and dialects of East Africa, stated that the applicant spoke Swahili fluently, almost as his mother tongue, and expressed the view that he had grown up in a “native coastal Swahili environment”.  The analyst said it is possible that the applicant “has another very closely related Bantu language as his original primary language” but did not elaborate on this point.  It is uncertain precisely what is meant by the reference to “closely related Bantu languages” as Mr Walker, appearing for the applicant, points out.  The report stated that the applicant speaks the Kenyan coastal variety of Swahili and that there are some phrases in his speech which indicate that he has lived for some time in a large city in Kenya.  His accent and vocabulary, according to the report, indicate that he has had little schooling but there are no dialect features in his speech which belong to the type of Swahili language used in Rwanda or Mozambique.  The analyst concluded that the applicant “speaks most certainly the Kenya coast variety of Swahili found in and around Mombasa”.

8. Some vague expressions are used in the reports.  However, having regard to the substance of them, I think that it was open to the decision‑maker to form the view that she was not satisfied that the applicant came from Rwanda.  The state in which the evidence was left, in the opinion of the decision‑maker, was unclear and was not sufficient to enable any inference to be made as to the precise history of the applicant.  The fact could not be established or had not been established that the applicant came from Rwanda.  Accordingly, it followed in the view of the decision‑maker that the claim had not been made out and that, therefore, the application should be dismissed.

9. Although it was not necessary to the decision, the decision‑maker went on to consider the position in relation to the DRC.  However, this has not been argued before me as an independent basis for granting review.  The submissions in relation to the question of persecution are that the decision-maker did not address either the specific claims which were made by the applicant, or the events which were said to have occurred in 1990. In the final part of the decision, at 19-20, there is a reference to relatively recent country information, and other material, including an article appearing in the Christian Science Monitor, to the effect that circumstances had changed and that the country had, at that time, a Hutu president and that three million Hutus had returned to Rwanda and were living among the victims of earlier massacres.

10. I am satisfied that there has been no error shown in relation to the approach taken by the RRT.  The events raised by the applicant occurred in 1990 and the major massacres appear to have occurred, on evidence consulted by the RRT, as late as 1994.  It is in light of that that the position is said to have changed very considerably, according to the country information.  Having regard to the above, I am not satisfied that any reviewable error of law or principle has been shown in the decision of the RRT in this matter.  I therefore dismiss the application with costs.

11. I must say that the Court is greatly indebted to the work which has been put into this application by Mr Walker, who has appeared on a pro bono basis.  His submissions have enabled the Court to give close consideration to the arguments which might be mounted in relation to this matter and the Court is greatly appreciative of this assistance in this case.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             29 August 2001

Counsel for the Applicant:	Mr S A Walker
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 August 2001
Date of Judgment:	10 August 2001