Micombero v Minister for Immigration and Multicultural Affairs

[2000] FCA 1353

FEDERAL COURT OF AUSTRALIA

Micombero v Minister for Immigration & Multicultural Affairs [2000] FCA 1353

Migration Act 1958, s 476

Minister for Immigration & Multicultural Affairs v Epeabaka (1999) 84 FCR 411

RASHID KABURA MICOMBERO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W115 of 2000

R D NICHOLSON J
15 SEPTEMBER 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 115 of 2000

BETWEEN:	RASHID KABURA MICOMBERO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	R D NICHOLSON J
DATE OF ORDER:	15 SEPTEMBER 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of this 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 115 of 2000

BETWEEN:	RASHID KABURA MICOMBERO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	R D NICHOLSON J
DATE:	15 SEPTEMBER 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application for an order for review pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act"). The applicant seeks review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 5 July 2000. The Tribunal affirmed a decision of a delegate of the respondent not to grant a protection visa to the applicant.

2. There are two grounds of review relied upon. The second one is that the decision of the Tribunal involved an error of law in that its findings were not rationally supported by probative evidence and it failed to rationally consider the probative evidence before it. This is a ground frequently appearing in application forms utilised by persons detained in Port Hedland to support their application. It is a ground of review not now open at law because of the provisions of the Act. It is sufficient to refer to the provisions of s 476(2)(b) and (3)(d) and (e) of the Act. Importantly it is the law that if a tribunal finds facts wrongly or as a result of illogical reasoning, that would not establish an error of law in the making of its decision. See Minister for Immigration & Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at 421. Consequently the second ground on which the application relies cannot assist the applicant.

3. The applicant arrived in Australia as a stowaway on the vessel Turandot on 4 September 1999.  He was then interviewed and claimed to be Rashid Iadarus Hussen, a Kenyan national from the Digo tribe.  He claimed that he left Kenya when the Digos began fighting with the Jaloos and the army/government began looking for the Digos.  He also claimed that he was in the political party Kaya Bombo, and the Government was looking for people in that party.

4. On 14 September 1999 the applicant lodged an initial application for a protection visa (class AZ) under the Act. He did so in the name of Rashid Iadarus Hessen. On 1 October 1999 he lodged a further application for a protection visa under the name of Rashid Iadarus Hussen and again claimed to be a Kenyan national.

5. On 26 October 1999, the applicant with the assistance of solicitors, lodged a third application.  In that application he said that his name was Rashad Kabura Micombero.  He claimed to be a Burundi Hutu who had lived in Kenya since the age of 2.  He claimed to be persecuted in Kenya, on the ground of his Burundian nationality.  In essence his claim was that he feared persecution because as a Burundian he did not belong in Kenya to either of the Digo or Luo tribal groups. 

6. In supporting submissions lodged by the solicitors, it was submitted that the applicant had a well-founded fear of persecution in Kenya on the basis of membership of a particular social group, namely that he was a Hutu and a Burundian.  With respect to Burundi, it was submitted he had a well-founded fear of persecution on the basis of his political opinion as a Hutu who were discriminated, harassed and persecuted by the dominant Tutsis.

7. The application was dealt with by the delegate on the basis and the finding that the applicant was a citizen of Burundi.  The delegate further found that the applicant did not face persecution on any ground if he were returned to Burundi.  The delegate noted that neither in the written submission or a later submission from his agent did the applicant's case draw any purported support from his previously mentioned political engagement with the Kaya Bombo political party.  The delegate stated that the applicant has changed his story several times which made it very difficult for the delegate to ascertain with any degree of certainty the applicant's citizenship, his real name, his ethnic group or the countries he lived in.  The delegate's decision to refuse to grant a protection visa to the applicant was made on 8 February 2000.

8. In the Tribunal's reasons, the following findings of fact were made - and I list them: 

   (1)there was not enough evidence for the Tribunal to be satisfied that the applicant is Micombero rather than Hussen or Hessen or someone else entirely, although it believed him to be Rashid Kabura Micombero;

   (2)the applicant was a Kenyan national who fabricated a story of being a Burundi Hutu when he realised he would be sent back to Kenya;

   (3)there was no evidence before the Tribunal that the applicant suffered any discrimination in employment in Kenya or that he faced any problems other than lack of financial support from his stepfather;

   (4)the applicant was left without support in Kenya and left there to try and find a better life;

   (5)the applicant was prepared to make his story up as he went along;

   (6)the applicant does not face a real chance of persecution in Kenya in the foreseeable future for any conventional reason.

9. Not being satisfied the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, the Tribunal affirmed the decision of the delegate although on the different reasoning which I have outlined.

10. It is the Tribunal's reasoning which the applicant seeks to review on the ground firstly stated of error of law in two respects.  Again this is a ground used by unrepresented persons such as the applicant not familiar with the law and desiring to have this Court review a decision of the Tribunal.

11. As an unrepresented person the argument which the applicant brings to the Court today is that the Tribunal should have believed that he was Burundi and not found him to be Kenyan. He claims that he was mixed up on arrival and that when his thinking cleared, he was confident he came from Burundi, and that that was the truth. It has been explained to the applicant by the Court that this Court does not remake the decision of the Tribunal, and that all this Court can do within the ambit of s 476 of the Act is to examine the reasons of the Tribunal for any error of law as relied upon in the grounds.

12. The first leg of the first ground relied on in the application is that the Tribunal was in error of law involving an incorrect interpretation of the applicable law. This relies on a portion of s 476(1)(e) of the Act. I have examined the reasons of the Tribunal under the headings "The Legislation" and "The Refugees Convention" and I do not consider that the Tribunal has in any way incorrectly interpreted the applicable law. Furthermore, there is nothing in the remainder of the Tribunal's reasons which would otherwise suggest that it did not correctly interpret the applicable law.

13. The second aspect of the first ground of review is that the Tribunal was in error of law as the result of an incorrect application of the law to the facts as it found those facts.

14. The findings of the Tribunal involved findings that the applicant did not produce any evidence to support his claims of being a Burundi Hutu persona or being at risk from a clash between the Luos and the Digos, and that he lacked credibility.  Although the Tribunal found some aspects of the applicant's history in Kenya convincing, there was clearly evidence which entitled it to make its findings relating to disbelief and lack of credibility.  The change in the applications previously recounted was before the Tribunal, and it was required to have regard to the different and conflicting claims made by the applicant.  Given its finding that the applicant was prepared to make up his story as he went along and the absence of any evidence to support his claims of persecution in Kenya, it cannot be said that when the Tribunal applied the law relating to the Convention and the legislation, that it did so incorrectly. 

15. The Tribunal also found that the Kenyan Government was prepared to issue the applicant with travel documents to return to Kenya under the name of Hussen, and that was a further fact it was required to take into account and to apply the law in relation to.  The Tribunal, given its findings, did not have before it evidence which would have entitled it to find that the applicant had a well‑founded fear of persecution for a Convention reason, and accordingly it did not misapply the law to the facts as found by it.

16. It follows that the applicant cannot make out either of the grounds of review relied on and that the application must be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson J.

Acting Associate:

Dated:             15 September 2000

Mr R K Micombero appeared via video on his own behalf
Counsel for the Respondent:	Mr P Macliver
Date of Hearing:	15 September 2000
Date of Judgment:	15 September 2000