Musse, Ahmed Jabir v Minister for Immigration & Multicultural Affairs

[1997] FCA 1530

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 835 of 1997

BETWEEN:	AHMED JABIR MUSSE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		WHITLAM J
DATE OF ORDER:		12 DECEMBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

1. 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
NEW SOUTH WALES DISTRICT REGISTRY	NG 835 of 1997

BETWEEN:	AHMED JABIR MUSSE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	12 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) given on 12 September 1997.  The applicant says that he is (and he was found to be) a Somali national.  The application for review specifies a number of grounds in five paragraphs.  The last three grounds are argumentative.  The first two grounds rely on the grounds specified in
s 476(1)(a) and (e) of the Migration Act 1958 (“the Act”). The review by this Court of a decision under Pt 8 of the Act is, of course, limited. The applicant has conducted his own case and has the misfortune of not being represented by a lawyer. He does not speak English and has been assisted by an interpreter of the Somali language. I have no doubt that the applicant has no real comprehension of the limited nature of review available in this Court under the Act. Counsel for the Minister has lent over backwards to present the respondent's case fairly. Every courtesy has been extended to the applicant to say anything possible in support of his case.

The material before the Court consists simply of the decision of the Tribunal.  It comprises just over 14 pages.  The Tribunal has evidently given the most anxious consideration to the claims made by the applicant.  This cannot have been easy for the Tribunal.  The applicant arrived in Australia on 8 May 1997.  He arrived without any proper travel documents and he lodged an application for a protection visa on 12 May.  The Department, and subsequently the Tribunal, therefore, had to consider of course whether the applicant fell within the well known Convention definition of refugee. A threshold problem that confronted the Tribunal was the question of the applicant's nationality in view of the very confused situation attending upon circumstances in which he arrived in Australia and the travel documents that he carried.  In any event it was concluded that he was a Somali national and indeed the applicant makes no claim now to the contrary. 

The claims made by the applicant in support of his claim to be a refugee have evidently varied significantly at almost every turn when he has had an opportunity to tell his story to officers in authority or to persons with the capacity to make decisions in his favour.  The Tribunal gave the most careful consideration to this problem and set out very carefully in its reasons the various stories told by the applicant.  The discrepancies have been noted in the Tribunal's reasons.  There was an initial account given on 8 May, subsequent stories in the application on 15 May, and then an interview by a Departmental officer on 26 June, culminating in a decision in July to refuse him a protection visa.  The applicant then made a submission to the Tribunal.  It may be remarked that he was assisted at all stages in his application to the Tribunal by migration consultants, both in the initial submission and at a hearing, where again a different account was given.  All of these discrepancies have been noted in the Tribunal's very careful reasons. 

The Tribunal’s reasons included a brief exposition of the ingredients required to meet the definition of refugee under the Convention by citation to recent authority in this Court and the High Court. Despite the present application being framed in terms of s 476(1)(a) and (e) of the Act, no submission has been directed to the procedures in the Tribunal at all, and indeed in terms, no submission has been directed to an error of law.  The applicant plainly labours under the misapprehension that he is able today in this hearing to make statements in support of his claim to be a refugee which will involve the finding of facts by this Court that can accord him that status.  That, of course, is not the case.  The applicant essentially challenges the findings of fact made by the Tribunal.  As counsel for the Minister has correctly pointed out, challenges to fact finding are not available under paragraph (e).  Further, the Tribunal in the particular situation of this applicant was confronted with various accounts which differed dramatically and significantly from time to time.  The Tribunal had to make its findings of fact based on credit.  It was in a position to do so and did so. 

Importantly for present purposes, the Tribunal referred to the most favourable view it was able to take of the applicant’s circumstances before he left Somalia and to whether those circumstances, constituting some disadvantage to him or his family or relatives, could be characterised as persecution.  Significantly, the Tribunal concluded that none of those events befell him for a Convention reason and accordingly there was no basis for a well founded fear of persecution were he to return to Somalia.

In his address this morning, the applicant has been at pains to point out the situation that exists in Somalia and the real peril he feels he will be in if he is to return to that country.  But as the High Court emphasised in Applicant A (1997) 71 ALJR 381, in order to fall within the definition of refugee under the Convention, a person must have a well-founded fear of persecution for a Convention reason. That is the obstacle that the Tribunal saw on the part of the applicant in his being recognised as a refugee. The Tribunal, of course, was not unmindful of the strength of what the applicant had to say. The Tribunal specifically acknowledged that Somalia is a country with a low level of government services and a high level of incidental violence, but properly acknowledged that it had no jurisdiction to make determinations on any humanitarian aspects of the applicant's claims, other than those which give rise to a claim to refugee status in terms of the Convention definition. Again I say that the Tribunal appears to have given the most careful consideration to everything that the applicant said on the several occasions that he was given an opportunity to tell his story.

Indeed, the story which the Tribunal ultimately accepted is the one that the applicant urges before the Court today.  However, fortified by the assistance offered by counsel for the respondent.  I am satisfied that the Tribunal’s decision reveals no error of law.  The application is dismissed with costs.

I certify that the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Dated:            12 December 1997

The applicant appeared in person.

J G Renwick of counsel, instructed by the Australian Government Solicitor,
appeared for the respondent.