Mzkaa v Minister for Immigration - [2004] FMCA 136

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZKAA v MINISTER FOR IMMIGRATION

[2004] FMCA 136

MIGRATION – Application for a protection visa – review of a decision of the Refugee Review Tribunal – whether the material and evidence before the Tribunal raised a case of political persecution – whether applicant afforded natural justice – no reviewable error disclosed – application dismissed.

Migration Act 1958 (Cth)
Migration Regulations 1994

Re Refugee Tribunal and Another; ex parte Aala (2000) 176 ALR 279
Kioa v West (1985) 159 CLR 550
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajahsingham [2000] 74 ALJR 405
R v Hickman; Ex prate Fox and Clinton (1945) 70 CLR 498

Applicant:

MZKAA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 1116 of 2002

Delivered on:

12 March 2004

Delivered at:

Melbourne

Hearing date:

12 September 2003

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicant:

Mr Nicholas

Counsel for the Respondent:

Ms Riley

Solicitors for the Respondent:

Clayton Utz

ORDER

The application is dismissed
The applicant pay the costs of the respondent as agreed and failing agreement application is to be made to the Court by telephone mention for a date as to the hearing and determination of the quantum of costs to be awarded.
It is certified that pursuant to Rule 21.15 of the Federal Magistrates Court Rules2001 this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1116 of 2002

MZKAA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This application together with applications against the Minister by applicants MZJAV and MZJAZ and MZJAX were all heard concurrently. This approach was agreed to by the parties.
The applicant was born on 12 November 1977 in the Democratic Republic of the Congo. On 19 July 2001 after departure from the Democratic Republic of Congo on a passport issued in his own name he entered Australia on a subclass 420 temporary resident visa obtained in Malaysia. On 23 August 2001 he lodged an application for a protection (class XA) visa. His claim was in essence that he faced a real chance of persecution in the Democratic Republic of the Congo for reason of his real or imputed political opinion. On 18 December 2001 a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 24 December 2001 an application was made to the Refugee Review Tribunal (“RRT”) for review of that decision. The Tribunal affirmed the delegate’s decision on

10 September 2002. The decision was handed down on 4 October 2002.
The applicant filed an application in this Court on 1 November 2002. An amended application and contentions were filed on behalf of the applicant by pro bono counsel on 19 May 2003 and 2 June 2003. Paragraphs 1.1 to 1.3 set out the grounds of the application wherein it is said by the applicant that the decision of the RRT was made without jurisdiction or is affected by jurisdictional error. Included in those grounds was an application that the RRT had breached s 424A of the Migration Act 1958 (Cth) (“the Act”). In addition the decision of the RRT was challenged by the applicant on the basis that the review was conducted and decision made in breach of the rules of natural justice and/or the duty to accord procedural fairness and that the satisfaction of the Tribunal under s 65 of the Act was based on findings or inferences of fact which were not supported by probative material or logical or rational grounds. Pro bono counsel has acted throughout on behalf of the applicant and the Court is grateful to counsel for the work undertaken by him. Likewise, considerable work has been undertaken by the respondent solicitors and counsel. The submissions made by counsel for the respondent I accept and her summation of the matters before the Tribunal have been adopted by me in these reasons as a result of their accuracy, detail and relevance.
Australia has protection obligations toward refugees. The definition is established by Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol as being a person who:
“owing to 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.”
The source of power for granting or refusing a protection visa is section 65 of the Migration Act 1988. Criteria to be satisfied at the time of decisions are prescribed in the Migration Regulations1994, Schedule 2 Point 866. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

Joint statutory declaration

The applicant arrived in Australia with five other men who were all members of a 15 person musical group known as the Congo Boys. The six men made a joint statutory declaration outlining their common histories which was submitted to the Department with their initial application. In it the following claims were made:
a)the six men fled the DRC to escape certain death at the hands of the government now controlled by Desire Kabila, son of the recently assassinated President Laurent Kabila;
b)the six men were members of ORFAZ, a musical unit within the army of the former President Mobutu;
c)when Mobutu’s regime was overthrown by Laurent Kabila, they were turned upon by the civilians; soldiers of Mobutu’s regime were beaten, burnt and killed in large numbers; the six men ran away from Kinshasa to places where the civilians did not know them;
d)Mobutu’s former soldiers were called upon to surrender their weapons and undergo military retraining at Kitona;
e)in early 1999, the applicant was contacted by those connected with the Kabila government who wanted to re-establish a musical group that could perform at government functions;
f)the Kabila government already had a musical unit but it wanted something more civilian looking;
g)the applicant recruited 15 former members of ORFAZ; the band played at a welcoming event on about 20 February 1999 with which the government was very pleased; the band members were then given uniforms;
h)the group were asked by senior staff from the Ministry of Culture to play again soon after and again in late 1999; they would also perform at local government functions and meetings;
i)in March 2000, the group went on tour to Congo Brazzaville for three weeks; they were approached there by some ex-Mobutu soldiers who talked about the terrible events in the DRC and then took the group to a party. At the party they were introduced to some soldiers who had held high rank under Mobutu. They said that they would be approached by someone when they went back to the DRC;
j)back in Kinshasa they were approached by a man who gave them the address of a meeting and US$20. The meeting was in a suburb of Kinshasa;
k)at the meeting on 5 April 2000, there were many people known to the band as ex-soldiers from the Mobutu time; people talked about welfare issues. The group attended a second meeting where they were given US$60 and a third where they were given US$250. At the third meeting the talked turned to being more critical of Kabila’s government;
l)at a meeting on 10 December 2000 they saw a person they recognised as Rashidi the bodyguard of President Kabila;
m)after that meeting the group was told there was a plan to get back into power and eliminate Kabila. The group was told that a mission was planned that involved them. They were told that the 15 members of the group would each be paid US$15,000 then and US$15,000 one week later. They were told to consider the proposal and come back in seven days;
n)the group met and decided to tell the police. Eight members of the group went to the police station on 12 December 2000. They each took $2000 as proof that they had been paid;
o)the commanding officer slapped the applicant and the police yelled at the eight members of the group. They were detained for seven days and tortured. When they were released on 19 December 2001 [sic], the eight lots of US$2000 were not returned to them;
p)the eight members of the group decided to leave the country. None of them stayed in their homes from then on. A Convocation dated 23 December 2000 was sent to their homes requiring them to report on 24 December 2000 to a police station;
q)after seeing the Convocation the eight members of the group went to the provinces. Whilst there they heard that President Kabila had been killed by Rashidi, his bodyguard, on 16 January 2001;
r)the person the group paid to arrange their departure from DRC told them their photographs were now everywhere around the capital;
s)six of the group came to Australia via Kenya where they arrived on 10 March 2001 and Malaysia.

Individual statutory declaration

In addition to the joint statement an individual statutory declaration accompanied the application. The applicant said in summary:
a)his father was a Colonel in the Zairean army. The applicant joined the army in 1994 and joined the musical unit ORFAZ;
b)when Kabila took power in 1997 the applicant and his family ran away to a suburb called Mbudi; one day a big truck came for the family’s property; the Kabila soldiers interrogated the applicant’s father about where the magazines of guns for Mobutu’s army was stored; the father said he did not know;
c)the soldiers raped the applicant’s sister in front of their father, naturally, he reacted and was shot dead “in front of us”; the mother took her own life later that day;
d)during all this, the applicant was hiding in a neighbour’s house;
e)in 1997, Kabila forced former FAZ personnel back into the army, the applicant was sent to Kitona where he was beaten and not fed enough; he saw ex-Mobutu soldiers being killed; in October 1997 he ran away from the army;
f)the applicant went to Mbudi and then Lutendele; in February 1999, MZJAV traced the applicant down and proposed forming a band; the applicant was reluctant at first;
g)while the applicant was imprisoned in Kinshasa in December 2000, he was dressed in women’s clothing and repeatedly raped by the police; this abuse has left the applicant psychologically damaged.
The applicant also supplied a number of documents in support of his application.

The Refugee Review Tribunal hearing

The applicant was invited to attend a hearing before the Refugee Review Tribunal (RRT) on 7 March 2002. That hearing was cancelled upon receipt of advice from the applicant’s adviser on 6 March 2002 to the effect that the applicant was in hospital. The Tribunal was later told that the applicant had attempted suicide. He was apparently discharged from hospital on 7 March 2002 and prescribed anti-depressants. By facsimile dated 13 March 2002, the applicant’s adviser sent the Tribunal some further documents relating to the groups activities in Malaysia and foreshadowed a further statement by MZJAV. Under cover of a letter dated 24 March 2002, the applicant’s adviser supplied to the Tribunal a statutory declaration of MZJAV and a statutory declaration of applicant MZJAX both made on 23 March 2002.
The statutory declaration of MZJAV made on 23 March 2002 asked that it be placed on the files of all six Congo Boys applicants. It then said in summary that:
a)after being released from detention in December 2000, the eight members of the band went to a suburb called Mont Ngafula and stayed in a partly constructed house. They each tried to visit their families in the night; they all found out about the Convocations on 23 December 2000, except MZJAY who had not been visiting his home. MZJAY has not proceeded with his application.
b)MZJAX suggested that they go to Bas Congo (in the provinces) where he had relatives. Someone else then persuaded them to try to go to the South Pacific; they all gave him their passports and some money; he went to Kinshasa and made contact with Kubanza, who arranged everything;
c)news came through on the radio on 17 January that President Kabila had been assassinated. Kubanza came to town and said Kabila had been killed by his bodyguard and the borders had been closed;
d)MZJAV bought two blank DRC letterheads in Nairobi and the letter from the Ministry of Culture (a document produced by the applicant to the delegate and before the RRT) was typed and signed there;
e)the group eventually travelled to Malaysia and then Australia;
f)MZJAV was aware that Mr Lumumba went to Malaysia at the behest of the African Information Network to assist the group with interpreting for the purposes of getting their entertainment visas; MZJAV did not meet Mr Lumumba only MZJAX met him.
The statutory declaration of MZJAX also asked that it be placed on the files of each of the other applicants. The applicant said that he and not the other members of the band had dealt with Mr Lumumba in Malaysia. He also described various events in Kenya and Malaysia.
The applicant’s offshore visa application indicated that the applicant had been invited to perform in Australia by the African Information Network (“AIN”). It indicated that Patrice Lumumba had assisted the applicant to complete the application form in Malaysia. Among other documents the application included a musician’s identity card dated 9 March 2001 which had a photograph of the applicant identical to the photograph attached to his offshore application and identical to the photograph of the applicant on the wanted poster.
On 24 March 2002 the Tribunal received from the applicant’s adviser two further declarations.
A hearing was conducted before the Tribunal constituted by Wendy Boddison on 23 May 2002. The applicant said at the hearing, among other things, that:
a)the applicant’s father was shot because he would not tell soldiers where the guns were hidden (rather than because he reacted when his daughters were raped as stated in the statutory declaration);
b)given that the applicant was at a neighbour’s house when his sisters were allegedly raped, he at first said that he knew his sisters had been raped because he saw them crying, he then said the had seen one of the rapes through a window of the neighbour’s house and a door of his own house and then said the soldiers had raped his sisters outside;
c)his mother attended this father’s funeral and died two to three days later because she had high blood pressure (rather than because she committed suicide on the day the father was killed as stated in the statutory declaration);
d)he was not afraid to respond to the call-up to be retrained in Kabila’s army, (despite what had allegedly happened to his father because of their support for Mobuto) but if had disclosed that he was an ex-Mobutu soldier he would have been shot at the call-up which he said was for everyone, not just ex-Mobutu soldiers (contrary to the country information);
e)he was not sure how long he spent at Kitona, he preferred to sleep in a tent, though some people slept in dormitories (contrary to the country information);
f)he was allowed to leave the camp because he was sick;
g)he walked to a village and was there for two to three weeks but was not sure in which direction from Kitona or how far it was or what its name was. He got a lift to Mbudi but was not sure how long the journey was;
h)he was not sure how often the band played before President Kabila. He said “a little bit-and a lot” and then said many times;
i)after he left the police station in December 2000, he went to Mbudi and found the Convocation. At the time, he was living in Lutendalle. He was asked why he went to Mbudi when he did not live there and when that was the address the police had as it was on his identity card. He said he went to Mdbudi looking for relatives;
j)he met Patrice Lumumba at the EMC in Melbourne for the fist and only time although he then agreed that Mr Lumumba had been his interpreter at the primary interview. He said that he did not see Mr Lumumba on the plane (Movements Records database indicated Mr Lumumba travelled on the same plane to Australia as the applicant);
k)he first said that the police took his photograph, which is why the same photograph is on the wanted poster but then said that the police had confiscated an ID card he had got at the market and the police took the photograph from that;
l)in answer to a question about what he feared if he returned to the DRC, he said that they took the money and they have to pay the price. The people who gave him the money would harm him. He did not know if he would be accused of being involved in the assassination of President Kabila and did not know what was happening with the trial of the alleged perpetrators;
m)when it was put to him that his oral account of what had happened to his parents differed from the statutory declaration, he said that he must have misunderstood the question, there were too many questions.
n)country information was difficult to reconcile with the applicant's.
After the hearing, the Tribunal sent the applicant a letter pursuant to s424A of the Act. The letter said in essence that:
a)the discrepancies in the description of his parent’s deaths suggested that the applicant may not be telling the truth;
b)the statutory declaration of MZJAX indicated that the applicant was assisted with his offshore visa application by a Ghanian when the application shows assistance was provided by Mr Lumumba, who is not a Ghanian. This suggested that the applicant had not told the truth about the circumstances of obtaining a visa to come to Australia;
c)the photographs of the applicant on the wanted poster, the musicians identity card and the offshore visa application were identical. The photographs of another applicant on those documents were identical to each other as well. This suggested that the photograph of the applicant on the wanted poster had been in his possession, which cast doubt on the authenticity of the wanted poster;
d)the applicant stated that the band had played before President Kabila many times, while another applicant said they played twice and two others said three time. This suggested that the applicant may not have been telling the truth about playing for Kabila;
e)the applicants description of the Kitona army camp was at odds with the country information attached to the letter.
The Tribunal asked that any further submission be provided by 30 July 2002. The applicant responded with a submission on 31 July 2002 which said that:
(a)The deaths of the applicant’s parents was as described in the statutory declaration, rather than in his oral evidence;
(b)The applicant just signed a blank offshore visa application which was taken away for processing;
(c)The photograph of the applicant on the wanted poster was one of a large collection of identical passport photographs, one of which was on his Congolese identification card which the police took from him;
(d)The applicant’s answers to the question of how often he played before President Kabila are ambiguous rather than inconsistent with the evidence of the other band members. While the applicant said he played many times, in fact, the band would have played a maximum of five times before President Kabila;
(e)The musician’s identity cards were manufactured by Kubanza to facilitate the band’s departure from the DRC.

Reasons of the Refugee Review Tribunal

The Tribunal accepted that the applicant was a national of the DRC and in the army from 1994 to 1997. The Tribunal accepted that he was assigned to ORFAZ during that time and rejoined the band in 1999. The Tribunal accepted that the applicant played in front of President Kabila a few times but was never close to him. The Tribunal noted the inconsistencies between the applicant’s written and oral accounts of the deaths of his parents and the rapes of his sisters. The Tribunal noted that country information indicated that any reprisals against ex-Mobutu soldiers were confined to senior officers accused of corruption. The Tribunal found that the applicant had exaggerated the events at the accession of President Kabila and found that the applicant’s parents did not die in the way the applicant described. The Tribunal did not accept that the applicant’s sisters were raped or that the family was targeted as described.
The Tribunal noted that the applicant’s evidence that he would have been shot at the call-up if he had revealed that he was an ex-Mobutu soldier was contrary to the country information that the call-up was specifically for ex-Mobutu soldiers. The Tribunal considered that the applicant’s description of the Kitona camp was extremely vague and at odds with country information and considered that his description of his departure of Kitona was far fetched. The Tribunal did not accept that the applicant was called up for retraining or attended the Kitona camp.
The Tribunal did not accept that US$15,000 would have been paid to each of the band members without ensuring that they had the same ideals, were committed to the plan and had the ability to put the plan into action. The Tribunal did not accept that the musicians would have been regarded by potential assassins as being in a position to assist. Accordingly, the Tribunal did not accept that the band was asked to participate in the plan to kill President Kabila or that they went to the police station and were mistreated.
The Tribunal found that the issue of a Convocation was inconsistent with the applicant’s release from jail a few days earlier. The Tribunal noted that the applicant could not explain why the Convocation went to the Mbudi address, whee he had not lived for a long time, and why the applicant went there after his release when he was on the run. His explanation that he had relatives there was not consistent with his earlier discovery that he had not relatives remaining in Mbudi.
The Tribunal noted that the photograph of the applicant on the wanted poster was identical to the photograph on the musician’s identity card and the offshore visa application. This suggested to the Tribunal that the photograph on the wanted poster had been in the applicant’s own possession. The Tribunal found that the poster was false and had been prepared by the applicants to bolster their refugee claim.
The Tribunal considered that there was no reason for the authorities in the DRC to suspect the applicant of any involvement in a plot to assassinate President Kabila. The Tribunal did not accept that the applicant was involved in any plot to kill the President and did not attend any meetings where this was discussed. Accordingly, the Tribunal considered that the applicant would not be at risk from anyone who planned the assassination of President Kabila.
The Tribunal found that the applicant could have left the DRC without obtaining false documents. Any bribes paid to officials upon departure were indicative of general corruption rather than persecution. The Tribunal did not accept that the applicant was required to tell his story to uniformed guards in Malaysia or that he attempted to lodge an application for refugee status in Malaysia. The Tribunal had serious concerns about the involvement of Mr Lumumba in the obtaining of the applicant’s visas to come to Australia but considered that this was irrelevant to the consideration of the applicant’s refugee claims.
In the circumstances, the Tribunal was unable to accept that the applicant faced a real chance of persecution in the DRC for his real or imputed political opinion or for any other Convention reason.

Consideration

The applicant contended that the Tribunal breached the rules of natural justice; failed to comply with s.424A of the Act; failed to take into account relevant considerations and reached its satisfaction under s.65 of the Act without probative material and on illogical and irrational grounds.
The applicant claimed that the Tribunal did not give him notice of two matters that it took into account. Both matters concerned the events shortly after the fall of Mobutu. The first matter was the deaths of the applicant’s parents and the alleged rape of the applicant’s sisters. That matter was clearly referred to in the Tribunal’s letter of 5 July 2002. The principal reason that the Tribunal did not accept the applicant’s evidence on these matters was that the applicant’s account of them contained internal inconsistencies, not because they were inconsistent with general country information. The second matter was the call-up. The fact that the call-up was for ex-Mobutu soldiers was put to the applicant at the hearing and the applicant responded that it was for everyone. Thus, the applicant was given notice. I reject this submission.
The applicant claimed that the Tribunal referred to an enquiry it made of the Department’s Movement Records database that it did not draw to the applicant’s attention. The information was that Patrice Lumumba travelled to Australia on the same plane as the applicant. That information was put to the applicant at the hearing and it was not the critical factor on which the decision turned. In the Tribunal’s words, it was “not relevant to its consideration of whether or not the applicant has a well-founded fear of persecution”.
The applicant claimed that the Tribunal breached the rules of natural justice by failing to disclose country information about the procedure for applying for asylum in Malaysia. I reject this submission. There is no general obligation to disclose country information. The information about Malaysia was insignificant in the context of the decision as a whole and did not concern a major change that had occurred since the last communication between the applicant and the Tribunal.
The applicant claimed that the Tribunal relied on evidence given by other applicants and that the rules of natural justice required the Tribunal to disclose that evidence to the applicant. Evidence of the other applicants as to the number of times the band had played for President Kabila was clearly disclosed to the applicant in the letter of 5 July 2002 as was the Tribunal’s concerns about the “wanted” poster being false. That the same issues arose in respect of other identified applicants was also disclosed. The applicant was given a reasonable opportunity to respond. I reject this submission.
In relation to the general contention of the applicant I note there is no requirement that the Tribunal give an applicant notice of every possible adverse finding. In re Refugee Tribunal and Another; ex parte Aala (2000) 176 ALR 219 Gaudron and Gummow JJ said at 76:
There is no universal proposition that before the Tribunal ever makes a finding adverse to an applicant, it is necessary for the Tribunal to put to the applicant the concerns which are inclining the Tribunal towards such an adverse finding .. the requirement of procedural fairness did not require the Tribunal .. to treat .. (the hearing before it) 'as though it were a trial in a court of law.'
In Kioa v West (1985) 159 CLR 550 at 587 Mason J said that an applicant for an entry permit:
Is entitled to support his application with such information and material as he thinks appropriate, and he cannot complain if the authorities do not accept, without further notice to him, what he puts forward.
Mason J in Kioa v West then went on to identify two possible exceptions - one was information personal to the applicant obtained from a source other than the applicant and the other was the “critical issue” on which the decision turned. Neither of those exceptions applied in this case. The information the Tribunal relied upon was not personal to the applicant and the matters the applicant has raised were not the critical issue on which the decision turned.
The critical factor in this case was that the Tribunal did not accept the pivotal claim made by the applicant. The pivotal claim was that members of the band were approached by ex-Mobutu soldiers to assassinate President Kabila and that each were paid US$15,000 as a first payment. The Tribunal found it implausible that the band would have been approached and paid as alleged without any confirmation that the band members had the same ideals as the proponents of the plot or that the band members had the will and ability to put the plan into action.
The Tribunal is under no obligation to notify an applicant that it finds his claims implausible. A finding of implausibility is part of the evaluation of the material before the Tribunal rather than information of a type which may need to be disclosed. In Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 Merkel J, said at 63:
In general, a decision-maker .. is not under an obligation to inform a party of his or her evaluative conclusions on the material upon which the decision-maker proposed to act.
A finding that the applicant's claims were implausible was an obvious possibility on the material and evidence before the Tribunal. The adverse findings of the Tribunal related to its evaluation of the material before it and which was open to it and nothing further needed to be drawn to the applicant’s particular attention.
The applicant submitted that the Tribunal further breached the rules of natural justice by not disclosing an allegation made by a third party in a telephone call to the effect that the applicant’s claims were not true.
There are circumstances in which adverse information obtained from a third party must be disclosed to an applicant and his comments sought. In Kioa v West (1985) 159 CLR 550, at 629, Brennan J said:
“in the ordinary case, where no problem of confidentially arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.”
In this case, there was a problem of confidentiality. The information was given on a confidential basis. Moreover, the information could not be described as credible. It simply said that the applicant’s claims were not true. It provided no detail about any particular aspects of the claims that were not true. It was a bare, unsubstantiated assertion. The information could not described as significant to the decision to be made. The claims did not add anything to the Tribunal’s decision-making process. Thus, I find the information did not call for disclosure and an opportunity to respond in the sense referred to by Brennan J in Kioa.
In the present case, the integers of the claim were that the applicant was liable to persecution at the hands of, firstly, the authorities in connection with a plot to assassinate President Kabila and, secondly, the perpetrators of the plot who had their money taken by the applicant and his fellow band members. The matters that the applicant says the Tribunal failed to take into account were not either of these claims.
It was open to the Tribunal to not be persuaded by the evidence the applicant put forward. Conclusions about credibility are a matter for the decision-maker in any event: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajahsingham [2000] 74 ALJR 405.
The applicant claimed there was no probative material before the Tribunal to the effect that other people had frequent access to President Kabila. That is no so. Country information referred to a number of people who, it would be readily inferred, had frequent access to the President. There is included a reference to Rashidi whom it was said carried out the assassination.
The Tribunal carefully examined all the material and evidence before it and made findings on all the material questions of fact raised by that material and evidence. The Tribunal gave to the applicant an opportunity to address concerns it had as to his credibility and evidence. It cannot be said the applicant was misled by the Tribunal. No denial of natural justice or jurisdictional error has been established. The decision is a privative clause decision. It has not been suggested that there has been a failure to satisfy any of the so-called Hickman provisos. The application must be dismissed.

I certify that the preceding forty-two (42) are a true copy of the reasons for judgment of Hartnett FM

Associate: T. Jones

Date: 12 March 2004