Ndaw v Minister for Immigration and Multicultural Affairs

[1999] FCA 1534

FEDERAL COURT OF AUSTRALIA
Ndaw v Minister for Immigration & Multicultural Affairs [FCA] 1534

MAMADOU NDAW v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N825 of 1999

WILCOX J
SYDNEY
27 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N825 of 1999

BETWEEN:	MAMADOU NDAW Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	27 OCTOBER 1999
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1. WILCOX J:   This is an application for review of a decision of the Refugee Review Tribunal refusing an application for a protection visa made by the applicant, Mamadou Ndaw. 

2. Mr Ndaw is a citizen of Senegal.  He entered Australia in February 1997 on a visitor's visa.  About 12 months later, he applied for a protection visa.  When asked about the delay, Mr Ndaw stated a Sengalese woman had advised him, shortly after his arrival in Australia, that he should not seek refugee status as it was difficult to obtain.  He said that it was only later that he realised that the woman had not been honest with him and he lodged his application for a protection visa.  The Tribunal Member commented that she found this explanation "implausible".  She did not elaborate about that.  This is one the two grounds upon which it is argued the Tribunal’s decision ought to be set aside and the matter remitted to the Tribunal. 

3. The more significant complaint is that the Tribunal did not address the claims made by Mr Ndaw.   Mr Ndaw said that, years ago, he joined the Democratic Party of Senegal, (PDS), led by Abdoulaye Wade.   He said that, following elections in 1993, PDS joined the government.  He, Mr Ndaw, did not approve of this and ceased being active in the party, although he did not actually resign.  Mr Ndaw went to university in 1994 and he was active in student politics, but he was not active in PDS affairs.  He said some of his friends, who remained in PDS, pressed him to become active but he declined to do so.  He said that if he was returned to Senegal, he would be likely to express his opposition to PDS being a member of the governing coalition and to criticise the government's policies.  He feared that, if this occurred, he would be persecuted; he might be put into gaol.

4. The Tribunal Member obtained information about the political history of Senegal, from which it transpired that the PDS was a member of the governing coalition until shortly before the 1993 elections.  The PDS members then withdrew, because Mr Wade wished to contest the Presidency. After the election, allegations were made against him, and other PDS leaders, of involvement in a political assassination.  However the charges were dropped and the party rejoined the government in February 1995.  It appears Mr Ndaw left Senegal in October 1996, that is some 20 months later.  He does not suggest that he suffered any persecution during this period. 

5. As I have indicated, the Tribunal member did not accept Mr Ndaw's reason for delaying his application for a protection visa.  However, it seems to me this was of little moment, because she immediately went on:

   “However, even if I accept Mr Ndaw's claims at face value, including the claim that he would continue his political involvement if returned to Senegal now, I do not consider he has a well-founded fear of persecution because of his political opinion.”

6. The Tribunal member pointed out that the only harm which Mr Ndaw claimed ever to have suffered, because of his political opinion, was an eye injury when he was involved in a fight with some acquaintances from the Casamance region in 1988.  The fight apparently arose out of a dispute about an independence movement for that region.  The Tribunal member referred to this fight as being:

   “… an isolated incident of violence between acquaintances who disagreed over a political issue.  It was never repeated and clearly was not part of a pattern of persecution directed against him because of his political opinion.  There is nothing in the evidence provided by Mr Ndaw, or any other information before the Tribunal which suggests that he faces a real chance of being seriously harmed on his  return to Senegal because he opposes a separatist movement in Casamance.”

7. The Tribunal member then turned to the claim that, if he was returned to Senegal, Mr Ndaw would become politically active and this would cause him to be persecuted.  She said:

   “Apart from pressure to again become active in the PDS or to support the government, Mr Ndaw does not claim to have experienced any problems in Senegal because of his involvement in the PDS or in student politics.  As pointed out at the hearing, information before me indicates that opposition parties and groups are legal in Senegal and members can generally express their views without experiencing serious problems.  DFAT advise that Senegal is regarded as one of the more democratic and progressive nations in Africa and has a relatively good, and improving, human rights record. … The US Department of State Country Report on Human Rights Situations for 1988, notes that while there are problems in Senegal, opposition parties have been legal since the country became independent in 1960 and freedom of expression is generally respected.  Apart from some members of the Casamance separatists movement, there are no reports of political prisoners, disappearances, or killings in 1998.  In these circumstances, I do not believe that he faces more than a remote chance of being harmed because of his political opinion in the reasonably foreseeable future and therefore do not consider his fear of persecution for reason of political opinion to be well- founded.”

8. The solicitor for Mr Ndaw, Mr Karp, drew my attention to some material in the file, considered by the Tribunal member, that raises questions about the fairness of the elections held in 1996.  There may have been irregularities in the ballot at that time.  But that is a different issue from the question of whether people with dissenting political opinions are persecuted in Senegal.  It seems to me the Tribunal member addressed that question in the passage I have quoted.  Mr Ndaw may be unhappy about her conclusion, but I find it impossible to accept the submission that the issue was not addressed.  The facts of the case are, of course, for the Tribunal to decide, not the Court.  There is no substance in the argument that the Tribunal failed to address the claims made by Mr Ndaw in support of his application for a protection visa. 

9. In relation to the second point, the comment about the explanation being implausible, I agree with Mr Karp that it would have been desirable if some reason had been given for the Tribunal reaching that view.  However, it seems to me clear this did not affect the outcome of the case; the Tribunal member was prepared to deal with the substance of the matter on the basis of Mr Ndaw's claims.  There would be no point in setting aside the Tribunal decision, simply because there was a failure to give full reasons in respect of a matter that did not affect the ultimate decision. 

10. The application for review must be refused and I dismiss the application.

    [An application was made for costs.  It was not opposed.]

11. I order that the applicant pay the respondent's costs of the proceeding.

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

Associate:

Dated:             27 October 1999

Solicitor for the Applicant:	Leonard Karp, McDonnells Solicitor
Solicitor for the Respondent:	Murray Allatt, Australian Government Solicitor
Date of Hearing:	27 October 1999