SZMUK & Ors v Minister for Immigration - [2009] FMCA 270

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMUK & ORS v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 270

MIGRATION – Persecution – review of Refugee Review Tribunal decision – Protection (Class XA) visa – refusal of protection visa – application dismissed.

Migration Act 1958 (Cth), ss.424AA, 424A, 425, 441G

Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592
SZEEU v Minister for Immigration & Anor [2006] FCAFC 2
SZFCE & Anor v Minister for Immigration & Anor [2008] FCA 966
SZKDB & Anor v Minister for Immigration & Anor [2007] FMCA 1036

First Applicant:

SZMUK

Second Applicant:

SZMUL

Third Applicant:

SZMUM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2522 of 2008

Judgment of:

Lloyd-Jones FM

Hearing date:

11 February 2009

Delivered at:

Sydney

Delivered on:

6 April 2009

REPRESENTATION

Counsel for the Applicants:

Mr T. Ower (on a direct access basis)

Counsel for the Respondents:

Ms S.A. Sirtes

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application filed on 29 September 2008 is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2522 of 2008

SZMUK

First Applicant

SZMUL

Second Applicant

SZMUM

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

There are three applicants the subject of these proceedings. The applicants are a family unit comprising of the first applicant (husband), the second applicant (wife) and the third applicant (the couple’s son). The third applicant’s application/claims are combined with the first and second applicants’ claims in accordance with reg.2.08 of the Migration Regulations 1994 (Cth) (“the Regulations”). For the purposes of this judgment, the first applicant will be referred to as “the applicant”.
The applicant was born in 1977 in Sierra Leone. The second applicant was also born in Sierra Leone in 1989. They claim that they left Sierra Leone in July 1999 as their house had been stormed by rebels opposing the then president of Sierra Leone and they went to the Kalia Refugee Camp in Guinea. The applicants claim that they were harassed because they were Mandingo and had the same family name as the then president, Tejan Kabbah.
The applicant claims that when he arrived in the Kalia Refugee Camp, the Republic of Guinea, his registered United Nations High Commissioner for Refugees papers were confiscated. The applicant claims that he stayed there with the second applicant until it was attack in 2001 when he fled to Conakry. The police arrested the applicant in Conakry but released him as they were satisfied that he was not involved with the rebels in the Kalia Refugee Camp. The applicant claims that he then travelled through Mali, Ghana, Togo, Benin, Nigeria, Cameroon and the Central African Republic before finally arrived at the Democratic Republic of the Congo. The applicant’s original application indicates that he lived and worked in Antananarivo, Madagascar from January 2004 until February 2008 when he departed for Australia.
The second applicant claims that she left the Kalia Refugee Camp in July 2001 and lived in Conakry until May 2007 when she married the applicant and joined him in Madagascar. The applicant claims that the second applicant was attacked by a number of men in Guinea because she was from Sierra Leone and of Mandingo ethnicity. They claim that the second applicant still has marks on her skin from when she was attacked.
The applicant claims that if they returned to Sierra Leone they would be seriously harmed or killed for the reason that they are Mandingo and that they shared the same name as the former president. The second applicant stated in her original application that she feared she would be seriously harmed in Sierra Leone or Guinea. The applicants travelled to Australia on Guinean passports but presented Sierra Leone birth certificates.
The first and second applicants further claim that their son is a stateless person. The second applicant’s statutory declaration indicates that her reasons for fearing return to Sierra Leone matches that of the applicant’s claims about her.
The applicants arrived in Australia in February 2008 and applied to the Department of Immigration for a Protection (Class XA) visa on 18 March 2008. A delegate of the Minister refused to grant the visa on 16 June 2008 and the applicant was notified of this by letter dated 16 June 2008. On 24 June 2008, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision. On 2 September 2008, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa. On 29 September 2008, the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal decision (reference number 0803919).
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. An affidavit verifying the transcript of the Tribunal hearing was affirmed by Susan Archer and filed by the applicant. It is marked Exhibit “B”.
At the first Court date, the applicant indicated that he wished to participate in the scheme that gives unrepresented applicants in refugee matters an opportunity to receive independent legal advice on the prospects of their application. The applicant was allocated a panel advisor.

Amended application

With leave of the Court, an amended application was filed on 25 November 2008 containing the following grounds:
1. The Second Respondent failed to comply with its obligations under s.424A and s.424AA of the Act.
Particulars
a) Failure to put orally or in writing to the applicant any concern that it had as to the inadequacy of information submitted by the applicant’s advisors in their letter dated 1 August 2008 regarding attacks upon SLPP supporters following the election in Sierra Leone in 2007.
2. Alternatively, the finding that: “if supporters of the SLLP or the former president had been attacked, prosecuted or killed by the present government in 2007, the SLLP would have drawn attention to this” was unsupported by evidence and was a finding about which the applicant was denied procedural fairness as it was not drawn to his attention that the evidence and submissions made by his advisors in the letter dated 1 August 2008 was somehow deficient because it did not specifically deal with the period between September 2007 and July 2008.
3. Not pressed.
4. The second respondent failed to adequately provide, and explain the relevance of, its information to the applicant pursuant to either s.424AA or s.424A regarding the likelihood of persecution of Mandingo women in Sierra Leone.
Particulars
a. The letter from the second respondent dated 12 August 2008 is not addressed to the applicant, SZMUL but merely requests that her husband “inform” her about it. In any event, the letter does not raise the issue of the safety of Mandingo women in Sierra Leone.
b. The importance of issue of the safety of the Mandingo women in Sierra Leone was not adequately explained orally to the applicant at the hearing.
5. The second respondent failed to address the applicant’s claim of persecution based upon her membership to a social group of Mandingo women in Sierra Leone as a dimension of her overall claims of persecution. By considering the claim in isolation the second respondent failed to consider ‘cumulative’ claim being made.

The Tribunal decision

The Tribunal accepted that the first and second applicants are citizens of Sierra Leone (CB 191). The Tribunal rejected the discrete claim that the third applicant was stateless and he was also taken to be a national of Sierra Leone (CB 191).
The Tribunal did not accept that there is a real chance that the applicants would be persecuted for reasons of their Mandingo ethnicity. The first and second applicants were unable to indicate to the Tribunal any harm that they had or would suffer on the basis of their ethnicity. When asked explicitly to describe the nature of the harm they feared due to their ethnicity, the first and second applicants gave various answers related to other aspects of their claims (CB 192). In respect of the second applicant, the Tribunal did not expect that there was a real chance that she would suffer harm amounting to persecution by reason of her being a woman or a Mandingo woman in Sierra Leone (CB 192-193). In respect of the third applicant, the Tribunal did not accept that it would be persecuted by reason of it being a child in Sierra Leone (CB 193).
The Tribunal accepted that the respective fathers of both the first and second applicants were, by Sierra Leone standards, wealthy men and supporters of the Sierra Leone Peoples’ Party (SLPP) and the former president. This association would be known to people. The applicant had also campaigned for the SLPP. Since their marriage, the first and second applicants share the same surname and are of the same Mandingo ethnic group as the former president (CB 194). The Tribunal acknowledged that while the first and second applicants believe these matters to support their claim of being regarded as SLPP and Kabbah supporters, these could be common features of their respective family units (CB 194).
The Tribunal found that there was no real chance that the applicants would be persecuted for one or more of the five Convention bases on their return to Sierra Leone, including real/imputed political opinion relating to their SLPP/Kabbah support or by reason of their membership of a particular social group constituted by their respective families (CB 195).

The Applicants’ submissions in respect of grounds one and two

Mr Ower, for the applicants, drew the Court’s attention to the Tribunal letter sent to the applicant on 12 August 2008 which contains the following statement:
In order to act in a way that is fair and just (see subsection 422B(3) of the Migration Act 1958 (“the Act”), this information included information to which section 424A of the Act does not apply in accordance with sub-section 424A(3) of the Act.
Mr Ower notes that technically the above statement probably falls within the ambit of s.424AA of the Migration Act 1958 (Cth) (‘the Act”) as distinct from s.424A of the Act. In the abundance of caution (and because s.424AA does not specifically refer to written particulars), both sections were cited in the amended application. Only s.424AA is referred to below. Mr Ower submits that it is the interrelationship between ss.424AA, 424A and 425 of the Act in these particular circumstances that illustrates the Tribunal’s obligations and its breach of them.
Mr Ower submits that the Tribunal in assessing whether there was a “real chance” of political persecution, it relied upon the apparent failure of the evidence to point to killings or attacks on SLLP supporters following the 2007 elections (CB 195 at [81]). It is submitted that this comment was patently inconsistent with the proceeding sentence which had noted that such evidence (concerning the forthcoming council elections in June 2008) had been submitted earlier. The Tribunal’s attempt to put its concerns in this regard at the hearing were cursory (Transcript of Tribunal hearing, pp.13-14, 19) and did not mention anything about its concerns about what it perceived as a lack of political violence after the elections in 2007. It is claimed that the s.424A letter suffers the same fault (CB 165).
Mr Ower submits that the adverse conclusion that was reasonably open on the evidence was never brought to the attention of the applicants. There was evidence of violence after the elections and Mr Ower referred to the following passage in the Tribunal’s “Findings and Reasons”:
81. In their submissions dated 1 August 2008 the applicant’s representatives referred to claims made by the SLPP in relation to violence against SLPP supporters around the time of the parliamentary and presidential elections in August and September 2007 and ahead of the forthcoming local council elections in June 2008. (CB 194)
The Tribunal then continued with the following finding:
I consider that, if supporters of the SLPP or the former president had been attacked, persecuted or killed by the present government, the present ruling party, the APC, or its supporters following the change of government in 2007, the SLPP would have drawn attention to this. (CB 195)
Mr Ower submits that merely noting a piece of evidence does not mean that the Tribunal actively engaged with it, which is demonstrated in the above passage. The piece of evidence referred to formed part of the submissions made by the applicant’s representative in a letter dated 1 August 2008 (CB 132-137). The fourth page of that letter contains three indented paragraphs which directly cite reports dealing with the violence during election time in 2007 (CB 135). The letter then refers to political violence in Kono, which was published in the website on 2 July 2008. Mr Ower submits that the material contained in the indented paragraphs is the evidence which was merely noted by the Tribunal. The report refers to the question of security in Kono and attacks on homes owned by SLPP members. Most importantly, it refers to the personal attack on a person named Tamba Gbomoh. The report concludes in the following way:
Gbomoh alleged that his refusal to join APC as an SLPP supporter triggers the fight. “My refusal to become a member of APC ignited me being mobbed by some APC in Yngema town led by Sahr Yomba of Ngaiya town”, he said. (CB 136.6)
Mr Ower submits that this information is important to this case because the events took place on 2 July 2008. This evidence was put before the Tribunal which stated:
Well, as at August 2008 there was no evidence of SLPP supporters being persecuted and if they were, there would be evidence of it. This statement simply ignores the evidence contained in that letter.
Mr Ower submits that from a procedural fairness viewpoint, the question is whether the evidence was fairly put to the applicants at any stage. The following passage appears in the transcript of the Tribunal hearing:
TRIBUNAL MEMBER: It is true that there was violence at the time of the parliamentary and presidential elections in 2007, however, the evidence available to me suggests that the polls themselves were generally free and fair. This is the election in Sierra Leone. The evidence suggests that the police and the army acted professionally to put a stop to violence generated by all sides.
Now it is difficult to accept on the basis of the evidence available to me that there is a real chance that you will be persecuted because of any perception that you are a supporter of the former president Mr Kabbah or the Sierra Leone Peoples’ Party if you return to Sierra Leone now (short adjournment)
TRIBUNAL MEMBER: Mr [SZMUK], we are talking about the information about the political violence in Sierra Leone.
SZMUK: Yeah.
TRIBUNAL MEMBER: I was saying that the information is relevant to the review because it makes it difficult for me to accept that there is a real chance that you would be persecuted because of any perception that you are a supporter of the former president Kabbah or the Sierra Leone Peoples’ Party.
SZMUK: I’m just saying that if you believe, if what they say according to the election, then everything is going to be fine, you don’t believe. I don’t believe because I don’t believe in this because there were many violence according to news during the election and after the election and these people, you don’t know much about applicants like myself especially Sierra Leone, I was born there and grew up, I know. I may know Sierra Leone history better than you. You may know Australian history better than me because you are an Australia, but also I know Sierra Leone, I know the type of people in Sierra Leone, I know the mentality of the people of Sierra Leone and these people are these people when you talk about my rights or talk about our lips but it’s not what the law says. So really there is still this system in there so they know in themselves they’ve been fighting for long in the politics, know the policies, they elect the APC and the SLPP, the Sierra Leone Peoples’ Party and the APC now have won. Really you can believe all what they say now, they might say this because that is not what is happening. The problem of Africa, not only Sierra Leone, you see.
The Tribunal member also put to the second applicant a question about political violence in Sierra Leone:
TRIBUNAL MEMBER: Now, is it true that there was violence at the time of the parliamentary and presidential elections in 2007 in Sierra Leone.
SZMUL: Yeah
TRIBUNAL MEMBER: However, the police themselves were generally free and fair and the information available to the Tribunal indicates that the police and army acted professionally to put a stop to violence on all sides.
SZMUL: Yes.
Then the Tribunal member went on to say why this was important to the review. Mr Ower submits that again that the applicants’ advisor did not put forth evidence about political violence in Sierra Leone subsequent to the election.
The second applicant gave evidence about the violence in the following passage:
SZMUL: Yes it is true that there is peace back in Sierra Leone but I would like to inform you also that there are still some things like the security, they do well, that is the police and the army, but it is true they don’t do everything, there is still some secret killings, there are still some like they have people who have, like me have all grudges who might kill you, like dead overnight. The enemies of my parents can still be my enemies. These people who hate my parents, they killed my parents. I don’t know that my parents are living or not because I don’t know anything about them since my arrival so they might kill me, my son and my husband. People in Sierra Leone let us know, we are supporters of Kabbah regime and also we are from the same ethnicity, and then for the fact that my parents were a bit wealthy, so all this were because of this enemy, my family and the others. (Transcript, p.20)
Mr Ower concedes that the Tribunal did deal with the issues of grudges and family feuds but did not put to the second applicant anything about post-election violence in Sierra Leone.
After the Tribunal member asked the first and second applicants whether they wished to have time to make further comments, a letter was sent on 12 August 2008 addressed to the first applicant, care of his advisor (CB 163-165). The letter reiterated what the member said to the applicants at the hearing. It referred to the Tribunal accepting that violence existed in Sierra Leone at the time of the parliamentary and presidential elections. However, information available to the Tribunal suggested to it that the polls were generally free and fair and that the police and army acted professionally to put a stop to violence generated by all sides (Human Rights Watch, World Report 2008 relating to the events of 2007 in Sierra Leone).
The Tribunal letter then referred to the real chance test. Mr Ower submits that the Tribunal did not put the applicants on notice in respect of the post-election violence in Sierra Leone. He submits that the Tribunal disregarding this evidence for the purposes of assessing the real chance test meant it had failed to discharge its function. Mr Ower acknowledged that there is no obligation on the Tribunal to disclose its reasoning processes. However, the Tribunal coming to an adverse conclusion not reasonably open to it should have been put to the applicants.

Mr Ower submits in respect of the procedural fairness argument above that he relies on SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592. He submits that the applicants were not given any cogent indication that their evidence of post-2007 attacks on SZLPP supporters would be ignored and that further evidence and submissions on this point were required of them.

Respondents’ submissions in respect of grounds one and two

Ms Sirtes, for the respondents, filed written submissions addressing these two grounds which rely on s.424A or s.424AA of the Act. She made oral submissions that the way in which the applicants advanced ground one emphasised reliance on s.425 and SZBEL. Ms Sirtes submits that a party making a claim under s.424A of the Act is is bound by the language of the section.
Ms Sirtes further submits that this aspect is important because what may or may not have been fair in respect of matters the applicants would have liked commented on has no impact on s.424A of the Act. When an allegation of jurisdictional error is made in respect of the application of s.424A, it is not possible to look at nebulous concepts of what applicants may have liked to have commented upon.
The information the applicants say ought to have been put to them is actually independent country information and newspaper reports. These were provided by them through their advisor and the information is not caught by s.424A. Ms Sirtes suggests that the applicants’ argument may be that there was an issue in the proceedings that was not put to them, as opposed to information pursuant to s.424A. She suggests that the issue was the level of violence surrounding the 2007 elections in Sierra Leone.
Ms Sirtes submits that the issue was raised with the first and second applicants at the Tribunal hearing and this is apparent from the Tribunal decision. It was put to the first applicant at para.55 (CB 188) and to the second applicant at para.59 of the Tribunal decision (CB 189). Ms Sirtes submits that this issue was squarely raised with the applicants orally and, from that point, they were on notice that it was an issue in the review in the SZBEL sense. The applicants were each given an opportunity to comment at the Tribunal and again by reply to a s.424A letter.
Ms Sirtes submits it is important to note that the Tribunal was required to ensure that the applicants were aware this may be an issue in review pursuant to s.425 of the Act. However, it was not obliged to put this independent country information to the applicants because this material falls within the exception in s.424A(3)(a). If it is said that the Tribunal put the information to the applicants pursuant to s.424AA, then they were given a subsequent opportunity to comment upon it. These circumstances imply s.424AA in situations where an applicant wishes further time to comment.
The applicant’s advisor did reply to the s.424A letter (CB 135). The reply included media reports or country information which the applicants wished to put before the Tribunal (CB 135). Consequently, all of that information came within s.424A(3)(b) insofar as it was information given by the applicants to the Tribunal for the purposes of the review. To the extent that the independent country information was provided by the applicants themselves, the Tribunal was not required to put all that information to them again for any further comment. Consequently the Tribunal was under no obligation, in a legal sense, to put any of this information to the applicants for comment.
It was submitted that even if the Tribunal had formed a view about the evidence, it was not required under s.424A to put that view back to the applicants for comment because that was the member’s subjective appraisals or thought processes about the evidence. To the extent that the member may have felt that the evidence had gaps or was in some way lacking, he is not required to make out the applicants’ case for them. The identification of gaps also does not form part of the information.
Ms Sirtes submits that what appears to be advanced on behalf of the applicants is that they ought to have been given further opportunity to provide information to the Tribunal based on s.425 or SZBEL. She submits that even if that was the case the Tribunal was not obliged to hold a second hearing. Even though the applicants were now commenting on the Tribunal’s s.424A letter, the issue of whether there was violence during the 2007 elections in Sierra Leone has not changed. Ms Sirtes submits that the issues in review were precisely as they had been at the time of the Tribunal hearing and the Tribunal was not required to undertake the circular proposition that the Court discussed in SZBEL.
Ms Sirtes submits that while the applicants may feel aggrieved by a failure of the Tribunal to point out to them the weaknesses in their case, the Tribunal has met its obligations under the Act.
The second ground alleges that the second applicant was not included in the s.424A letter addressed to her husband. Ms Sirtes referred the Court to the Tribunal application where the following appears:
Details of persons included in this application.
Any person included in the decision made by DIMA should be included in this application. All applicants must be in Australia on the date the decision was made and on the date the Tribunal received this application. Each person is an applicant in his or her own right. Unless an included applicant advises the Tribunal otherwise the Tribunal will communicate with Applicant 1 or his or her authorised recipient. Applicant 1 must inform each applicant the contents of any communication from the Tribunal and apply to the Tribunal for them. (CB 106-109, emphasis added)
Section C of the Tribunal application asks:
Do you have an advisor you authorise to act for you in relation to this application? (for example a migration agent) (CB 107)
The applicant answered “yes” and provided details.
Under Section D the applicant requested that all correspondence in connection with the review be sent:
To my adviser whom I nominate as my authorised recipient (CB 108)
Ms Sirtes submits that the term “authorised recipient” is a term of art for the purposes of s.441G of the Act. Section F of the Tribunal application contains the applicant’s declaration. The instructions at the head of the declaration state:
If any applicant is under 18 years of age or lacks legal authority to sign on their own behalf, a parent or guardian should sign on their behalf. (CB 109)
This is relevant to the third applicant who is an infant child. The declaration continues:
(I)f this application includes more than one applicant, I undertake to inform each other applicant of the contents of any communication from the tribunal and reply to the Tribunal for them.
The declaration was signed and dated by the first applicant as follows:
Unless I advise the Tribunal otherwise, I authorise the Tribunal to communicate with applicant 1 or his or her authorised recipient about this application. (CB 109)
Then the signature of the second applicant appears followed by the signature of the first applicant signed on behalf of the third applicant minor.
Ms Sirtes referred to SZKDB & Anor v Minister for Immigration & Anor [2007] FMCA 1036 at [13]-[20] per Smith FM and SZFCE & Anor v Minister for Immigration & Anor [2008] FCA 966 per Rares J.
Ms Sirtes submits that the first and second applicants explicitly acknowledged that they authorised not only the first applicant to correspond on their behalf, but also that the Tribunal would correspond with the applicants’ authorised agent. Section 441G mandates this of the Tribunal and provides the manner in which this is to occur. The letter which was sent pursuant to s.424A is addressed to the authorised recipient (CB 163). The letter does start with a salutation to the first applicant but has been sent in accordance with s.441G to the authorised recipient. The letter reiterates that the second and third applicants should be informed that the Tribunal will regard anything that it receives as a joint reply from all the applicants unless otherwise advised (CB 165).

Consideration of grounds one and two

With respect to ground one I believe the oral submissions made by Ms Sirtes reflects the correct approach to the issue. I am satisfied that the independent country information was provided by the applicants through their advisor and that the Tribunal was not required to put that information back to them for comment: s.424A(3)(b) of the Act; SZEEU v Minister for Immigration & Anor [2006] FCAFC 2.To the extent that the Tribunal had formed a view about that evidence, it was similarly not required to state that view to the applicants for comment. This does not constitute “information” as it was the subjective appraisals or thought processes of the Tribunal member about that evidence: SZEEU. To the extent that the Tribunal may have felt that there were still gaps in the evidence or that the evidence was in some way lacking in certain respects the Tribunal is not required to make out the applicant’s case for them: Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J. Nor is the Tribunal required to identify gaps within the information.
In respect of the argument advanced by the applicants that they should have given further opportunity to provide further information to the Tribunal on the basis of s.425 and SZBEL, I agree with Ms Sirtes that the Tribunal was not obliged to give them a further hearing. While the landscape of the evidence may have changed to the extent that the applicants were now commenting on the Tribunal’s s.424A letter, the core issue of whether there was violence during the 2007 elections in Sierra Leone has not changed. Essentially the issues in review were still the same as they had been at the time of the hearing and nothing has changed in this regard. Sections 424A and 425 do not require the Tribunal to hold a further hearing to respond to evidence an applicant has given. Although the applicants may feel aggrieved by a failure on the part of the Tribunal to point out to them all the weaknesses in their case so that those matters may be addressed there is no obligation on the Tribunal to follow this course. I am satisfied that the Tribunal’s obligations have been met in accordance with the provisions of the Act.
In respect of ground two I am satisfied that the Tribunal complied with the requirements of s.424A in a request for a response to the letter issued under that section. The material set out above indicates that the second applicant did sign an acknowledgment indicating that she accepted that any notification was to be addressed to her husband. The Tribunal clearly expressed how it would treat the response to that notice. The notice itself requests the addressee to notify the relevant parties and states that the Tribunal would accept a response on their behalf.

The applicants’ submissions with respect to ground four

Mr Ower submits that there are two flaws in the s.424A letter:
a)The letter is formally addressed to the first applicant and there is an expectation that he would convey its contents to the second applicant (CB 165). Although it has been forwarded to the applicants’ authorised representative, there was no guarantee the representative would, or should, regard it as appropriate to explain it to the second applicant when it was not addressed to her.
b)Given that the first and second applicants speak different languages and very little English, the need for two separate letters should have been evident.
Although the letter refers to the second applicant’s claim regarding membership of a particular social group, being Mandingo women, it does not refer the Tribunal’s potential reliance upon legislation enacted by the Sierra Leone government concerning women’s rights. Mr Ower submits that given that this issue was specifically raised at the hearing but was not adequately explained, it should have appeared in the letter.

Respondent’s submissions in respect of ground four

Ms Sirtes submits that Ground 4(a) is misconceived as it ignores the various undertakings made by the first applicant on behalf of the second and third applicants at the time of the application (CB 106-109). See also SZKDB at [13]-[20]. The s.424A letter dated 12 August 2008 concludes:
You should inform your wife, Mrs [SZLUM], and your son, Master [SZMUM], about this letter and any reply will be regarded as a joint reply unless the Tribunal is advised otherwise. The letter was sent to the applicant’s authorised recipient (in accordance with the application instructions) who responded on behalf of all three applicants.
Ms Sirtes submits in respect of ground 4(b) that the Tribunal discussed the ethnicity of the first and second applicants at the hearing to obtain particulars as to how their ethnicity had caused them harm or difficulty in the past. This was so that it could assess the applicants’ real chance of persecution because of their ethnicity for its decision. Ms Sirtes submits that the Tribunal decision is clear that neither applicant gave evidence about any incident where they were harmed because of their ethnicity. Instead, when asked directly by the Tribunal, the applicants discussed other claims. The Tribunal decision makes plain that it considered the issue (CB 192-193).

Consideration of ground four

The issue of ethnicity was initially raised before the first applicant in the presence of his wife (Transcript of Tribunal hearing, pp.6-7). Again the issue was raised with the second applicant when she was questioned by the Tribunal (Transcript of Tribunal hearing, p.17). During the hearing neither applicant made direct claims of persecution because of their Mandingo ethnicity. The essential tenor was that the first applicant would be associated with the ex-president of Sierra Leone and his father who bore the same surname as the ex-president was also his loyal follower and supporter. The second applicant’s main response focused on the fact that she was a woman and her parents were considered wealthy. There was no specific response in respect of her Mandingo ethnicity.
The Tribunal letter to the applicant’s agent dated 12 August 2008 raised the issue of the applicants’ ethnicity:
In their submission dated 1 August 2008 your representative said that you and your wife feared being persecuted in Sierra Leone for reasons of your ethnicity (Mandingo and Kario), your impugned political opinion (pro-SLPP or in favour of the former president Kabbah), your wife’s membership of a particular social group of Mandingo women and your son’s membership of a particular social group comprising of young children. At the hearing on 6 August 2008, however, you expressly denied that you were from the Kario ethnic group. You and your wife confirmed that you were both from the Mandingo ethnic group. Both you and your wife indicated that persecution you feared if you returned to Sierra Leone arose from your real or imputed political opinion in favour of the SLPP and the former president Tejan Kabbah based on your own or your respective father’s support of the SLPP and the former president, the fact that you share the same family name as a former president and the fact that you are from the same ethnic group as the former president, the Mandingo ethnic group. Neither you nor your wife indicated that you feared persecution for the reason of your race other than on this basis than your wife indicated that the persecution that you feared as a Mandingo woman was once again based on peoples’ enmity towards her family because her father had been a wealthy man and a great supporter of SLPP. The fear which you and your wife both expressed for the safety of your son was based on the same claim. (The Tribunal noted that for the sake of completeness that there is nothing in the material before the Tribunal to suggest that a particular social group of “young children” are persecuted for reason of your membership of that group in Sierra Leone). (CB 164)
The first applicant then raised the issue of ethnicity in his statutory declaration attached to the agent’s response of 20 August 2008:
11. Also my wife and I are from the Mandingo ethnic group as was Tejan Kabbar. The new leader Charles Margai is from the Temne ethnic group.
12. People hold grudges. There is always a feeling that the Mandingo ethnic group came to Sierra Leone from outside. The Mandingo also have most of the financial power in Sierra Leone. So there are lots of reasons for other Mende Temne tribes to resent us and to seek to persecute us. In Africa you are instantly recognised as part of a particular tribe. (CB 168)
The Tribunal decision clearly sets out its consideration of this issue (CB 192-193). I am satisfied that this ground cannot be sustained and should be dismissed.

Applicants’ submissions with respect to ground five

Mr Ower submits that the Tribunal attempted to disregard the issue of racial persecution by saying it was unable on the evidence to identify a distinct basis for such a claim (CB 192). He claims that this should have been no surprise as the evidence given by the first applicant continually referred to his ethnicity as one aspect of his overall claims (Transcript of Tribunal hearing, pp.6-8). Being Mandingo meant that the applicants were immediately recognisable as supporters of the SLLP and former president Kabbah. The ethnic dimension added weight to the claim of political persecution and should have been treated cumulatively with that claim. The Tribunal finding in relation to the second applicant on this point (CB 193) suffers from the same flawed approach. Mr Ower submits that the artificiality of this approach is all the more poignant given that the second applicant’s ethnicity was a factor in her being targeted for rape in Guinea.

Respondents’ submissions with respect to ground five

Ms Sirtes relied substantially on her submissions made in respect of ground four. She further submits that the Tribunal did not fail to appreciate that there may be a cumulative effect to the claims (CB 194), as it plainly accepted that the applicants were of the same ethnic group as the former president, but that there was not a real chance of harm on that basis (CB 195).

Consideration of ground five

The Tribunal in its decision acknowledged and accepted that the applicants were both of Mandingo ethnicity. Reference was made to the source of this information in both the written submissions of the applicant’s advisor and the applicants’ statements made during the Tribunal hearing. At the hearing and in the subsequent 424A letter, the Tribunal invited the applicants to state the nature of any persecution they feared due to their ethnicity. Despite these invitations, the information was not forthcoming. Rather both applicants emphasised that they were identified as members of wealthy families, supporters of the SLPP and the former president Kabbah. Specific reference was made to their respective fathers’ wealth. There was no evidence before the Tribunal that they would be subject to persecution based purely on their ethnicity. Evidence was given that they would be easily identified as Mandingo (who tend to be of a higher socio-economic class) and supporters of the SLPP and the ex-president. However there is no evidence to suggest that all members of the Mandingo ethnic group possess these characteristics.
The Tribunal clearly stated that it did not believe that their ethnicity would result in the applicants suffering a real chance of harm. I accept that the Tribunal correctly decided that ethnicity should have been considered a cumulative factor in assessing the likelihood of the applicants’ persecution.

Conclusion

As none of the five grounds can be sustained the application of 29 September 2008 and the amended application of 25 November 2008 should be dismissed. The first and second applicants are to pay the first respondent’s costs.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:

Date: 6 April 2009