Woldie, Solomon v The Minister for Immigration and Multicultural Affairs

[1997] FCA 1292

FEDERAL COURT OF AUSTRALIA

REFUGEE STATUS  - capability of relocation to another part of the country - whether relocation reasonable - whether question of reasonableness addressed by Tribunal - assessment of determination - whether Tribunal required to explicitly refer to time of determination.

Migration Act 1958 s 29, s 36

Chan Yee Kin v Minister for Immigration and Ethnic Affairs  (1989) 169 CLR 379
Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 55 FCR 375
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265

SOLOMON WOLDIE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
WAG 139 OF 1996

FRENCH J
PERTH
26 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 139  of   1996

BETWEEN:

SOLOMON WOLDIE

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

26 NOVEMBER 1997

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The Applicant is to pay the Respondent’s costs of the 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	WAG 139 of 1996

BETWEEN:	SOLOMON WOLDIE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	26 NOVEMBER 1997
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION
Solomon Woldie (“Woldie”) was born in Ethiopia on 10 June 1960.  He is a person of Amhara ethnic background.  The Amhara is one of seventy ethnic groups which comprise the population of Ethiopia.  It makes up about a third of that population.

Woldie came to Australia from New Zealand on 25 February 1992 on a student visa.  He had been in New Zealand since 1989.  On 2 March 1993, he lodged an application for refugee status.  This was refused by a delegate of the Minister on 14 July 1993.  He then lodged an appeal with the Refugee Review Tribunal which affirmed the delegate’s decision on 17 June 1994.

On 14 June 1995 he lodged a fresh application for refugee status and for the issue of a protection visa.  This was refused by a delegate on 1 November 1995.  An application for review of that decision was lodged with the Refugee Review Tribunal on 4 December 1995.  On 19 August 1996 that application was refused.   Woldie subsequently filed an application in this Court on 12 September 1996 for an order of review.

THE TRIBUNAL’S FINDINGS
The Reasons of Decision of the Refugee Review Tribunal on 19 August 1996 incorporated and adopted the factual findings of the earlier Refugee Review Tribunal decision of 17 June 1994.

Woldie’s family lived in the Province of Arsi in the region of Arbugugu.  They were reasonably well off.  In 1974 the government of the day under a program of land nationalisation,  confiscated a house and land owned by his father, leaving the family with a comparatively small area upon which to reside.  Those who resisted the nationalisation policy were, according to  Woldie, persecuted, imprisoned and killed.  So much was accepted by the first Tribunal which concluded, however, that the only consequence for the family of the government’s policy was the loss of house and land and this did not amount to persecution. 

In 1976 when he was 16 years old, Woldie joined the Ethiopian Peoples’ Revolutionary Party (“EPRP”), an organisation opposed to the government. The government was then persecuting opposition political parties.   Woldie was detained for about a month at the Arsi Province Prison.  He was interrogated and tortured on account of his involvement with the EPRP.  He was eventually released and was given a strong warning to stay out of politics.  He did not engage in political activity again after his release and the EPRP was virtually wiped out by the campaign against it.  The first Tribunal accepted that he had been persecuted in 1976 by  detention and torture on account of his involvement with EPRP.

In 1977,  Woldie joined a Christian religious faith called “Kalehywot”.  This was a united evangelical church.  Religious activities were banned by the government at the time.  On 20 September 1978 he was detained when authorities found a Bible and Protestant song book in his home.  He was not released for about five months.  He was again interrogated and accused of being a member of the CIA which, the government believed, was funding religious groups.  He was tortured by beating and kicking and was forced to do hard labour.  The first Tribunal accepted that he had been persecuted on account of his possession of a Bible and songbook. 

In 1986,  Woldie completed his secondary education and undertook and completed teacher training in 1987.  He began teaching immediately.  There was suspicion on the part of the teaching authority that he was teaching religion.  After teaching for six months, he was warned about teaching religion and was dismissed.  The first Tribunal accepted that he lost his teaching post on “discriminatory grounds”.  However it was not prepared to find that the loss of employment amounted to persecution.

Compulsory military service was introduced in Ethiopia in 1984 but  Woldie avoided the obligation by ignoring notices and keeping out of the way.  He did not believe in the civil war nor in the government.  He remained a member of the Kalehywot Church until he departed from Ethiopia. 

As at 1994 there was, according to  Woldie, continuing tribal conflict between Amhara and Oromo ethnic groups.  He expressed concern at the time that if he returned to Ethiopia he would become involved and lose his life.  He had lost contact with his mother, brother and sister and believed that they might have been killed in the violence.  The Government had done nothing to stop that and  Woldie believed he had nowhere to go if he returned.  He believed that he would be forced to return to his home in Arsi where there was violence.  He left Ethiopia to come to Australia because he was too frightened to remain.  He had obtained a passport with the help of friends.  There were no difficulties about getting passports at the time as corruption was rife.

The first Tribunal accepted that there was at that time serious Amhara/Oromo tribal conflict in Arsi where  Woldie’s parents lived and that he would face physical danger if he were forced to return to that region.  It found however, that he had lived in Addis Ababa for considerable periods of time in the past and that his brother had said in a letter before the first Tribunal that he had been taking refuge in Addis Ababa for the six months prior to writing the letter.  The first Tribunal was satisfied that  Woldie could live safely in Addis Ababa upon return at that time or within the reasonably foreseeable future. 

The second Tribunal hearing accepted the findings of fact of the first Tribunal but noted that  Woldie had claimed at the hearing that the letter was not from his brother but from a friend.  The Tribunal accepted that the word “brother” could be used in circumstances where the person referred to was not strictly speaking a brother in the sense of having the same immediate parents.  It accepted that the letter was not written by Woldie’s brother but by a friend.  However the fact remained, it found, that Woldie had previously lived in Addis Ababa. 

Reference was made in the second Tribunal’s reasons for decision to a 1996 report by Amnesty International that fighting continued in some regions of Ethiopia between government forces and the armed opposition Oromo Liberation Front in the Oromo region.  There was also fighting in Somali and Amhara regions involving other groups.  The Tribunal noted, however, there was no suggestion of any trouble in Addis Ababa.  The applicant was not involved with any of the groups fighting with the Government along tribal lines.  He had stated categorically at the hearing that he did not believe in violence.  The Tribunal was satisfied that  Woldie would not involve himself in any group that would violently oppose the Government.  It went on to say:

“The Tribunal is also satisfied that the applicant can avoid tribal conflict in the Arsi region by living elsewhere in Ethiopia such as in Addis Ababa.  As national protection takes precedence over international protection the applicant does not have a well founded fear of persecution in relation to Ethiopia as a whole.”

Reference was made to advice from the Department of Foreign Affairs and Trade concerning the position of the Amharic people in which it was said that there was no systematic persecution of those people.  The Prime Minister of Ethiopia is Amharic and the Amhara have a national movement in the ruling EPRDF.  There was, however, advice from the Department of Foreign Affairs that the lack of centrally defined control had resulted in many regional leaders acting in an autonomous manner and reprising old regional tensions.  There was no evidence that the ill-treatment of different ethnic groups or political organisations was the consequence of direct government policy.  The Amnesty report did mention that the President of AAPO, the All Amhara Peoples Organisation, Professor Asrat Woldeyes was among a number of people jailed for alleged sedition.  At his trial, approximately five hundred demonstrators were arrested and detained by police and were said to have been ill-treated by police, including having their heads forcibly shaved.  Most had since been released. 

The Tribunal expressed its concern that citizens of Ethiopia were arrested in the manner described for demonstrating.  Moreover it accepted that Professor Woldeyes could well be a prisoner of conscience.  However, the advice from Foreign Affairs was clear, that there was no systematic persecution directed against Amharic people.  Accordingly the Tribunal was satisfied that  Woldie did not face a real chance of persecution in Ethiopia as a result of this tribal grouping.

It went on to consider his former membership of the Ethiopian Peoples Revolutionary Party.  It adopted as a point well taken the view of the first Tribunal that  Woldie’s activities in the EPRP were many years ago.  He did not relate any difficulties through the 1980’s and during this time the Mengistu government had been in power in Ethiopia, which was the government responsible for the infamous “red terror”.  Moreover,  Woldie had been able to complete studies and work and then able to travel overseas to undertake further studies. 

Reference was made to further advice from the Department of Foreign Affairs and Trade following which the Tribunal observed:

“The applicant’s involvement is now a long time ago.  He is not implicated in the Red Terror.  The Tribunal is satisfied that the applicant does not and will not advocate violence.  The Tribunal is satisfied that the applicant does not face any real chance of harm as a result of his previous involvement in the EPRP.  Further the Tribunal is satisfied, on the basis that it is now many years since his political involvement and he lived for many years without difficulty during the 1980s, and that he left Ethiopia to study in New Zealand, that when the applicant left Ethiopia he did not have a well-founded fear of persecution for a Convention reason.”

The Tribunal referred to  Woldie’s claimed connections with a group called the Ethiopian Rescue Committee which operates out of Adelaide and with which he has had a number of discussions.  He had submitted a letter from the group in support of his application.  The Tribunal considered the letter and his involvement and was satisfied that while he had had contact with members of the group his involvement was low level.  The letter which indicated that members of EPRP are “killed, jailed, and kidnapped” did not impress the Tribunal as one which relied on objective information.

The Tribunal found:

“The Tribunal is not satisfied that the Ethiopian government would have any knowledge of the applicant’s connections with the Ethiopian Rescue Committee particularly given his minimal contact with this group.  However even if they do the Tribunal is satisfied that his involvement has been so minimal that it does not lead to the applicant facing a real chance of persecution.  He has not otherwise engaged in any political activity in opposition to the current government.”

Reference was also made to material from the Ethiopian Human Rights Council, submitted by  Woldie and the concerns expressed by the Department of Foreign Affairs and Trade about the Council’s inability to separate its political agenda from its human rights agenda.  The Tribunal shared that concern.  It noted the United States Department of State Country Reports on Ethiopia for 1995, which indicated that “there continued to be numerous unconfirmed reports of alleged disappearances” by human rights groups.  The Ethiopian government’s response was that some of those were awaiting trial because of crimes committed during the Mengistu regime.  The Tribunal concluded from the material that there was nothing in it to support the contention that someone with a previous involvement in EPRP many years ago would face a real chance of persecution upon his return to Ethiopia. 

On the matter of religion, the Tribunal referred to the decision of the first Tribunal and noted that  Woldie provided no additional information in relation to this claim apart from the assertion that he would not rejoin the Kalehywot Church because of its alignment with the government.  The Tribunal took the previous decision to be correct.  The Tribunal’s overall conclusion was expressed as follows:

“the Tribunal is satisfied that the applicant does not face a real chance of persecution should he return to Ethiopia on the basis of either the applicant’s past political association, his tribal grouping, his religion or some combination of these.  The Tribunal is satisfied that the applicant is not a refugee.”

GROUNDS OF THE APPLICATION FOR REVIEW
The grounds of the application are as follows:

“Error of Law

(a)In making the decision the Tribunal erred in law by incorrectly applying the law to the facts found by the Tribunal

Particulars

(i)the Tribunal erred in law in concluding that the Applicant is not a refugee as provided for by the Migration Act 1958.

(ii)the Tribunal erred in law in concluding that the facts as found by the Tribunal did not amount to persecution as defined in the Refugees Convention as amended by the Refugee Protocol (as defined in the Migration Act 1958).

(iii)the Tribunal erred in law in finding that the Applicant did not have a well-founded fear of persecution.

(b)In making the decision the Tribunal erred in law by incorrectly interpreting the applicable law.

Particulars

(i)the Tribunal erred in law in holding that because the Tribunal was satisfied the Applicant would not involve himself in any group that “violently opposes the government” of Ethiopia the Applicant was therefore not a refugee.

(ii)the Tribunal erred in law concluding that because the Applicant could “avoid tribal conflict in the Arsi region by living elsewhere in Ethiopia such as in Addis Ababa” the Applicant was therefore not a refugee.

(iii)the Tribunal erred in law in holding that the Applicant was not a refugee because he allegedly did not have a well founded fear of persecution in relation to Ethiopia was a whole.”

THE CONTENTIONS
The first contention advanced on behalf of  Woldie was that the Tribunal had not made a specific finding on the question whether he had a well-founded fear of persecution as at the time of the determination of his application for a protection visa.  Reliance was placed on the decisions in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 55 FCR 375 for the proposition that the existence of a well-founded fear of persecution must be decided at the time at which the determination as to refugee status is made.

It was contended that although the Tribunal said that  Woldie did not have a real chance of persecution as a result of his tribal grouping, it had accepted the decision of the first Tribunal which had indicated that there was serious Amhara/Oromo tribal conflict in Arsi where  Woldie’s parents lived and that he would face physical danger if he were forced to return to that region.  Physical danger, it was said, would come within the wide definition of persecution and  Woldie therefore had a well-founded fear of being persecuted because of his race, that is to say because he is a member of the Amhara tribe.  The Tribunal, however, had found that he did not have a well-founded fear of persecution relating to Ethiopia as a whole because he could avoid tribal conflict in the Arsi region by living elsewhere in Ethiopia, such as in Addis Ababa.   Woldie accepted that if a person could live safely in another part of the country he might not necessarily be a refugee - Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265. He argued, however, that the mere fact that a person might be able to live in another part of the country was not sufficient, it must be reasonable for the person to live in the other part of the country. The Tribunal by concluding that he could live elsewhere in Ethiopia without considering whether it would be reasonable to expect him to relocate, had erred in law. It had not correctly identified the real issue in the matter.

The Minister argued that if there is a finding of a well-founded fear of persecution in relation to a specific region within a country but that effective protection is offered outside the region, then the question is whether it is unreasonable to expect an applicant to relocate because the part of the country where protection is available is not reasonably accessible to that person.  Contrary to  Woldie’s submission the Tribunal did consider whether or not relocation was a reasonable option for him.  It had reproduced part of the reasons for the previous decision of the Tribunal made on 17 June 1994 which had referred to  Woldie’s residence for considerable periods of time and the evidence of the letter of his brother who, it was accepted, was a friend  when describing his recent refugee in Addis Ababa.  It referred to the Amnesty International Report which contained no suggestion of any trouble in Addis Ababa and it had concluded that  Woldie could avoid tribal conflict in the Arsi region by living elsewhere in Ethiopia such as in Addis Ababa.  The Tribunal it was said was entitled to take as correct the earlier finding that he could live safely in Addis Ababa if he returned to Ethiopia at that time or in the foreseeable future.  He had not raised any new material to show it was now not reasonable to expect him to relocate to Addis Ababa.  He had never suggested it was impractical for him to relocate from the Arsi region.

As to the absence of a specific finding on the time at which  Woldie’s fear of persecution should be determined, the Minister argued that this criticism required a minute consideration of the Tribunal’s reasons for decision which was not the proper role of a court upon administrative review of a decision.  It is said to have been apparent from a fair reading of the Tribunal’s reasons that its decision was based on a consideration of various factors to which reference was made based on the evidence available at the date of the decision and that it was determining the issue of  Woldie’s refugee status as at the time of making its determination. 

STATUTORY FRAMEWORK
The grant of visas is authorised by s 29 of the Migration Act 1958, which provides, in part:

"29(1)  Subject to this Act, the Minister may grant a non-citizen                   permission, to be known as a visa, to do either or both of the    following:

(a)       travel to and enter Australia;
           (b)       remain in Australia."

The Act provides for prescribed classes of visa and for the prescription of criteria for visas of specified classes (s 31). Section 36 specifies a class of visa known as "protection visas" in the following terms:

"36(1)  There is a class of visas to be known as protection visas.

(2)  A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection          obligations under the Refugees Convention as amended by the            Refugees Protocol."

Regulations are authorised to provide that visas or visas of specified classes may only be granted in specified circumstances (s 40).  Regulation 2.04 of the Migration Regulations provides that for the purposes of s 40, and subject to the Regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part.

Schedule 2 sets out various sub-classes of visa.  Subclass 866 is the Protection (Residence) visa.  Clause 866.211 of subclass 866 specifies the following criteria for the grant of such a visa:

"866.211  The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:

(a)      makes specific claims under the Refugees Convention; or

(b)      claims to be a member of the family unit of a person who:

(i)        has made specific claims under the Refugees   Convention; and

(ii)       is an applicant for a Protection (Class AZ) visa."

It is also a criterion that the Minister must be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Convention (866.221).

The Refugees Convention is the Convention Relating to the Status of Refugees 1954 which is to be read with the Protocol Relating to the Status of Refugees 1973.  Article 1 of the Convention, read with the Protocol, defines a refugee as a person who fulfils the following conditions:

"...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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

Section 411 of the Act sets out a class of decisions designated as "RRT-Reviewable Decisions".  The class of decisions so designated includes a decision to refuse to grant a protection visa (s 411(1)(c)).  An application for review of an RRT-Reviewable Decision is made to the Refugee Review Tribunal (s 412(1)).  Where a valid application is made for review of an RRT-Reviewable Decision, the Tribunal is required to review the decision (s 414(1)).  The Tribunal may, for the purposes of the review, exercise all the powers and discretions conferred by the Migration Act 1958 on the person who made the decision (s 415(1)). the Tribunal is expressly empowered to affirm or vary the decision under review, remit it for reconsideration or set it aside and substitute a new decision (s 415(2)).

Part 8 of the Act provides for the review of decisions by the Federal Court and in s 475 sets out a class of decisions known as "judicially-reviewable decisions".  This includes decisions of the Refugee Review Tribunal (s 475(1)(b)).

An application for review by the Federal Court of a judicially-reviewable decision is limited to one or more of the following grounds:

"(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b)that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)       that the decision was not authorised by this Act or the regulations;

(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f)that the decision was induced or affected by fraud or by actual bias;

(g)that there was no evidence or other material to justify the making of the decision."

WELL FOUNDED FEAR OF PERSECUTION
It is difficult to discern in the submissions put on behalf of Woldie anything more than an attack upon the merits of the Tribunal’s decision.  On the assumption that Woldie might be exposed to the dangers of inter-tribal conflict in the Province of Arsi there seems to be little doubt that he could locate himself away from danger by residing in Addis Ababa.  In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (supra), the application of the so called “internal protection” principle to refugee law was accepted. Black CJ (with whom Whitlam J agreed on the question of relocation) said at 268:

“Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country.  The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country.  If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.”

His Honour nevertheless held that it was appropriate for the delegate to ask not merely whether the appellant could relocate to another area of the country of origin but whether he could reasonably be expected to do so.  His Honour said at 270:

“This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person.  In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.”

The factors necessary to consider on the issue of reasonableness of relocation include physical or financial barriers, but extend beyond those. 

The Tribunal addressed the question of relocation really only in the context of tribal conflict in the Arsi region.  It referred to the findings of the first Tribunal that Woldie had lived in Addis Ababa for considerable periods of time in the past and that he could live safely in Addis Ababa upon return at that time or within the foreseeable future.  It expressly referred to the absence of any suggestion of trouble in Addis Ababa.  Addis Ababa is the capital of the Ethiopia.  Accessibility was not really an issue.  The Tribunal was not prepared to find that he was at any risk at all there.  Indeed, it does not seem to have regarded him as being under any risk anywhere in Ethiopia.

The Tribunal was not required to engage in a formulaic posing of the question whether it was reasonable for Woldie to relocate.  It was sufficient that it addressed the relevant issues.  In my opinion it did that. Woldie had chosen to live in Addis Ababa previously and had been able to do so.  In the absence of any suggestion of inaccessibility all relevant factors converged to support the proposition which obviously underpinned the Tribunal’s finding about the possibility of relocation to Addis Ababa namely that it was a reasonable option.

THE TIME OF ASSESSMENT
It is not a matter of any controversy that the question whether an application for refugee status has a well-founded fear of persecution is to be determined at the time at which the determination as to refugee status is made - Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (supra) and Minister for Immigration, Local Government and Ethnic Affairs v Mok (supra).  The Tribunal did not explicitly state that it was assessing the existence of a well-founded fear at the time of its determination.  This was criticised as an error in law.

There is no substance to the criticism of the Tribunal’s decision in this respect.  It repeatedly referred to the position of Woldie in the present tense.  It had regard to material supplied to it since the time of the first Tribunal hearing.  Its reasons for decision did not require an explicit and formulaic recitation  of the proposition that the time at which refugee status is determined is the time at which the Tribunal makes its decision.  It is evident from its reasons that it has addressed the substantive question as at the  time of its decision and that there is no basis for complaint in this respect. 

For the above reasons this application must be dismissed with costs.

I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice French

Associate:

Dated:     26 November 1997

Counsel for the Applicant:	Mr Goldfinch
Solicitor for the Applicant:	Goldfinch & Co.
Counsel for the Respondent:	Mr P. Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 May 1997
Date of Judgment:	26 November 1997