Yakubu v Minister for Immigration and Multicultural Affairs
[2001] FCA 1028
•1 AUGUST 2001
FEDERAL COURT OF AUSTRALIA
Yakubu v Minister for Immigration & Multicultural Affairs [2001] FCA 1028
MIGRATION – protection visa – review of decision of Refugee Review Tribunal refusing visa – applicant a citizen of Liberia and of Krahn ethnicity – whether Tribunal failed to take into account relevant considerations – whether Tribunal failed to consider evidence provided by applicant – whether Tribunal required to consider possibility of error in its findings – whether Tribunal erred by using the expression “differential risk”
Migration Act 1958, s 476(1)
Migration Regulations 1994, Schedule 2, clause 866.221
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 discussed
Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 referred
Craig v The State of South Australia (1995) 184 CLR 163 referred
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 referred
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 followed
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 followed
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 followed
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 175 ALR 585 referredNew Encyclopaedia Britannica (15th ed, vol 7)
Encyclopaedia Britannica at Article “Liberia”HUSEIN YAKUBU v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 153 of 1999KENNY J
1 AUGUST 2001
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 153 OF 1999
BETWEEN:
HUSEIN YAKUBU
ApplicantAND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RespondentJUDGE:
KENNY J
DATE OF ORDER:
1 AUGUST 2001
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant 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
VICTORIA DISTRICT REGISTRY
V 153 OF 1999
BETWEEN:
HUSEIN YAKUBU
ApplicantAND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
KENNY J
DATE:
1 AUGUST 2001
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
introduction
This is an application under s 476(1) of the Migration Act 1958 (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 February 1999, affirming a decision of the respondent, by his delegate, not to grant the applicant a protection visa.
background facts
The applicant, Husein Yakubu, was born on 19 April 1970. He claims to be a citizen of the Republic of Liberia, and of Krahn ethnicity.
Mr Husein arrived in Australia on 21 May 1997 and applied for a protection visa on 26 June 1997. On 20 March 1998, a delegate of the respondent refused Mr Yakubu’s protection visa application. On 2 April 1998, Mr Yakubu applied to the Tribunal for review of that decision. He was subsequently notified of the Tribunal’s decision to affirm the delegate’s decision.
The decision under review in this proceeding is the Tribunal’s decision that it is not satisfied that Mr Yakubu has a well-founded fear of being persecuted in Liberia by reason of his Krahn ethnicity and political opinion. The applicant claimed that he had a well-founded fear of persecution if he returned to Liberia because he was a Krahn and because he had been politically active in Liberia in the past.
legislative framework
Section 36 of the Act provides:
(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.
The Refugees Convention is defined in s 5(1) as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol, as the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
Schedule 2 of the Migration Regulations 1994 makes further provision for protection visas. Clause 866.221 of Schedule 2 provides that it is a criterion for a protection visa that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Protection obligations arise in relation to a person who falls within the definition of “refugee” in the Convention as amended by the Protocol (collectively, “the Convention”). A refugee is defined in Article 1A(2) of the Convention as any 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 … .
applicant’s protection visa application
The origins of the Republic of Liberia, the capital of which is Monrovia, is described in the New Encyclopaedia Britannica (15th ed, vol 7) as follows:
The people most closely associated with the founding of the Liberian state were black freedmen (freed slaves) from the New World, known historically as the Americo-Liberians, who migrated to Liberia mostly between 1820 and 1865. … [They] have remained a minority of the country’s population.
…
President William V S Tubman was Liberia’s president from 1944 until his death in 1971. His successor was overthrown in a 1980 coup that terminated more than a century of rule by the True Whig Party and also marked the end of the Americo-Liberians’ long political dominance over the indigenous, inland-dwelling Africans. Economic deterioration was one of the reasons for the coup, but the coup’s victorious People’s Redemption Council could bring no immediate relief. Presidential and legislative elections were held in 1985; General (formerly Master Sergeant) Samuel K Doe, leader of the 1980 coup and subsequent military ruler of Liberia, was elected president and took office in 1986.
Civil war, primarily between the Krahn and the Gio and Mano peoples, broke out in around 1989-1990. Doe, who was a Krahn, was later killed. A multinational West African force attempted to restore order, while the leaders of two rebel groups, Charles Taylor and Prince Johnson, contended for power. Various provisional governments were established during the 1990s. Fighting again broke out in 1996 between soldiers of Roosevelt Johnson’s United Liberation Movement of Liberia for Democracy (ULIMO – J) and forces loyal to Charles Taylor and another individual. The fighting died down in the same year. Roosevelt Johnson’s supporters remain predominantly ethnically Krahn. In 1997 Charles Taylor was elected president of Liberia. See also Encyclopaedia Britannica at Article “Liberia”.
In a statutory declaration dated 25 June 1997 that accompanied his protection visa application, Mr Yakubu stated that he was “a supporter of Roosevelt Johnson and an active member of his political party, the United Liberian Movement (ULM)”. This was apparently a mistaken reference to ULIMO. Mr Yakubu claimed to have been involved in the distribution of literature, in the organisation of demonstrations, and in the writing of anti-government leaflets opposing Charles Taylor and the West African force that supported him. He also stated that he had talked on a “pirate radio station” against Charles Taylor.
According to Mr Yakubu, his political activities had ended when his father and two brothers were abducted and killed in early 1993 because of their political activities. He claimed that he was arrested in Tiehnpo village in April 1996 by Charles Taylor’s force. In his statutory declaration, he said:
During this time I was continually tortured and humiliated by the guards while I was detained. … [The guards] would ask me if I knew where Roosevelt Johnson was and ask me to name other people involved in the [ULIMO]. I was threatened with death every day by the guards and I thought that I was going to die.
He said that he escaped in March 1997 and that:
Some of my people in my village were able to find out where I was being held and were able to bribe the guards to allow me to escape. I left during the night passing through an empty corridor to a back room where I broke a window and climbed outside.
Mr Yakubu claimed that he was subsequently assisted in leaving Liberia and in coming to Australia. He said he flew out of the Ivory Coast from Abidjan, the capital city, on 16 May 1997, using a false passport:
From there I flew directly to Amsterdam. In Amsterdam I was met by another man (I think the man in the passport). He was very secretive. I stayed with him for three days and then he took me by car to the Airport in Brussels. He gave me a ticket to Australia. On 20 May 1997 I boarded a Qantas airlines flight and flew through Rome and Bangkok to Australia.
After the hearing before the Tribunal on 4 November 1998, the Refugee and Immigration Legal Centre Inc (“RILC”) provided written submissions to the Tribunal, by letter dated 16 November 1998, in support of Mr Yakubu’s application. The RILC submitted, in summary, that:
1.The applicant has provided sufficient information about Liberia for the Tribunal to be satisfied that he is a Liberian national.
2.The applicant was also able to provide convincing detail of his Krahn ethnicity and his knowledge of the ULIMO-J faction of Roosevelt Johnson.
3.There is current and compelling information about the continuing persecution of supporters of Roosevelt Johnson and persons of Krahn ethnicity. Despite the official end of the civil war and the supposedly democratic election of Charles Taylor as President in Liberia the situation continues to be unstable as recent events show.
4.The applicant faces particular risks as a young male university educated Krahn with a history of family political involvement. His past persecution gives an indication of possible future risks.
These propositions were elaborated in the balance of the submissions.
reasons for the tribunal’s decision
The Tribunal found that Mr Yakubu had travelled to Australia “on a passport in the name of a Netherlands citizen”, issued in Utrecht on 21 July 1993, and on an air ticket issued in the name of the same person on 7 May 1997.
After reviewing Mr Yakubu’s “Claims and Evidence”, the Tribunal turned to its “Findings and Reasons”. Referring to the Document Examination Unit assessment and to other evidence concerning a Liberian identity card relied on by Mr Yakubu, the Tribunal stated that it was satisfied that “the evidence before it permits the conclusion that [the card] is false”. The Tribunal added:
However, this does not of itself mean that the Applicant is not of Liberian nationality. The Tribunal accepts that acquiring any genuine Liberian papers would have been difficult over the long period of civil war. However, the finding that the identity card is false does go to the matter of the reliability of other evidence given by the Applicant, much of which, as will be indicated below, the Tribunal has been unable to accept.
The Tribunal found that Mr Yakubu’s knowledge of Liberia was “sufficient to support his claim to be Liberian”. It stated:
While his knowledge of Liberia’s political scene was not perfect, it was sufficient not to rule him out of being of Liberian nationality.
While the Tribunal is not confident about some other aspects of the Applicant’s claim, in the absence of any contrary evidence and in view of the level of knowledge that he had about Liberia, it accepts that he is a Liberian national.
Again noting its doubts about Mr Yakubu’s veracity, the Tribunal observed that he “has consistently claimed to be a Krahn and the Tribunal has no contra-indications that he is not”. The Tribunal concluded, however, that it was “not satisfied that simply being of Krahn ethnicity faces a person with a real chance of persecution in Liberia”.
The Tribunal further stated that it was unable to accept Mr Yakubu’s account of his detention and escape “as credible”. Amongst other things, the Tribunal remarked:
The Tribunal also shares the positive state of disbelief of the Minister’s delegate that he should have been questioned about the whereabouts of Roosevelt Johnson at a time when it was well-known the latter was in Accra, and even making broadcasts on Ghana radio. It would be perverse indeed to ask him questions to which the answer was already known.
The Tribunal found his description of his escape to be entirely implausible. It gained the impression at his hearing that he was making up details as he went along.
The Tribunal also rejected Mr Yakubu’s claim “to have been politically active … and yet remain unhindered in his village until 1996”. The Tribunal continued:
Had he been present in that village and had he been engaged in anti-army activities, it is difficult to believe he would have escaped an early detention. While he has argued that it was the forces of Charles Taylor which had reason to target him, the Tribunal finds it implausible that he could have remained free had he actually confronted the West African soldiers in the way he has claimed. The Tribunal does not believe this evidence.
In relation to Mr Yakubu’s claim that his father and two brothers had been killed by the forces of Charles Taylor, the Tribunal found that “it is not possible to draw a firm conclusion from his claim that they are dead, or, if they are, the events which surrounded their deaths. The only fact which is available is that he himself has not seen them since 1992 or 1993”.
The Tribunal commented:
There is no doubt that terrible and violent things have happened in Liberia. However the Tribunal is unable to accept that the Applicant himself has been subjected to this violence. … [A]lthough the Applicant was convincing on his Liberian nationality, he was not at all convincing on his activities and his treatment in Liberia. It has grave doubts as to whether he was even in Liberia at the time claimed. It notes that he travelled from Europe to Australia and it has no evidence other than that given by the Applicant that he was in Europe merely for a few days. According to his original application he has never had a passport and he used the one given to him by his uncle to get from the Ivory Coast to the Netherlands and then to Australia. However, there is no evidence that he used his false passport to exit Africa.
It continued:
The Tribunal has taken a liberal approach in accepting the Applicant to be Liberian and Krahn. It has not been able to be satisfied that the core claims he has made, to have been a politically active person who was imprisoned for a time, escaped and fled his country, are genuine. It has considered whether his claim that his Krahn ethnicity is enough to put him at risk of harm and it has not been satisfied that this is so.
After referring to the treatment of citizens in Liberia, the Tribunal accepted that “the Applicant’s fear of returning to Liberia is genuine and reasonable in that the country is not yet stable and at peace”, although it found that, having considered the evidence as a whole, it was not satisfied that Mr Yakubu is a person to whom Australia has protection obligations under the Convention.
grounds of review
Prior to the decision of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, the applicant relied upon the grounds of review referred to in pars 476(a), (b), (c) and (e) of the Act. The applicant abandoned reliance on s 476(a) (and s 430) after that decision. In Yusuf, the High Court overruled the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469. The High Court held, contrary to Singh, that s 430(1)(c) of the Act merely obliged the Tribunal to set out its findings on those questions of fact which it considered to be material to the decision that it made, and the reasons it had for reaching that decision: 180 ALR at [34] per Gaudron J, [68] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) and [217] per Callinan J.
In written contentions filed prior to the hearing, the applicant submitted that:
The Tribunal had before it but failed to consider at all or give sufficient weight to the following evidence:
2.6.1evidence submitted by the applicant’s advisers in a submission dated 16 November 1998 that persons of Krahn ethnicity whether they be politically opposed to Charles Taylor or not were likely to be persecuted by killing, torture and arbitrary arrest;
2.6.2evidence submitted by the applicant’s advisers in a submission dated 16 November 1998 that persons who were known or perceived supporters of Roosevelt Johnson were likely to be subjected to persecution;
2.6.3evidence provided by the applicant to the RRT by Statutory Declaration declared 25 June 1997 and, orally on 8 November 1998 that the applicant had supported Roosevelt Johnson by distributing literature and broadcasting propaganda on a private radio station.
At the hearing, the applicant’s case was, primarily, that the Tribunal had failed to consider a “raft” of material that was fundamental to his core claim that, simply by reason of being a Krahn, he had a well-founded fear of persecution if he returned to Liberia. That is, he relied primarily on the matter identified in par 2.6.1 and, to a lesser degree, on the matters set out in pars 2.6.2 and 2.6.3. The applicant’s counsel submitted that the Tribunal’s failure amounted to jurisdictional error, because the Tribunal had failed to take into account relevant material.
The respondent’s case was a straightforward one. The respondent submitted, first, that the Tribunal had taken the matters mentioned into account and, secondly, if it had not, then that failure did not constitute jurisdictional error.
was there any reviewable error?
The applicant’s contentions depended on the proposition advanced in Yusuf by McHugh, Gummow and Hayne JJ in a joint judgment (with which Gleeson CJ agreed) that pars 476(1)(b), (c) and (e) permitted an applicant for review under Part 8 of the Act to invoke the common law concept of jurisdictional error.
At common law, the term “jurisdictional error” covers a number of kinds of error, including ignoring relevant material. In Craig v State of South Australia (1995) 184 CLR 163 at 179, the High Court said:
At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. … If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
A failure to take account of a relevant consideration will only constitute a reviewable error if the consideration was one that a decision-maker was bound to take into account. After noting that the limitation in s 476(3) of the Act applied to only s 476(1)(d), the joint judgment in Yusuf stated at [83]-[84]:
[T]here is no reason to give either para (b) or para (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it ‘exceeds its authority or powers’. If that is so, the person who purported to make the decision ‘did not have jurisdiction’ to make the decision he or she made, and the decision ‘was not authorised’ by the Act.
Moreover, in such a case, the decision may well, within the meaning of para (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. … No doubt it must be recognised that the ground stated in para (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which para (e) deals. That having been said, the addition of the qualification to para (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out.
In a separate concurring judgment, the Chief Justice said at [4]:
As McHugh, Gummow and Hayne JJ point out, a failure by the tribunal to deal, in its reasons for decision, with some assertion of fact made by a visa applicant may, or may not, have consequences for judicial review of the tribunal’s decision, either in the Federal Court or in this court, quite apart from whatever consequences it may have under s 476(1)(a).
Although Gaudron J differed from the majority on the outcome of Ms Yusuf’s application, her Honour’s analysis of the relationship of the relevant statutory provisions and the common law concept of “jurisdictional error” was similar to that of the joint judgment. See 180 ALR 1 at [38]-[44].
There may be numerous matters that a decision-maker may take into account (and that are not in law irrelevant), although the decision-maker would not be bound at law to take them into account. The position is best explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39. His Honour said at 39-40:
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … . By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. (Citations omitted).
The relevant consideration ground, as it is understood at common law, does not permit inquiry into the merits of the administrative decision under review. As Mason J added in Peko-Wallsend at 40 - 41:
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned … . (Citations omitted).
It is unnecessary in this case to explore further the nature of the relevant consideration ground.
Whether or not the material concerning the prevalence of persecution of persons of Krahn ethnicity, contained in the letter of 16 November 1998, constituted a relevant consideration in the common law sense, I accept, as the respondent submitted, that the Tribunal took it into account in making its decision. It referred to this material under the heading “Claims and Evidence” – subheading “Krahn ethnicity”, specifically noting that:
The Applicant submitted material on the situation of the Krahn in Liberia, pointing to the support of some of them for previous regimes and to the hostility of other Liberians towards them, particularly the current government.
If there were any doubt as to whether the Tribunal directed its mind to the submission, then that doubt is removed by the Tribunal’s subsequent reference to the applicant’s November 1998 submission which was as follows:
It was submitted that General Samuel Doe, who ruled Liberia from 1980 to 1989, was from the Krahn tribe, a small group which made up only approximately 4% of the Liberian population. During Doe’s period in power, he placed many Krahn in positions of power. According to information supplied by the Applicant’s adviser,
Doe was from a small ethnic group, the Krahn, who live primarily in eastern Liberia near the frontier with Ivory Coast. Krahn make up only four per cent of the Liberian population, yet Doe appointed Krahn in disproportionate numbers to key government posts; a Krahn directed government security forces and the army chief of staff was Krahn. Such blatant favoritism created growing resentment against the Krahn, particularly among the two largest ethnic groups, the Gio and the Mano … .
After the failed coup, Doe and the Krahn dominated army lashed out at Gio and Mano civilians … . Krahn civilians reportedly helped soldiers hunt down non-Krahn in Doe’s home base of Grand Gedah county. No soldiers were ever prosecuted or disciplined … .
As Liberia hurtled into economic disarray and intensifying repression, Taylor and [h]is small group of guerillas at first limited their targets to soldiers and government officials, Doe responded with predictable brutality, sending two infantry battalians to Nomba county where they killed, tortured and arrested civilians, targeting Gio and Mano … . Taylor’s forces responded in kind, summarily executing Krahn civilians and widening their attacks to include Mandingos, who had become identified as pro-Krahn … . (“Liberia: an avoidable tragedy” Current History, pp 213-217).
As will be seen, the Tribunal expressly mentioned and set out an important part of the submission in its discussion of the “Claims and Evidence”. Then, under “Findings and Reasons”, the Tribunal expressly referred to this material, and the applicant’s claim that “simply being Krahn meant that he could face a real chance of persecution”. The Tribunal stated:
The Applicant submitted evidence that it was not safe for Krahn to live in Liberia while it was governed by Charles Taylor and while the memories of Doe-inspired and Krahn instigated atrocities [were] still fresh. He claimed that simply being Krahn meant that he could face a real chance of persecution.
The Tribunal accepts the information submitted that many Krahn are reluctant to return to Liberia even though the international community has accepted that the election of 1997 was a reasonably reliable expression of the people’s will. However, it does not accept that all Krahn are at risk of persecution. There are a number of Krahn ministers in the government. While there have been incidents in which Krahn have been attacked, these have been apparently located usually in Monrovia and involve those know[n] to be or suspected of having links with Roosevelt Johnson. As it indicated below, the Tribunal has been unable to accept the Applicant’s claim to have a political profile.
It is plain enough that the Tribunal considered the claim being made as to Krahn ethnicity and the material that the applicant relied on in support of it.
The foregoing discussion also discloses that the Tribunal not only turned its mind to the November 1998 submission, it also took account of the applicant’s further submission that known or perceived supporters of Roosevelt Johnson were likely to be subjected to persecution. Thus, it accepted that there were incidents where Krahn had been attacked, that these attacks were usually in Monrovia, and had involved persons known or suspected of having links with Roosevelt Johnson. It did not accept that Krahn ethnicity alone was sufficient to give rise to a well-founded fear of persecution. Nor did it accept that the applicant had a relevant political profile.
The applicant’s claim that the Tribunal did not take into account evidence that he had supported Roosevelt Johnson by the distribution of literature and in radio broadcasts also fails. Under “Claims and Evidence” – subheading “Political Claims”, the Tribunal specifically referred to the 25 June 1997 Statutory Declaration and to the applicant’s evidence at the hearing. It recorded the applicant’s claim that, during the 1990s, he had distributed literature opposing Charles Taylor and the West African forces and had broadcast on a pirate radio station. Whilst the Tribunal did not specifically refer again to this aspect of his political profile claim, in its “Findings and Reasons”, the Tribunal did discuss the evidence regarding his political profile generally. The Tribunal rejected his claim to have been politically active, “and yet remain unhindered in his village until 1996”. It stated that “although the Applicant was convincing on his Liberian nationality, he was not at all convincing on his activities and his treatment in Liberia”. It found that it was not satisfied that the applicant was a “politically active person who was imprisoned for a time, escaped and fled his country”. There is nothing in the Tribunal’s reasons that supports the proposition that it did not consider the applicant’s claims concerning his distribution of literature and broadcasting on radio. The Tribunal was not required to deal with this material specifically in its “Findings and Evidence”: cf Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 593 per Kirby J and Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [39] per McHugh J.
Questions of the weight and the cogency of evidence are matters for the Tribunal. There is no basis in this case to infer that the Tribunal did not take into account the material placed by the applicant before it.
At the hearing, the applicant did not press strongly a submission that the Tribunal had erred because it had failed to enter into consideration of whether its findings might be wrong. Nonetheless, the submission remained alive. I accept, however, that as the respondent submitted, the Tribunal did not commit any reviewable error in this regard. See Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed) and 255 per Kenny J.
At the conclusion of its reasons, the Tribunal said “it is not satisfied that it has sufficient facts on which to draw a conclusion that the Applicant faces a differential risk for reason of his race or his political opinion”. This was the language that was being used by the Tribunal prior to the decision in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 175 ALR 585. In that case, a majority of the High Court held that the notion of “differential operation” was a distraction from applying the text of the Convention definition of refugee. Although the matter was not raised, I have also given consideration as to whether the use of the expression pointed to a reviewable error in the Tribunal’s approach. I have concluded that, reading its reasons as a whole, the Tribunal was not in fact distracted from the correct inquiry and the questions to which the Convention and the Act give rise.
For the foregoing reasons, there was no reviewable error in the Tribunal’s reasons. The application should be dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate:
Dated: 1 August 2001
Counsel for the Applicant: Mr A Flower appeared pro bono Solicitor for the Applicant: Not represented Counsel for the Respondent: Mr W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 5 July 2001 Date of Judgment: 1 August 2001
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