Eshetu v Minister for Immigration & Multicultural Affairs [1997] FCA 603

1997FCA0603 - Corrigendum

CATCHWORDS

IMMIGRATION - Whether s420 of the Migration Act prescribes procedures to be observed - whether a breach of s420 may be a ground of review - whether a misunderstanding of the legal issue may be an error involving an incorrect interpretation of the applicable law - ambit of the exclusions specified in s476(2) - whether the Tribunal erred in its understanding of Article 1 of the Refugee Convention.

STATUTORY INTERPRETATION - clear provisions required if common law rights abrogated - construction which accords with obligations under international treaty to be favoured - privative clause to be strictly construed - Act to be read as a whole - presumption that Parliament has acted in the public interest - explanatory memorandum.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Adoption of Children Act 1965 (NSW) s46

Judiciary Act 1903 (Cth) s39B

Migration Act 1958 (Cth) ss420, 420(2)(b), 424, 425, 457, 476, 476(1)(a), 476(1)(e), 476(2)(a), 476(2)(b)

Migration Reform Act 1992 (Cth) s166J

A v Veterans’ Review Board (1995) 59 FCR 195

Annetts v McCann (1990) 170 CLR 596

Asrat v Vrachnas (unreported, O'Loughlin J, 23 August 1996)

Associated Provincial Picture Corporation v Wednesbury Corporation [1948] 1 KB 223

Baker v Campbell (1983) 153 CLR 52

Bolton, Re; ex parte Beane (1987) 162 CLR 514

Bouton v Labiche (1994) 33 NSWLR 225

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379

Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1

Collins v Repatriation Commission (1988) 8 AAR 184

Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52

Commissioner of Police v Tanos (1958) 98 CLR 383

Commissioner of Taxation v McCabe (1990) 26 FCR 431

Courtney v Peters (1990) 27 FCR 404

Dai Xing Yao v Minister for Immigration & Ethnic Affairs (unreported, 18 September 1996, Black CJ, Davies and Sundberg JJ)

Dai Xing Yao v Minister for Immigration & Ethnic Affairs (1997) 144 ALR 147

Darling Casino Ltd v NSW Casino Control Authority (1997) 143 ALR 55

de Motte v Minister for Immigration & Ethnic Affairs (unreported

Kumar v Immigration Review Tribunal (1992) 36 FCR 544

Li v Minister for Immigration & Multicultural Affairs (1997) 144 ALR 179

- 2 -

Mahon v Air New Zealand Ltd [1984] AC 808

Minister for Immigration & Ethnic Affairs v Guo Wei Rong (unreported, Brennan CJ, Dawson, Toohey, Gaudron, McHugh & Gummow JJ, 13 June 1997)

Minister for Immigration & Ethnic Affairs v Singh (1997) 142 ALR 191

Minister for Immigration & Ethnic Affairs v Tang Jia Xin (1994) 125 ALR 203

Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Moheedin v Minister for Immigration & Ethnic Affairs (unreported, 17 April 1997, Olney J)

Nguyen v Minister for Immigration & Ethnic Affairs (unreported, Goldberg J, 6 May 1997)

Pash and Repatriation Commission; Re (1988) 8 AAR 184

R v Cain [1985] 1 AC 46

R v District Court of Sydney; Ex parte White (1966) 116 CLR 644

R v War Pensions Entitlement Tribunal; Ex parte Bott (1933) 50 CLR 228

Sarbjit Singh v Minister for Immigration & Ethnic Affairs (unreported, 18 October 1996, Lockhart J)

Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (unreported, 6 May 1997, Lindgren J)

Than Phat Ma v Billings (1996) 142 ALR 158

Velmurugu v Minister for Immigration & Ethnic Affairs (unreported, 23 May 1996, Olney J)

Walsh and Johnson, ex parte; Re Yates (1925) 37 CLR 36

Wannakuwattewa v Minister for Immigration & Ethnic Affairs (unreported, 24 June 1996, North J)

Wentworth v New South Wales Bar Association (1992) 176 CLR 239

Zakinov v Minister for Immigration & Ethnic Affairs (unreported, 26 July 1996, North J)

MOGES ESHETU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

No. NG 129 of 1997

Davies, Burchett & Whitlam JJ

10 July 1997

Sydney
IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No NG 129 of 1997

)

GENERAL DIVISION )

On appeal from a judgment of a judge of the

Federal Court of Australia

BETWEEN: MOGES ESHETU

Appellant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

Coram: Davies, Burchett & Whitlam JJ

Date: 10 July 1997

Place: Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by the trial judge on 31 January 1997 be set aside and in lieu thereof it be ordered that the subject decision bearing the date 31 November 1995 be set aside and that the matter be remitted to the Refugee Review Tribunal to be heard and decided again.

3. The respondent pay the costs of this appeal and of the proceedings below.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DISTRIBUTION

)

NEW SOUTH WALES DISTRICT REGISTRY ) No NG 129 of 1997

)

GENERAL DIVISION )

On appeal from a judgment of a judge of the

Federal Court of Australia

BETWEEN: MOGES ESHETU

Appellant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

Coram: Davies, Burchett & Whitlam JJ.

Date: 10 July 1997

Place: Sydney

REASONS FOR JUDGMENT

Davies J: This appeal from a judgment of a judge of the Court raises issues as to the application of s.420 and s.476 of the Migration Act 1958 (Cth) ("the Act") in relation to a decision of the Refugee Review Tribunal ("the Tribunal"). The learned trial Judge concluded that the Tribunal's decision was so unreasonable that no reasonable tribunal could have arrived at it. Nevertheless, he concluded that relief could not be granted because of the limited grounds of review for which s.476 of the Act provides.

The procedural and review provisions of the Act were substantially amended by the Migration Reform Act 1992 (Cth) which received royal assent on 7 December 1992. The general structure and nature of the new provisions were considered by Black CJ, Davies and Sundberg JJ in Dai Xing Yao v Minister for Immigration & Ethnic Affairs (unreported, 18 September 1996), in which the submission was put that the new provisions did not apply to a case in which the application for refugee status had been lodged before the coming into effect of the amending legislation. The contention that there was an "accrued right" which prevailed notwithstanding the amendment of the legislation was rejected by the Court in part because the legislative amendments were not analogous to an ousting of existing rights and jurisdiction. Rather, the new provisions reinforced the procedural elements of decision-making in appropriate sections of the Act. The provisions with respect to judicial review had been adjusted in that light. In my own reasons for decision in Dai's case, I said:-

"What has occurred is not illustrative of the ousting of jurisdiction. The provisions of the Migration Act have been strengthened with a view to ensuring that an applicant will have fair treatment at the level of primary decision-making and will also have the opportunity of internal review and of further review by the Immigration Review Tribunal or the Refugee Review Tribunal. Both the Immigration Review Tribunal and the Refugee Review Tribunal are required to provide a mechanism of review that is fair, just, economical, informal and quick and both are required to act according to substantial justice in the merits of the case. Statutory rights have been provided in place of, indeed additional to, the rights that previously found their basis in the common law. The provisions with respect to judicial review have been adjusted by Parliament in the light of this framework."

Section 420 of the Act now provides:-

"420. (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case."

Relevant provisions of s.476 of the Act provide:-

"476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any 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;

...

(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;

...

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

(2) The following are not grounds upon which an application may be made under subsection (1):

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

...

but not as including a reference to:

(d) taking an irrelevant consideration into account in the exercise of a power; or

(e) failing to take a relevant consideration into account in the exercise of a power; or

...

(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

The jurisdiction of the Federal Court is limited by these provisions. Section 485 of the Act provides that other laws, such as s.39B of the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), do not apply in relation to judicially-reviewable decisions made under the Act.

In my opinion, s.420 describes procedures with which the Refugee Review Tribunal is bound to comply. A breach of them is a ground of review under s.476(1) of the Act. It is the most general provision, so far as the Refugee Review Tribunal is concerned, of the sections which deal with the procedures to be followed. It specifically provides that the Refugee Review Tribunal is to pursue the objective of providing "a mechanism of review that is fair, just, economical, informal and quick". The section also provides that the Tribunal "must act according to substantial justice and the merits of the case." One of the necessary elements of so acting is the provision of procedures which are fair and just and are directed to ensuring that the application can be decided according to its substantial justice and merits. Of course, the words "act according to substantial justice and the merits of the case" refer to more than matters of procedure. Nevertheless, the procedures must be fair. Otherwise, the Refugee Review Tribunal will not be able to arrive at the justice and merits of the case.

A discussion of the words "substantial justice" in relation to matters of procedure may be seen in cases such as R v War Pensions Entitlement Tribunal; Ex parte Bott (1933) 50 CLR 228 at 249, 256; Courtney v Peters (1990) 27 FCR 404 at 411; Kumar v Immigration Review Tribunal (1992) 36 FCR 544 at 554-5; A v Veterans' Review Board (1995) 59 FCR 195 at 198-200. I respectfully disagree with the view expressed in cases such as Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (unreported, 6 May 1997, Lindgren J) that s.420 does not establish procedures required by the Act to be observed.

This point was made by me in Dai and was also made by Lockhart J in Sarbjit Singh v Minister for Immigration & Ethnic Affairs (unreported, 18 October 1996), where his Honour observed:-

"Section 420 is mandatory in its requirements that the Tribunal in reviewing a decision must act according to substantial justice and the merits of the case (sub-s.(2)) and in directing the Tribunal, in carrying out its functions under the Act, to pursue the objective of providing a review mechanism that is fair, just, economic, informal and quick (s420(1)).

...

If I had been of the contrary view, and found that the Tribunal had acted so unfairly as to deny substantial justice to the applicant, that would in my view be a failure to observe procedures required by the Act for the purposes of s476(1)(a), the procedure being to act according to substantial justice in reviewing a decision."

Those words of his Honour and my own words in Dai were cited by Black CJ, von Doussa, Sundberg & Mansfield JJ in Minister for Immigration & Ethnic Affairs v Singh (1997) 142 ALR 191. Their Honours distinguished observations of Olney J in Velmurugu v Minister for Immigration & Ethnic Affairs (unreported, 23 May 1996) and of North J in Wannakuwattewa v Minister for Immigration & Ethnic Affairs (unreported, 24 June 1996) and Zakinov v Minister for Immigration & Ethnic Affairs (unreported, 26 July 1996) on the ground that those observations were made in cases where the challenge made did not go to the procedures adopted but effectively sought review on the merits. Section 476(1)(a) is of course limited to the procedures adopted.

The principal grounds of review are those provided by s.476(1)(a) which deals with the procedures that are required by the Act to be observed and s.476(1)(e) which deals with the circumstance where 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 found. The procedural elements prescribed by s.420 may be challenged under s.476(1)(a). Moreover, for the purposes of ground 476(1)(e), the "applicable law" will include not only criteria specified in the Act and Migration Regulations but also the substantive elements of the s.420(2)(b) requirement that the Refugee Review Tribunal act in accordance with the substantial justice and merits of the case. If there were a misinterpretation of this provision or an incorrect application of the law, including this provision, to the facts as found, this Court may correct the error.

The phrase "substantial justice and the merits of the case" does not, of course, empower a tribunal to make a decision otherwise than in accordance with law. See Collins v Repatriation Commission (1980) 48 FLR 198. However, that is not to say that the words have no substantive, as distinct from a procedural, effect. For example, in Kumar v Immigration Review Tribunal at 555, Wilcox J referred to Re Pash and Repatriation Commission (1988) 8 AAR 184, a decision where the Administrative Appeals Tribunal used the reference to "substantial justice" to justify declining to assess incapacity in accordance with a non-statutory guide, as the guide underestimated the applicant's degree of incapacity. In Bouton v Labiche (1994) 33 NSWLR 225, Kirby P, Mahoney & Priestley JJA examined the term "substantial justice" in s.46 of the Adoption of Children Act 1965 (NSW). The judgment of Kirby P, in particular, shows that the term has an ambit wider than that of procedure. His Honour said that, in the context of s.46:-

"it must be assumed that something additional was contemplated beyond procedural fairness. ... fraud in obtaining the order may fall within the ambit of what is contrary to substantial justice: see, eg, Middleton v Middleton [1967] P 62 at 66."

Similarly, in the context of s.420 of the Act, the term has an operation wider than the earlier reference to "fair, just" procedure.

In some decisions, a view has been taken that, if an error has been identified which would amount to a breach of the rules of natural justice, if those were applicable, or which involved the making of a decision that was so unreasonable that no reasonable person could have so exercised the power, which is a basic ground of review in judicial review proceedings, then consideration of that error is precluded by s.476(2). The trial judge expressed that view when he said:-

"So zealously does the Australian Parliament desire to implement its United Nations Treaty obligations to assist refugees, that it has enacted legislation specifically to ensure that it is acceptable for a decision on refugee status to be made by the Tribunal which not merely denies natural justice to an applicant but also is so unreasonable that no reasonable decision-maker could ever make it. At least in this Court, although not in the High Court, the grounds of judicial review are narrowly confined."

To the same effect are observations of Drummond J in Than Phat Ma v Billings (1996) 142 ALR 158 at 166, of Sackville J in Dai Xing Yao v Minister for Immigration & Ethnic Affairs (1997) 144 ALR 147 and of Olney J in Moheedin v Minister for Immigration & Ethnic Affairs (unreported, 17 April 1997).

In my opinion, that approach is wrong. The Migration Act has substituted for the rules developed by the common law and the rules incorporated in the ADJR Act rules of its own. Section 420 provides that the mechanism of review shall be "fair, just, economical, informal and quick" and shall be directed to arriving at the "substantial justice and the merits of the case". If the procedures of the Tribunal have not met that prescription, the decision of the Refugee Review Tribunal may be set aside. It matters not that the breach may also have amounted to a breach of the rules of procedural fairness developed by the common law. The matter is to be determined not by the common law but by the words of the statute. A breach of the statute is not saved by s.476(2).

In a task of interpretation such as this, it is to be recalled that ouster clauses must be construed in their context. Apparently conflicting provisions should be reconciled so as to give to each provision its appropriate operation and so that the objectives which the provisions are designed to achieve are given effect. See, eg, Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 per Brennan J at 194-5. The task of reconciling the provisions of this Act is readily achieved as it plainly appears that the new provisions were designed to substitute statutory law for the common law as reflected in s.39B of the Judiciary Act and in the ADJR Act. Therefore, s.420 and the other procedural sections of the Act are given full force and effect by the operation of s.476(1)(a) of the Act whilst s.476(2) excludes the operation of the nominated common law principles. Each provision achieves an appropriate operation without encroaching on the other.

Similarly, although "unreasonableness" in the sense expounded in Associated Provincial Picture Corporation v Wednesbury Corporation [1948] 1 KB 223 is excluded as a ground of review by s.476(2), the fact that a decision is so unreasonable that no reasonable tribunal should have arrived at it does not exclude examination of the decision to see whether an error of law, being an error involving an incorrect interpretation of the applicable law, has occurred.

This interpretation, which gives appropriate effect to all the provisions of the Act, accords with the maxim Ex antecedentibus et consequentibus fit optima interpretatio. Broom's Legal Maxim's, 6th ed., states at 533, when speaking of the interpretation of deeds and other written instruments:-

"It is a true and important role of construction, that the sense and meaning of the parties to any particular instrument should be collected ex antecedentibus et consequentibus; that is to say, every part of it should be brought into action, in order to collect from the whole one uniform and consistent sense, if that may be done (Per Lord Ellenborough, C.J., Barton v. Fitzgerald, 15 East, 541; Shep. Touch. 87; per Hobart, C.J., Winch. 93. See Micklethwait v. Micklethwait, 4 C.B.N.S. 790, 862); or, in other words, the construction must be made upon the entire instrument and not merely upon disjointed parts of it (Lord North v. Bishop of Ely, cited 1 Bulst. 101; and Judgm., Doe d. Meyrick v. Meyrick, 2 Cr. & J. 230; Maitland v. Mackinnon, 1 H. & C. 607); the whole context must be considered, in endeavouring to collect the intention of the parties, although the immediate object of inquiry be the meaning of an isolated clause (Coles v. Hulme, 8 B. & C. 568; Hobart, 275; cited Gale v. Reed, 8 East, 79)."

The interpretation also accords with the presumption that the Parliament has acted in the public interest. As Lord Reid said, in Inland Revenue Commissioners v Hinchy [1960] AC 748 at 768:-

"One is entitled and indeed bound to assume that Parliament intends to act reasonably, and therefore to prefer a reasonable interpretation of a statutory provision if there is any choice."

Like principles were stated by Savigny whose three aids to interpretation are set out in Gray's The Nature and Sources of the Law, 2nd ed., at 178 as follows:-

"First, the consideration of the law as a whole; Second, the consideration of the reasons of the statutes; Third, the excellence of the result reached by a particular interpretation."

The interpretation gives full effect and enforceability to the terms of s.420 and to the object of the amending legislation, which was to set out in statutory form the procedures required, whilst giving to s.476(2) effect in accordance with its terms, namely, to exclude the operation of the common law rules of natural justice and unreasonableness as grounds for review.

It is common for appellate courts and for courts undertaking the task of ascertaining whether or not an error of law occurred to examine decisions not only by considering the words used but also by comparing the result obtained with the undisputed facts of the case. In R v The District Court of Sydney; Ex parte White (1966) 116 CLR 644, the judges examined the reasons of a magistrate to ascertain whether "a wrong legal standard was being applied", per Menzies J at 654. In Commissioner of Taxation v McCabe (1990) 26 FCR 431, in respect of a decision which was inconsistent with a proper application of the law to the evidence which had been given, I said at 437-8:-

"In making this finding, the Tribunal may unconsciously have transposed the question as to what objectively it was reasonable to expect would happen to the predominantly subjective question whether Dr McCabe was entitled to expect a renewal of her contract. ... If that was the way the Tribunal approached the matter, the Tribunal posed the wrong question, for the test is an objective one."

Had the ground of unreasonableness not been available, I may well have found that the Tribunal adopted the wrong approach, for its decision appeared to be consistent only with the application of a subjective rather than an objective test.

I therefore turn to consider whether, in the present case, the Tribunal erred in law, being an error involving an incorrect interpretation of the applicable law, a ground available under s.476(1)(e) of the Act.

Mr Eshetu was a citizen of Ethiopia. He had grown up in Addis Ababa during a time of considerable repression. In the 1970s, two of his brothers had been involved in the Ethiopian Peoples Revolutionary Party and had been imprisoned for a time and tortured. One of his brothers had died in circumstances which were unclear. As a student in secondary school, Mr Eshetu had himself become involved in political matters. In January 1991, he was detained for a week after attempting to lead students from his school on a march through the city.

In May 1991, the then President, President Mengistu, fled Ethiopia. The Ethiopian Peoples' Revolutionary Democratic Front ("the EPRDF") took control. Persecution and repression continued to occur although conditions improved.

The repressive activity extended to the University of Addis Ababa. On 4 January 1993, students and other members of the University marched out of the gates of the University at a time when Boutros Boutros-Ghali, the Secretary-General of the United Nations, was visiting Ethiopia. Government forces fired on the column of marchers. One student was killed and 13 students were injured. A report of the Ethiopian Human Rights Council shows that thereafter the President and two Vice Presidents of the University were dismissed and the University was closed for three months. Forty-two faculty members were dismissed and, on the reopening of the University, 11 students who had been members of the Provisional Student Council were not allowed to register.

A letter from Amnesty International has described the position during these years as follows:-

"Ethiopia in 1991 was a country in transition, and all reports indicate that the early transition months were extremely tense. It is reasonable to assume that many incidents of arrest and ill-treatment were not reported and did not come to the attention of the human rights organisations. In actual fact, Amnesty International's reports from the time indicate that thousands of people were arrested in mid- to late-1991 by the new authorities, and that demonstrations which occurred in Addis Ababa and other towns throughout the country following the EPRDF takeover were forcibly suppressed, leaving several demonstrators dead. Amnesty International notes that many of the detainees were held without being formally charged, again adding credibility to the incident described by Mr Eshetu. Information available from our International Secretariat notes that students were generally seen as potential opponents by the Ethiopian authorities in late 1991. The situation for students seems to have deteriorated since 1993. For more information on our current concerns in Ethiopia, I refer you to our most recent document Ethiopia: Accountability past and present (AFR 25/06/95). The report notes that the transitional period has seen many new abuses of human rights, including detention without charge or trial of often non-violent critics of the government, secret detention and torture of suspected members of opposition groups, "disappearances" and extrajudicial executions."

Mr Eshetu informed the Tribunal that, in October 1991, he commenced studies at the University of Addis Ababa and was elected shortly thereafter to the Student Council. The Student Council met approximately once a week and discussed, inter alia, political matters. One of the concerns of the members of the Council was that, after the takeover by the EPRDF, the Government was a coalition of ethnic groups excluding the Amharas, to whom Mr Eshetu belonged, but dominated, apparently, by Tigrayans. Mr Eshetu said that the Student Council decided to organise a march to the United States Embassy on 5 December 1991, but, on the day before, officers from the EPRDF Army arrested Mr Eshetu and 24 or so others from the University including all but the one member of the Student Council who was suspected to be a Tigrayan. Mr Eshetu said that the students were taken to Maikelawi Prison where they were held for three days, were given no food and were beaten. During his period there he suffered an injury to his foot. After the three days, the students were released and warned against participating in further anti-Government activities.

Mr Eshetu informed the Tribunal that he returned to class for a few days but, about four days after his return, he stayed away for one day to seek medical treatment for his foot. In the evening, some members of the Student Council came to his home, told him that four members of the Council had been arrested and warned him that it was not safe for him to remain in Ethiopia. Mr Eshetu said that he did not return to the University but hid in the home of an elder brother and, after obtaining a false passport, he left Ethiopia on 9 June 1992. He went first to Israel where a sister was working but he could not stay there permanently. He came to Australia in September 1993, where he claimed refugee status.

Mr Eshetu said that, on arriving in Australia, he joined a group of Ethiopians in Australia who were active in promoting human rights in Ethiopia. His evidence as to his involvement in these affairs in Australia was supported by witnesses living in Australia who were called before the Tribunal.

It should be noted that there was nothing inherently improbable about Mr Eshetu's story and that, if he were believed, his evidence provided grounds for the grant of refugee status. I should mention, moreover, that Mr Eshetu's evidence appeared to be the evidence of someone who was speaking from recollection and it included details which a person fabricating a story would have been unlikely to include. The following are just a few samples from the evidence:-

"Because you know, among us if we meet and the peoples tell them, there's the Tigrayans among the 12 students, one of them especially you know disappeared, we couldn't see him ...

One of them disappeared ...

We don't know where. I mean during that time when we captured we didn't see him.

...

Especially we were so angry in the United States actions in that time; it was the USA I mean, not the United Nations, and they were the one that allowed them into the countries and especially during that times, you know, there were so many things and even they start to kill people in the street.

...

... in the middle of the night when the cold does in the corridor, it's very cold, it's very cold and I was in barefoot and I was so sick because of that.

...

And I took off then that day they held some of the students name, even they were not sure who had but they barely escaped and they came to inform me it's better not to come and we discussed how we going to do it and how we going to go out from that country and ---

So you all decided to leave?

Yes, that's no one's - no-one are any intention to go back to that."

The Tribunal rejected Mr Eshetu's evidence, but not on the ground that his demeanour showed him to be a person who was not telling the truth. No comment to that effect was made to the Tribunal. The Tribunal rejected Mr Eshetu's evidence on the ground that the arrest of the members of the Student Council and other students was not reported by or recorded by any human rights agency. Throughout the two days of hearings on 23 February 1995 and 21 August 1995, the Tribunal queried whether events as serious as Mr Eshetu had described them to be had ever occurred, as they had not been reported. Thus, on the first day the Tribunal member said:-

"I find it a little strange that the entire student council from the ... (indistinct) ... University could be detained for four days, that most of them had been and left the country and that four of them would have disappeared and that there would be no mention of this anywhere."

An example of Mr Eshetu's response to such queries was as follows:-

"... it is my prison, my imprisonment three days it is nothing. It's very, very easy things when you compare those things which has happened in Ethiopia."

However, such answers did not satisfy the Tribunal.

Not surprisingly, Mr Eshetu had no evidence to back up his case other than evidence as to his activities in Australia. He had lost contact with his fellow students when he went into hiding.

The events of 5 December 1991 occurred at a time just after the Ethiopian Human Rights Council had been established. The first report of that Council was said to have included complaints from 21 October to 27 November 1991 and the second to have included complaints received from 12 December 1991 to 13 February 1992. There was a possible relevant hiatus between these periods. The Tribunal made an enquiry of the Ethiopian Human Rights Council and the following information was conveyed by telephone:-

"Mr Wolfemariam stated that the Ethiopian Human Rights Council was aware that the Addis Ababa University Student Council was planning a march to the US Embassy, the British, the French and German Embassies in early December 1991.

Mr Wolfemariam stated the Human Rights Council was not aware of any members of the Student Council being detained in connection with the planned march. They did not receive any information on detentions in relation to this incident.

Mr Wolfemariam was asked whether it was possible that the detentions occurred without the Human Rights Council's knowledge. Mr Wolfemariam stated that it was possible that members of the Student Council were detained in December without the Human Rights Council's knowledge.

Mr Wolfemariam was asked what treatment he thought someone who was a member of the Student Council, detained for 3 days and tortured in December 1991, and then released and warned not to participate further in politics, would receive if this was their only involvement in anti-government activities and they returned to Ethiopia now. Mr Wolfemariam stated that this question was very difficult to answer as the Government's policy and attitude towards such activities varies over time. However, Mr Wolfemariam did emphasise that there had been animosity between the Government and the Student Council and this had been reflected in the mass media. Mr Wolfemariam stated that members of the Student Council had been killed and it is unlikely that a member of the 1991 Student Council would be greeted by the Government in a friendly manner."

Amnesty International had no information about the incident but wrote to the Tribunal in the following terms:-

"In the first paragraph of the letter to Mr Kessels (Mr Eshetu's solicitor), it is noted that the Member has serious concerns about Mr Eshetu's claim. This doubt is apparently justified in the statement:

`No mention of the incident was found in the reports prepared by human rights organisations monitoring the situation at the time.'

Amnesty International considers that the absence of information on a human rights violation is never to be taken as an indication that it did not occur. Such an inference is unfortunately frequently argued by Delegates of the Minister in rejecting what are often extremely strong claims. What is relevant when assessing a claim is whether an individual's account is consistent with information available about the country situation at the time; and even then, if there is no information available at all, it is not necessary to draw a conclusion that an applicant's story is not credible unless there is reason to doubt the truthfulness of the allegations. This is in keeping with the guidelines for assessing evidence as recommended by the UNHCR in several documents, notably its Handbook on Procedures and Criteria for Determining Refugee Status. I refer you to Section B of the Handbook, on `Establishing the facts, Principles and methods'. This section emphasises the principle of the benefit of the doubt. I note:

196. ... cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule ... independent research may not, however, always be successful and there may also be statement that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.

197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherence in the special situation in which an applicant for refugee status finds himself.

203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to `prove' every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. If is therefore frequently necessary to give the applicant the benefit of the doubt.

It appears that such guidelines have not been followed in this case. It is furthermore noted below that there is evidence to indicate that students were indeed viewed as potential opponents in late 1991 and that there were arrests of anti-government demonstrators, adding weight to Mr Eshetu's claim."

The Tribunal also made an enquiry of Community Aid Abroad about the matter but nothing was known by that organisation.

The crux of the Tribunal's conclusions was set out in the following paragraphs:-

"I accept that Mr Eshetu has a strong subjective fear of returning to Ethiopia based on his conviction that the current government of Ethiopia is conducting a repressive campaign against its opponents in general and Amharas in particular. However, I find the chance that he will face serious harm amounting to persecution either because he opposes the current government or because he is an Amhara to be remote.

...

I do not accept that Mr Eshetu and another 25 students, including all but one of the members of the Student Council from the University of Addis Ababa, were detained and tortured for three days for planning a demonstration in December 1991.

...

While I acknowledge that not all detentions or other human rights abuses will be mentioned in human rights reports or other published materials, for the reasons set out below, I consider that the detention and torture of 25 students, including all but one of the members of the Student Council in Addis Ababa in December 1991 would have been known to at least some of those monitoring the human rights situation and would have been reported in publications produced by these organisations.

...

I accept that Mr Eshetu opposes the current government of Ethiopia and that he has been participating in discussions at the Ethiopian Association at which the government was criticised and has participated in demonstrations against the government. I also accept that he will continue to oppose the government on return to Ethiopia. However, I do not accept that he faces more than a remote chance of detention or other serious harm amounting to persecution in Ethiopia as a result of his opposition to the current government."(emphasis added)

I join with the trial Judge in thinking that the reasons given by the Tribunal for rejecting Mr Eshetu's claim for refugee status were unsatisfactory. The definition appearing in Article I of the Refugee Convention relevantly reads:-

"... 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 ..." (emphasis added)

The question for the Tribunal was not whether 25 students including 11 members of the Student Council had all been arrested on 5 December 1991 and had all been beaten and tortured for three days. The question for the Tribunal was whether Mr Eshetu had left Ethiopia because of fear of persecution for his political opinions, whether he feared to return to Ethiopia for that reason and whether those fears were well-founded. Neither in the Tribunal's questioning of Mr Eshetu during the hearing nor in the Tribunal's lengthy reasons for decision did the Tribunal seriously enter into the question as to why Mr Eshetu had left Ethiopia, whether he had in fact been a student member of the University, whether he had suffered an injury to his foot and if so in what circumstances and whether he had gone into hiding, and if so why.

In Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Mason CJ, Dawson, Toohey, Gaudron & McHugh JJ expressed the view that, for a fear of persecution to be "well-founded", there must be a real chance that the refugee will be persecuted if he returns to his country of nationality. Each of the judges emphasised that, in assessing this question, emphasis should be placed upon the circumstances as they existed at the time of departure which grounded the applicant's fear of persecution. See Mason CJ at 387, Dawson J at 399, Toohey J at 406, Gaudron J at 415 and McHugh J at 433. In his reasons for judgment at 425, McHugh J set out certain of the passages from the "Handbook on Procedures and Criteria for Determining Refugee Status" which I have set out above in the letter from Amnesty International and, in doing so, impliedly accepted that, in a determination of whether or not the applicant has a "well-founded fear of persecution", it is necessary to concentrate on the applicant's story as to why his fear of persecution developed and whether there is a real chance of such persecution occurring if he were returned to his homeland. The same point was made by Brennan CJ, Dawson, Toohey, Gaudron, McHugh & Gummow JJ when in Minister for Immigration & Ethnic Affairs v Guo (unreported, 13 June 1997) their Honours said:-

"In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not `differentially at risk for a Convention reason.' Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC."

The Tribunal was the decision-maker of fact. However, it seems to me that, by failing to identify when Mr Eshetu's "strong subjective fear" developed and by failing to make findings as to whether that fear developed whilst Mr Eshetu was in Ethiopia and whether it was because of that fear that Mr Eshetu left Ethiopia, the Tribunal failed to deal with crucial issues which the definition required to be examined.

The Tribunal concluded that the detention and torture of 25 students had not been reported and was therefore implausible. The tenor of the Tribunal's examination thereafter concerned the identification of objectively proven facts, that is to say, facts proven otherwise than by Mr Eshetu's evidence. To approach the matter in that way was to apply a wrong test. Fear is a subjective, not an objective, matter. Although, for fear to be well-founded, there must be facts which establish that there is a real chance that the persecution feared would occur, the determination of the issue of "real chance" requires, first of all, an identification of the fear and of the circumstances in which it arose. Yet, the Tribunal made no finding as to why Mr Eshetu had left Ethiopia, as to whether he had been a student at the University of Addis Ababa, whether he had been a member of the Student Council and so on.

In my opinion, the Tribunal erred in its understanding of the issues which the definition poses. I think that the trial Judge would not disagree with this analysis, for his Honour was of the clear view that the decision of the Tribunal was wrong.

I do not suggest that attention may not be given by a tribunal to the objective facts or that an applicant's claim may not be rejected as being inconsistent with objectively known facts. Of course, that may occur. There have been many decisions of Refugee Review Tribunals which have come before the Court where a tribunal has rejected an applicant's story as implausible in the light of known facts. In numerous cases, the Court has declined to interfere, taking the view that the facts are for the decision-maker of fact.

The present, however, is a different type of case. Mr Eshetu gave to the Tribunal a detailed individual story which, at least insofar as it affected him, was not inconsistent with known facts at the relevant time. The Tribunal ought not to have rejected Mr Eshetu's claim without coming to a view, if it could, as to whether Mr Eshetu had been a member of the Student Council as he alleged, whether he had suffered an injury to his leg as he said, whether he had left the University in December 1991 as he said, whether he had hidden in his elder brother's house thereafter and whether he had left Ethiopia because of persecution by the Government's forces. The failure to do so discloses an error of approach due to a misunderstanding of the meaning and operation of the term "well-founded fear".

It follows that the Tribunal's decision involved an error of law, being an error involving an incorrect interpretation of the applicable law.

I would allow the appeal. I would set aside the orders below and, in substitution therefor, I would order that the decision of the Tribunal be set aside and that the matter be remitted to the Refugee Review Tribunal to be heard and decided again. Necessarily, in a case such as this, procedural fairness demands that the matter be considered by a tribunal member who comes to the matter with a fresh mind. However, that is so obvious a proposition, it need not be part of the formal order. I would order that the respondent pay the costs of this appeal and of the proceedings below.

I certify that this and the preceding 21 pages

are a true copy of the reasons for judgment of

the Honourable Justice Davies.

Associate:

Date: 10 July 1997

THE FEDERAL COURT OF AUSTRALIA	)
	)
NEW SOUTH WALES DISTRICT REGISTRY	) NG 129 of 1997
	)
GENERAL DIVISION	)

On appeal from a Judge of the Federal Court of Australia

BETWEEN:

MOGES ESHETU

Applicant

AND:

MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

Respondent

JUDGES:	Davies, Burchett and Whitlam JJ.
PLACE:	Sydney
DATED:	10 July 1997

REASONS FOR JUDGMENT

BURCHETT J

An object of the Migration Reform Act 1992, by s 166J of which the Refugee Review Tribunal was established, was to set in place, as the then Minister for Immigration, Local Government and Ethnic Affairs made clear in the explanatory memorandum that accompanied the Bill (at 84), “a codified set of procedures which will provide greater certainty in the decision-making process”, together with “comprehensive merits review”. Unfortunately, a host of conflicting dicta and decisions shows that the stated aim has not been achieved. The first task of the Court, in the present appeal, is to attempt to clarify authoritatively the meaning of provisions which have given rise to so much uncertainty.

Section 457 of the Migration Act 1958 (into which s 166J became translated) establishes the Refugee Review Tribunal, but important provisions governing its operation are to be found in earlier sections. A central provision is s 420, which reads:

“420. (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case.”

Sections 423 to 429 then relate to the conduct by the Tribunal of a review. Section 423 provides for evidence and arguments to be furnished in writing. Section 424 enables the Tribunal to make a decision without proceeding to oral evidence, as long as the decision is favourable to the applicant. But where the matter cannot be so simply disposed of, s 425 provides:

“425. (1) Where section 424 does not apply, the Tribunal:

(a) must give the applicant an opportunity to appear before it to give evidence; and

(b) may obtain such other evidence as it considers necessary.

(2) Subject to paragraph (1) (a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.”

Section 426 clarifies the applicant’s right to give evidence, and to seek to have the Tribunal obtain oral evidence from others, although (one might think for obvious reasons) the Tribunal is not required to accede. Sections 427 to 429 deal with the obtaining of evidence and the hearing.

There was debate about the effect of s.425, but some things are quite plain. Subsection (1)(a) was intended to ensure that the primary rule of natural justice, audi alteram partem, receives ameasure of recognition. Of course, it would be a very inadequate recognition if the right “to appear ... to give evidence” did not extend to the provision of the evidence of witnesses who might, in some cases, perhaps in many cases, be able to give more significant information in support of the applicant’s case than he could himself. But there are two answers to this problem: the command in s 420 to “act according to substantial justice and the merits of the case” would not permit the Tribunal to ignore available and relevant evidence; and although paragraph (b) of s 425(1) uses the word “may”, it provides a clear instance of the use of that word to confer a power which will often involve an obligation. Once the Tribunal “considers [it] necessary” to obtain evidence, Parliament can hardly have meant that it should nevertheless be free to brush aside that necessity.

I turn from these salient provisions, defining the review on the merits available in the Tribunal, to the provision made by s 476 with respect to the grounds for judicial review by this Court of the Tribunal’s decisions. Section 476 provides:

“476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any 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;

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

(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.

(2) The following are not grounds upon which an application may be made under subsection (1):

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b) an exercise of a personal discretionary power at the direction or behest of another person; and

(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d) taking an irrelevant consideration into account in the exercise of a power; or

(e) failing to take a relevant consideration into account in the exercise of a power; or

(f) an exercise of a discretionary power in bad faith; or

(g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).

(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless;

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

What has caused particular difficulty about this section is the perceived clash between the grounds specified in subs (1) and the denial of the grounds of natural justice and Wednesbury unreasonableness in subs (2), as well as the narrowing (by subss (3) and (4)) of the grounds expressed in subss (1)(d) and (1)(g). One thing which strikes the eye, immediately s 476 is examined, is that natural justice and Wednesbury unreasonableness are stated to be “not grounds upon which an application may be made under subs (1)”; but several other recognised and important grounds generally available in administrative law that are referred to in subs (3), such as “failing to take a relevant consideration into account in the exercise of a power” (only a ground in administrative law where the decision-maker was bound to take that consideration into account), are just stated to be not included within the ground specified in subs (1)(d). Whatever else this may mean, it seems to me that, upon ordinary principles of construction, the grounds referred to in pars (d) to (g) of subs (3) are not excluded from any of the grounds in subs (1) other than par (d) of that subsection.

But what is the effect of the denial that natural justice or Wednesbury unreasonableness is a ground? It is, of course, a commonplace of administrative law that the general grounds which have been established cover overlapping fields of operation. That is to say, it will frequently be found that if the facts of a case establish one ground, the same facts will also make out another. To multiply instances would be tedious, but a clear illustration of the point is provided by the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41. There, in a discussion of the ground of review embraced by the rubric “Failure To Take Into Account a Relevant Consideration”, which commenced at p 39, Mason J made it clear that the ground could be made out in accordance with “both principle and authority”, in some circumstances where “an administrative decision ... has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance”. But he added:

“The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’.”

Plainly, each of these formulations may involve, to use the language of s 476(1)(e), “an incorrect application of the law to the facts as found by the person who made the decision”, insofar as it is the law which determines relevant and irrelevant considerations, and determines that, to be valid, a decision must not be manifestly unreasonable. But should a case occur under this legislation of the kind envisaged by Mason J, would the unavailability of the ground of manifest unreasonableness prevent a court acting on the ground specified in s 476(1)(e) if it appeared that there had been an incorrect interpretation of the law because an irrelevant consideration had been taken into account, or a relevant consideration the decision-maker was bound to take into account had been ignored?

Consistency suggests that, since both natural justice and Wednesbury unreasonableness are dealt with in the one subsection and by the same verbal formula with which that subsection opens, the effect of the subsection upon these grounds must be the same. So, before attempting to answer the question, I turn to the matter of natural justice. The principle of natural justice embraces several related rules, although the expression is often used to refer simply to the primary rule audi alteram partem. A brief statement of the wider meaning is that contained in Butterworths Australian Legal Dictionary, edited by Profs. P. Nygh and P. Butt (1997):

“The right to be given a fair hearing and the opportunity to present one’s case, the right to have a decision made by an unbiased or disinterested decision maker and the right to have that decision based on logically probative evidence .....”

The first aspect of this definition was plainly intended to be given effect by s 425, and the whole of it, in broad terms, by s 420. Breaches of those provisions would, quite literally, fall within the language of s 476(1)(a) and (e) as fundamental procedural breaches, and also as errors of law. In the case of bias, s 476(1)(f) would also be directly engaged. In my opinion, the most straightforward way to understand the legislation, taken as a whole, is to read it as substituting, for a broad conception of natural justice, a series of specific provisions by one or other, or even several, of which each rule of natural justice is given effect, so that a separate ground expressed in the traditional way would be otiose. It is for this reason that s 476(2)(a) removes a breach of the rules (note the word is in the plural) as a separate ground.

There are powerful considerations that provide support for a construction giving full effect to ss 420 and 425 in conjunction with the clear wording of s 476(1), while giving meaning to s 476(2) in the way I have suggested. To treat s 476(2) as doing more than removing the two separate grounds mentioned in it, so as also to restrict any other ground, although expressly made available by s 476(1), by a kind of surgery that would remove from that ground anything capable of being regarded as a breach of natural justice or an exemplification of Wednesbury unreasonableness, would be to give an extended meaning to a privative clause. That would be contrary to principle. Every word of s 476(2) is given full literal effect by the construction I have put on it, and there is no warrant for an expansion of its effect so as to curtail fundamental rights, especially when those rights are expressly protected by the literal terms of other provisions.

If considerations arising out of the structure and effect of the text merely left the issue uncertain, as I do not think they do, decisive weight would have to be given to important rules of construction. In Baker v Campbell (1983) 153 CLR 52 at 116, Deane J said:

“It is a settled rule of construction that general provisions of a statute should only be read as abrogating common law principles or rights to the extent made necessary by express words or necessary intendment.”

And in Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 252, the joint judgment of Deane, Dawson, Toohey and Gaudron JJ states:

“There are certain matters in relation to which legislative provisions will be construed as effecting no more than is strictly required by clear words or as a matter of necessary implication. They include important common law rights, procedural and other safeguards of individual rights and freedoms and the jurisdiction of superior courts.”

These pronouncements apply with particular strength to rules as fundamental as those of natural justice, which have been recognised - as Dixon CJ and Webb J indicated by their reference to Seneca’s Medea in The Commissioner of Police v Tanos (1958) 98 CLR 383 at 395 - for some 2,000 years, and are considered indispensable in both of the main systems of law of the modern world. The effect of what Seneca wrote will be found by those modern readers of Tanos whose Latin is limited in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 71. As regards the civil law system, Professors Brown and Bell in their French Administrative Law (4th ed, 1993) at 217 state, under the heading “Audi alteram partem”:

“The necessity to hear both sides - the right to a hearing or ‘due process’ before a decision is arrived at - is recognized by droit administratif as it is in English administrative law. Clearly all procedural requirements laid down in statutes or regulations must be observed, but also a decision will be annulled whenever the aggrieved party has not been advised in advance of the case he has to meet and given an adequate opportunity of presenting his views.”

A leading modern member of the French Conseil d’Etat, Guy Braibant, in his LE DROIT ADMINISTRATIF FRANÇAIS (2nd ed., 1988) at 221 describes the principle which we call by the name “natural justice” as “a principle which is universally recognised in the world at the present time”. See also my article Administrative Law - The French Comparison (1995) 69 ALJ 977 at 981. In this situation, I think the words of Isaacs J. in Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 93 are peculiarly applicable:

“[T]he full and literal intention will not ordinarily be ascribed to general words where that would conflict with recognized principles that Parliament would be prima facie expected to respect. Something unequivocal must be found, either in the context or the circumstances to overcome the presumption.”

There is a further principle of construction applicable to legislation having an impact on Australia’s treaty obligations. As Foster J pointed out in Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 at 195-196, Australia “has undertaken solemn treaty obligations to afford sanctuary to refugees seeking to escape or avoid persecution on Convention grounds. The relevant sections of the Act are our legislative response to those obligations and, broadly speaking, provide mechanisms for the determination whether the obligations exist in particular cases and for the fulfilment of those obligations where they are found to exist.” It cannot have been the intention, when these international obligations were incurred, that their actual implementation should be devoid of adherence to standards universally accepted, which have been recognised as far back as 2,000 years ago. Nor that administrators should be entitled with impunity to make decisions with respect to the rights guaranteed by treaty which were so unreasonable that no reasonable person could have made them. Therefore, the principle of construction stated by Brennan, Deane and Dawson JJ in Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 also applies:

“We accept the proposition that the courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty.”

This principle was reiterated by Mason CJ and Deane J in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 287-288:

“It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia’s international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.”

(Footnotes omitted.)

There is yet another principle of construction which offers guidance in the present situation. If s 476(2) deprives the Court of jurisdiction to deal with breaches of procedures required by the Act, or with decisions not authorised by the Act, or with errors of law involved in the making of decisions, wherever any of those matters would constitute, but for subs (2), a breach of the rules of natural justice or Wednesbury unreasonableness, then the subsection is truly a privative provision. In relation to such a provision, there is a well recognised rule, which has recently been restated by Gaudron and Gummow JJ in Darling Casino Ltd v New South Wales Casino Control Authority (1997) 143 ALR 55 at 75:

“However, privative clauses, whether in State or Commonwealth legislation, are construed ‘by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied’ (Public Service Association (SA) v Federated Clerks’ Union of Australia (SA Branch) (1991) 173 CLR 132 at 160: 102 ALR 161 at 181 per Dawson and Gaudron JJ).”

In R v Cain [1985] AC 46, the legislation in question expressly provided that “[n]o appeal shall lie” against the making of certain orders. A unanimous House of Lords nevertheless affirmed, in the words of Lord Scarman (at 56):

“In the absence of express indication to the contrary, it would be unthinkable that Parliament could intend to deprive the subject of his right to appeal against a sentence which the court had no power to pass. Further, there are very good, though differing, reasons for excluding an appeal on the merits none of which apply to exclusion of appeal for lack of power to make the order.”

Accordingly, it was held that appeals were only excluded subject to an implication preserving appeals on the ground of excess of the power conferred by Parliament.

Here, each of these rules of construction reinforces the meaning conveyed by the language, considered as disclosing a consistent scheme. Indeed, where Parliament has carefully formulated express rules to replace (and fulfil) the implicit principle of natural justice, it would be an extraordinary construction of the subsequent provision in s 476(2)(a), which actually refers only to the replaced implicit principle, to treat it as throwing out the new statutory baby together with the now unnecessary common law bathwater. It has long been understood that provisions excluding the implicit principle must do so plainly and unequivocally: Annetts v McCann (1990) 170 CLR 596 at 598, citing Commissioner of Police v Tanos (supra). There would have to be a complete reversal of the law’s approach before express statutory rules conferring rights to natural justice could be excluded more easily and by a less certain provision.

In my opinion, it is unnecessary to refer to the explanatory memorandum (previously mentioned) to resolve any ambiguity in respect of the matter under discussion. The language of ss 420 and 425, together with s 476(1), is sufficient to confer enforceable statutory rights equivalent to those provided at common law by the principle of natural justice, and s 476(2)(a) does not take those rights away. However, if an ambiguity should be seen in the juxtaposition of s 476(2) with the other provisions, the explanatory memorandum confirms the legislature’s intention to provide for, rather than to deny, the substance of the rules of natural justice. The memorandum explains, with reference to the provision which became s 476(1)(a), that it -

“is complementary to the new sub-section [the provision which became s 476(2)(a)], which provides that an application for judicial review of a decision may not be made for a breach of the rules of natural justice, or as it is now called, procedural fairness. The Scheme of decision-making under the amendments made in this Bill will set out with greater certainty the procedural requirements to be followed to ensure that applicants are provided with the protection necessary to receive a fair consideration when decisions are made affecting their right to enter or remain in Australia. The procedural requirements under the existing regime have been governed by the common law rules of natural justice and these rules have not provided the certainty needed for effective administration of the migration program. Accordingly, these common law rules will be replaced by a codified set of procedures which will afford the same level [of] protection to individuals but will have the additional advantage of greater certainty in the decision-making process. ..... The Bill provides for an application for review of a decision where procedures such as these are not observed.”

The whole of this note refers to s 476(1)(a), and thus the statement in the final sentence, which picks up the very language of that provision, referring to “procedures” being “not observed”, makes it very clear that the intention was to provide, under this ground at least, for review of a decision which denied natural justice to the applicant in any respect covered by the “codified set of procedures” which were said to “afford the same level [of] protection” as the common law principle.

It is interesting too to note that the explanatory memorandum (at 81) expressly recognised:

“While each ground of review stands separately, they are not mutually exclusive and there may be overlap between some of the grounds”.

Finally, the explanatory memorandum also contains (at 8-9) general statements about the Bill’s provisions for judicial review, including the following:

“In acknowledgment of the special nature of immigration decisions and as a result of the widened availability of merits review the Reform Bill amends the Act to set down reformulated grounds for judicial review. To ensure procedural fairness, procedures for decision making which embody the principles of natural justice have been set out in the Reform Bill .... The specific codified procedures in the Reform Bill, and those to be set out in the Migration Regulations, replace the current uncertain rules with regard to natural justice and statutory criteria for decision-making will clarify the matters which must be considered in making a decision. An applicant will be able to appeal to the Federal Court if the codified procedures and criteria have not been followed by decision-makers but a Court appeal will only be permitted where the appellant has first pursued all merits review rights.”

The intention that the substance of natural justice should be enforceable by review procedures could hardly have been made clearer. That those who formulated the explanatory memorandum seem not to have understood the extent to which the principle of natural justice, as it applies to any given situation, has become a settled and clear set of rules in the modern law, in no way detracts from this point. Nor does the fact that the attempt to express the rules of natural justice, and to provide for their application, has been so demonstrably lacking in reasonable clarity.

However, it has been suggested, as an answer to the impact of the explanatory memorandum, that the Minister not only misunderstood the general law; he also misread his own legislation. (See Li v The Minister (supra, at 196).) The proposition is that the reference to “codified procedures and criteria” does not relate to ss 420, 424 and 425, but to procedural provisions with respect to the earlier decision the subject of the proceeding in the Refugee Review Tribunal. If that be right, Parliament was misled by the statement that an “applicant will be able to appeal to the Federal Court” on such a ground, since the procedures would be inapplicable to a decision of the Tribunal. But all this is to miss the point. What the explanatory memorandum indubitably shows is that Parliament did not intend s 476(2)(a) to exclude an application under s 476(1)(a) on any such basis as that the application referred to “procedures that were required .. to be observed” which actually would have implemented the principle of natural justice. Because those procedures were designed to “replace” the principle of natural justice, the ground of appeal was to be a failure to observe them, not a failure to act in accordance with natural justice. That, the explanatory memorandum clearly shows, was the only effect s 476(2)(a) was intended to have. It was not meant to trespass at all on s 476(1)(a); and therefore, the actual language of ss 420 and 425 being apt to raise a case under s 476(1)(a), there could be nothing in the intended effect of s 476(2)(a) to interfere with such a case. If the explanatory memorandum does indeed reveal a misunderstanding as to the effect of the provisions of the legislation, it should be remembered that such a misunderstanding does not make the law, but only the enactment itself, properly construed: Re Bolton; Ex parte Beane (1987) 162 CLR 514; Minister for Immigration and Ethnic Affairs v Tang Jia Xin (1994) 125 ALR 203at 207.

It is desirable to say something about some of the many conflicting decisions. In Minister for Immigration and Ethnic Affairs v Surjit Singh (Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ, 7 May 1997, unreported), the joint majority judgment of Black CJ, von Doussa, Sundberg and Mansfield JJ reached a conclusion which made it “not necessary for us to decide whether, in a case where the Tribunal’s omission to make inquiries constitutes a failure to act according to substantial justice for the purposes of s 420(2)(b), this amounts to failing to observe procedures required by the Act to be observed for the purposes of s 476(1)(a). Nor is it necessary to determine whether, in such a case, s 476(2) precludes a review by this Court ..... .” However, their Honours did refer to a dictum of Davies J in Dai v Minister for Immigration and Ethnic Affairs (unreported, 18 September 1996), where his Honour said:

“Although s 420(1) specifies only an objective, the Migration Act intends the procedures adopted by the Refugee Review Tribunal will be fair and just. If this has not occurred in the present case, the applicant will be entitled to seek relief under s 476(1) of the Migration Act on the ground that the procedures required by the Migration Act to be observed in connection with the making of the decision have not been observed.”

That view, as their Honours noted, received support from Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs(unreported, 18 October 1996). To the contrary were the decision at first instance in the present case, and certain observations of Drummond J in Thanh Phat Ma v Billings (1996) 142 ALR 158, of Sackville J in Dai v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 147, and of Olney J in Mohideen v Minister for Immigration and Ethnic Affairs(unreported, 17 April 1997). However, although the majority had no need to reach a conclusion, Lee J in his dissenting judgment, suggested that s 420 was concerned with “the steps required to produce substantial justice to an applicant having regard to the particular circumstances”, and that the section could give rise to a ground for review under s 476(1)(a). He considered that “[s]ections 476(2)(a) and (b) are discrete exclusionary provisions, not qualifications upon the content of s 476(1), and he drew attention to the contrast provided by the formulation of subs (2) with that of subss (3) and (4) “which qualify expressly the terms of ss 476(1)(d) and 476(1)(g).” While not finding it necessary for the purposes of the cases with which they had to deal, to adopt the penetrating analysis (if I may respectfully so call it) of Lee J, O’Loughlin J in Asrat v Vrachnas (unreported, 23 August 1996) and Foster J in Li v The Minister(supra) both treated breaches of s 420 as affording grounds of review pursuant to s 476(1). Cf de Motte v Minister for Immigration and Ethnic Affairs (Tamberlin J, unreported, 8 May 1997) at 16-17; Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (Lindgren J, unreported, 6 May 1997) at 47-48; Nguyen Do Vinh v Minister for Immigration and Ethnic Affairs (Goldberg J, unreported, 6 May 1997) at 29-31.

But Drummond J in Thanh Phat Ma v Billings (supra, at 165), having held that ss 420 and 425 were concerned with procedures fulfilling the requirements of natural justice, concluded (at 166) that s 476(2)(a) prevented correction of a failure of the Tribunal to comply with s 420, so that Parliament had provided an obligation “without any remedy” for its breach. This is a view which was accepted by Olney J in Mohideen. In Dai v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 147, Sackville J discussed the decision in Thanh Phat Ma v Billings at some length. His Honour concluded (at 154):

“In my view, it is not open to the applicant to seek relief under either s 476(1)(a) or s 476(1)(e) of the Migration Act on the grounds pressed on his behalf by Mr Clarke. Those grounds amount to claims that the RRT breached the rules of natural justice. Section 476(2)(a) of the Migration Act prevents the court granting the relief sought by the applicant. His application must therefore be dismissed.”

With respect, I cannot agree with this conclusion. It was reached without any detailed analysis of the provisions, or any advertence to the principles of construction to which I have referred. Indeed, it reverses those principles, giving a provision which would deprive the individual of fundamental rights protecting him against arbitrary executive action a wider operation than that provision actually expresses. For s 476(2)(a) simply says that a breach of natural justice is not a ground under s 476(1). The passage quoted would go further, and deny a ground that is specified in s 476(1) any effect if it happens to overlap with an aspect of the principle of natural justice.

Turning now to the particular grounds for judicial review of the decision in this case, upon which the appeal is based, I find myself in complete agreement with Davies J. There are, however, some further comments which I think should be made. In a lengthy set of reasons, in which numerous matters that might form the foundation of relevant fears find mention, there is no statement of the Tribunal’s understanding of its task, no analysis of how the Convention relating to the Status of Refugees might apply to the appellant, either as a member of a particular social group or for reasons of race (it being accepted that he belonged to a minority group within Ethiopia known as the Amharas), or by reason of political opinion (it being accepted that he was opposed to the Government), and no analysis of what the Tribunal understood by a “well-founded fear” in the context of the facts which it did find established, involving numerous breaches of human rights (including killings) in which Amhara ethnicity, student status and anti-Government political beliefs were enmeshed. The Tribunal’s reasons accept “that Mr Eshetu has a strong subjective fear of returning to Ethiopia based on his conviction that the current Government of Ethiopia is conducting a repressive campaign against its opponents in general and Amharas in particular.” But the reasons continue: “However I find the chance that he will face serious harm amounting to persecution either because he opposes the current Government or because he is an Amhara to be remote.”

Repeatedly, through the reasons, this word “remote” appears. Statements are made such as:

“From the evidence before the Tribunal it is clear that Ethiopia still has some way to go before a stable democratic system which adequately protects human rights is established. It is also clear that some of those who oppose the government [the Tribunal accepted that Mr Eshetu opposed the government and would continue to do so] are at risk of detention and other forms of serious harm in Ethiopia. However, the evidence does not, in my view, indicate that there is widespread or systematic persecution of government critics or opponents in Addis Ababa such that people who are not prominent members of political organisations or involved with organisations which advocate or are believed to advocate violence, would face more than a remote chance of persecution.”

It will be observed that in this statement an exception is made of those who are “believed to advocate violence”. Clearly, it is the belief held by others which is relevant, and prejudice against students or Amharas may count. Yet the assertion that persons not believed to be associated with violent organisations may not be at risk is repeated at numerous points in the reasons, without any analysis of how this exception might affect the appellant. Of course, a risk of harm from a number of causes may be remote as to each of them, but, when all are taken into account, may be sufficient to enable a fear of that harm to be described as “well-founded”. On the face of the Tribunal’s reasons, this was not appreciated. Separate statements were made that the Tribunal found “the chance that Mr Eshetu would face serious harm amounting to persecution on return to Ethiopia as a result of his political opinion to be remote”, and that the Tribunal considered “Mr Eshetu faces no more than a remote chance of being persecuted because of his Amharic ethnicity”.

This approach also seems to me to be contrary to what was said by the High Court in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (as yet unreported, 13 June 1997), where the joint judgment of Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ states:

“A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan [Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389] shows a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate.”

The same judgment pointed out that “to use the real chance test as a substitute for the Convention term ‘well-founded fear’ is to invite error”; and it was found in that case that “the Tribunal and the Federal Court [had] used the term ‘real chance’ not as epexegetic of ‘well-founded’, but as a replacement or substitution for it.” In my opinion, the Tribunal in the present case has similarly used the word “remote”, its understanding of which it never explained, as a substitution for considering the statutory test, “well-founded”. That was an error of law.

I agree with Davies J that the appeal should be allowed with costs.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett

Associate:

Dated: 10 July 1997

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA	)
	)
NEW SOUTH WALES DISTRICT REGISTRY	) No. 129 of 1997
	)
GENERAL DIVISION	)

On appeal from a Judge of the Federal Court of Australia

BETWEEN:

MOGES ESHETU

Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

ROSLYN SMIDT

MEMBER REFUGEE REVIEW TRIBUNAL

Respondents

CORAM:	Davies, Burchett, Whitlam JJ
PLACE:	Sydney
DATED:	10 July 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

IN THE FEDERAL COURT OF AUSTRALIA	)
	)
NEW SOUTH WALES DISTRICT REGISTRY	) No. 129 of 1997
	)
GENERAL DIVISION	)

On appeal from a Judge of the Federal Court of Australia

BETWEEN:

MOGES ESHETU

Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

ROSLYN SMIDT

MEMBER REFUGEE REVIEW TRIBUNAL

Respondents

CORAM:	Davies, Burchett, Whitlam JJ
PLACE:	Sydney
DATED:	10 July 1997

REASONS FOR JUDGMENT

WHITLAM J

Introduction

The appellant, Moges Eshetu, was born on 29 May 1973 in Ethiopia. He left that country on 9 June 1992. Mr Eshetu arrived in Australia on 8 September 1993. Four weeks later, on 6 October 1993, he lodged an application for refugee status.

Ultimately, on 30 November 1995 the Refugee Review Tribunal (“the Tribunal”), constituted by the second respondent, decided that Mr Eshetu was not a refugee under the Refugees Convention as amended by the Refugees Protocol. Mr Eshetu then applied for judicial review of the Tribunal’s decision. Hill J dismissed his application: Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474. This is an appeal from that judgment.

Although Hill J held that Mr Eshetu had not made out a case for setting aside the Tribunal’s decision on any of the grounds in s 476 of the Migration Act (“the Act”), his Honour described (at 487) the review by the Tribunal as “flawed”. He said (at 486) that the Tribunal’s finding on the issue that was central to Mr Eshetu’s case “totally lacks logic” and went on to say that “[the] Tribunal’s decision as reached was so unreasonable that no reasonable Tribunal could reach it.” This is damning criticism. Such observations compel a close examination of the Tribunal’s approach to the performance of its review function.

Primary Decision

The decision for review by the Tribunal was made on 4 August 1994 by a delegate of the first respondent (“the Minister”). She summarized Mr Eshetu’s claim and submissions in Section 3 of the decision record:

“3. SUMMARY OF CLAIMS/SUBMISSIONS

Summary of claims made before interview:

3.1.1 The applicant lived with his family in Addis Ababa, the capital of Ethiopia. Two of the applicant's brothers were involved in the Ethiopian People's Revolutionary Party (EPRP). When the applicant was five or six years old, both of his brothers were imprisoned. His brothers often spoke about how they were tortured whilst in prison, and about their hatred for Mengistu.

3.1.2 The applicant developed a deep hatred of the Mengistu government and wanted to help bring it down. He did not support the rebels ‑ the Tigrayan Peoples Liberation Front (TPLF), but he believed in negotiation and thought that anyone who opposed Mengistu must be on the side of the people and of democracy.

3.1.3 In about 1989 when he was in secondary school he became involved in a student movement. He attended mass protests that were organised by year 12 student leaders. About 3000 students participated in these protests which would start at the school.

3.1.4 On one occasion the student protesters were marching to [sic] the next school to another, shouting slogans along the way for the institution of democracy and for the resignation of Mengistu. Before they could reach the next school the soldiers began to break up the crowd. They fired their weapons into the crowd and two students died. The crowd dispersed and the students ran home.

3.1.5 Other marches were planned during 1989 but before the students could leave the school the soldiers came in and stopped them. The soldiers arrested people who they believed to be the leaders of the group. They obtained this information through student spies at the same school. One of those arrested was a close friend of the applicant called Fasil. This friend encouraged the applicant to become more active in the student movement.

3.1.6 Fasil was kept for 15 days in a police training camp in Sandafa. When he was released he told the applicant that he was tortured by the police who tried to obtain information about the others involved.

3.1.7 In 1990, the applicant was in year 12 and Fasil had gone to university. He and others who had been involved in the student movement took over roles as leaders of the student activities. There were about 10 in the group and they met and discussed how to organise the students into conducting anti‑Mengistu activities. They concealed their plans from a well know student spy.

3.1.8 The group prepared handwritten notes attacking the Mengistu regime. They called on Mengistu to resign and to hand over power to a transitional government. They also called for the release of political prisoners. Because they were worried that the rebels were going to enter the city and attack civilians they also advocated a peaceful transition of the government.

3.1.9 The group had received information about the Tigrayan rebels. A defector from the rebels outlined the Tigrayan plan for Ethiopia. They became alarmed at this and changed their focus to support Western, and particularly US, intervention to try to stop the bloodshed and to institute a representative transitional government.

3.1.10 On 7 January 1991 they attempted to march out of the school. Soldiers came with the police and fired bullets into the air and surrounded the school. One of the student spies gave a list of their names to the police and thirty students, including the applicant were arrested. They were taken to Sandafa police training school in a large truck and guarded by police armed with guns. On the way to the camp the soldiers punched and kicked them. At the camp they were placed in what looked like a gaol. The families of those arrested were told that they had been taken for political training.

3.1.11 Every morning they were taken to the compound and forced to exercise as a punishment. The exercises were a form of torture ‑ they were forced to assume difficult and painful positions and then repeat a certain movement for hours on end, and this caused great pain. Anyone who stopped or fell over would be kicked and beaten by the police. This went on for one week.

3.1.12 Sometimes individuals would be taken for interrogation in the main office. The applicant was taken for questioning at least once a day. He was asked questions about who the main activists were and who their contact outside the school was. When he refused to answer be was bashed.

3.1.13 At the end of the week they were all released and warned not to continue their activities. They were told that if they did they would be arrested again and not released. However they returned to school and resumed their anti‑government activities. There was little interference because at this time the TPLF was getting close to the capital and the Mengistu forces were preoccupied with this.

3.1.14 The focus of student activity became trying to infiltrate the military and give it support in its fight against the TPLF. They realised that the rebels would try to break Ethiopia up into ethnic regions and considered this as bad as what Mengistu had been doing to his own people. Their aim was to gain the support of the army, firstly to stop the rebels from entering the capital and then to get rid of Mengistu. They believed that once they had the support of the army they could rely on it in any attempted coup.

3.1.15 They tried to co‑ordinate their efforts with the university students who were already trying to win the support of the military. They contacted the Central Committee in order to get permission to go to the military training camps to be trained to fight. The object of this was to try to build morale so that their people would be in a better bargaining position against the TPLF. They were also concerned to infiltrate the military to try to win support to overthrow Mengistu. The university students had already in two months managed to virtually control the army's paratroops division. However the government decided that no high school students should be allowed to join up since that [sic] it was impossible at that time to train all the students.

3.1.16 In May 1991, when the applicant was still at school, Mengistu fled along with many members of the armed forces. Two days later the TPLF, now known as the Ethiopian People's Revolutionary Democratic Front (EPRDF), moved into the capital. The Tigrayans living in the city celebrated the arrival of the rebels, but the applicant hid at home waiting for what would happen. Whenever he could he went out and met with other students to talk about politics. The streets were full of weapons and snipers and it was dangerous to stay out for long.

3.1.17 The applicant started university on 1 October 1991. He along with other students reformed a group known as the Student Council which had historically been seen as an activist student group. The Student Councils had always existed during the Mengistu era. They were allowed to exist and operate on the basis that their activities must support the government and the government had spies working within the student movement to ensure that they did. Often however the Council would oppose the government on different issues and members of the Student Council often went to goal as a result.

3.1.18 The applicant was elected the freshman representative on the Council. There were 11 other representatives. The EPRDF allowed them to establish a new Student Council as part of their attempt to appear democratic and free thinking.

3.1.19 The Council met once a week to discuss the Transitional Government and how the EPRDF was destroying Ethiopia. They tried to develop a strategy to seek the support of the power‑brokers, such as the United States, to try to get a more equitable division of power between the ethnic groups. They also tried to seek the support of the Oromos who were at this stage fighting with the Tigrayans against the Amharas. They did this by approaching Oromos studying at the university and explaining what was happening and that their people should support them against the Tigrayans. They wanted them to explain to their people that they were being used as tools of the EPRDF.

3.1.20 The Student Council decided that the first strategy was to convince people not to support the EPRDF. The Council tried to organise a student protest march to the US Embassy to call for the replacement of the Transitional Government, which they did not see as representative. They set the date for the march for 5 December, 1991 and put up posters promoting it.

3.1.21 A day before the planned march, uniformed officers of the EPRDF army arrested him and 10 other members of the Student Council and took them to Maikelawi Prison, a detention centre for political prisoners. (The applicant believes the EPRDF learned of his involvement in the Council from Tigrayan students.)

3.1.22 They were placed in a large cell with a concrete floor. They were stripped and kept there for three days without food. During the day they were questioned, beaten, tortured and threatened with being shot.

3.1.23 On the second night they were taken to a long corridor and told that they were going to be executed. They were made to stand on a freezing floor, and after five hours they were taken back to their cell. The applicant suffers from pain in his feet as a result of this incident, and could not walk for a week afterwards.

3.1.24 After three days they were released but told if they participated in any further anti-government activities at the University they would be executed immediately. They were made to sign a document which stated that they would not participate further and that action would be taken against them if they did.

3.1.25 Around 14 December some members of the Student Council visited the applicant at home and told him that four of the Council members had again been arrested. He did not hear about them again.

3.1.26 The applicant did not return to university and decided to leave the country.

3.1.27 In April 1992 his sister was transferred to Israel. The applicant intended to travel to Israel as a dependent of his sister (both his parents having died in 1991), but could not arrange for a passport and visa in time to accompany her.

3.1.28 The applicant believed his name was on a restricted list and that he would have trouble obtaining a passport through official channels. He therefore arranged to obtain a false passport for which he paid 3000 Ethiopian Birr. The applicant did not encounter difficulties in leaving Ethiopia. He departed by plane from Addis Ababa.

3.1.29 His sister had arranged a six‑month visa for him as her dependent through the Israel Embassy in Addis Ababa. It was later extended several times and is currently valid until 28 May 1994. The applicant claims that after this time he cannot stay in Israel unless he converts to Judaism. He decided to travel to Australia after he found out he could not stay in Israel after he turns 21.

3.1.30 The applicant believes that if he were forced to return to Ethiopia he would face persecution including imprisonment, torture and even death. He has heard from his friends that things have become worse in his home country. Of the original twenty‑five or so that were arrested with him on the last occasion at the university, many have been killed or have vanished.

3.1.31 The applicant has been told that at a protest march on 4 January 1993 a number of his friends were killed, and that they were not killed indiscriminately but executed by other armed students in the crowd. He believes that if he had been there at the time he too would have been executed. After this march and the shootings the University was closed for a number of months. He has been told that 25 people died that day, although the official government reports say that only six were killed. After the march a number of people including fellow members of the Student Council disappeared, presumed killed.

3.1.32 The applicant believes that if he returns he will face arrest and imprisonment because of his involvement in the student movement and because of his prior arrests.

3.1.33 The applicant also claimed fear of persecution on the basis of his race.

3.2 Additional claims/clarification from the interview conducted on 17/3/94 are summarised as follows:

Religion

3.2.1 The applicant was asked how he feared persecution on the basis of his Protestant religion (see Q.55 of application). He related his experiences with discrimination in Israel because he was not of the Jewish religion. He confirmed that he did not fear persecution in Ethiopia on the basis of his religion. I advised him of information available to the Department that the Ethiopian National Charter guarantees freedom of religion, and that since coming to power TGE officials have advocated complete freedom of worship. In addition, all major religions are represented in the provisional government.

Race

3.2.2 In relation to the applicant's claims of persecution on the basis of race, I advised him of our information from the US Department of State. This is that the TGE's aim of a decentralised, federal system of government, in contrast to the tradition of strong central government usually led by an Amhara, is arousing concern, particularly among the Amharas. The applicant responded that although Oromos constitute 50% of the population of Ethiopia, and have a representative organisation ‑ the OLF, the TGE has created its own puppet Oromo organisation.

3.2.3 I put to the applicant our advice that the coalition of ethnic‑based insurgencies that took power in Ethiopia in 1991 remained committed to establishing a multiparty democracy by 1994 [Ref: Country Reports on Human Rights Practices for 1992, US Department of State]. The applicant stated that Oromos do not presently participate in the government ‑ they were used by the Tigrayans in the EPRDF and have now been excluded from the council. Now the Tigrayan dominated TGE has no opposition and can do whatever it likes.

3.2.4 The applicant claims racial discrimination exists in employment, that Amharas are dismissed without any reason and their jobs given to Tigrayans. He stated this had happened to his brother who had been working in the mines ministry for twelve years. He claims the Tigrayans are talking revenge on other ethnic groups, particularly on the Amharas.

Political Opinion

3.2.5 The applicant claims membership of a student political association in secondary school, then of the Student Council at Addis Ababa University. The Council was not aligned with any particular political group.

3.2.6 In relation to the applicant’s claims regarding his involvement in student protests during 1991, and his arrests due to this activity in January and December 1991, I put to him advice from Amnesty International regarding political detentions. This was that at the beginning of 1991 there were hundreds of political detainees, including prisoners of conscience, many former government officials and Eritrean combatants. In addition, during the second half of 1991 many former local government officials were arrested together with members of the former ruling parry. The detainees were held in a variety of centres including Maikelawi prison. There were reports of poor conditions in some of the detention centres due to overcrowding and lack of facilities, but not of torture. Detainees were allowed access to relatives, medical treatment and food from their families. I asked the applicant if he had any evidence of his claim that members of the Student Council were arrested and tortured. He stated that by the time Amnesty International check up on such things, everything has been covered up.

3.2.7 The applicant claimed that the new government says that there is democracy in Ethiopia in order to get some economic support from the Arabs, and so they kill systematically. He said they kept the chiefs who were killing and starving people during the seventy [scil: seventeen] years of the previous (Dergue) regime to show the world that they were a democracy and would pursue them justly by talking them to court. He claimed that they operate secretly, and that they cause the disappearance of people, but that they give the impression to the international community that they are innocent and peaceful. He stated that if an Amhara provokes a soldier the soldier will shoot because the only thing on his mind is taking revenge against Amharas. He claimed that they don't know how to administrate, and because of their hatred of Amharas and other tribes they have revenge on their minds. He claimed that innocent people are killed for stealing bread to assuage their hunger.

3.2.8 I asked the applicant what the point of his obtaining a false passport under his own identity was. He stated that one reason was because the names of those involved in student activities are passed to the immigration authorities, and these are then denied passports. The other reason is that names of political activists can be withdrawn by the use of bribes. There are a lot of offices that a passport processing has to pass through, and one of them is comparing a passport applicant’s name with the list of political activists. If your name is not on the list they pass you. He explained that the process of obtaining a passport involved many stages. He used his own name because he wanted to exit as a dependant (of his sister), but he changed his occupation ‑ “student” was replaced by “dependant”. He knew of one officer ‑ whose name was Wenderson ‑ who he could use, and he obtained his passport through this person in three weeks, as opposed to the usual two months, which reflects the fact that he skipped some of the normal processing. The passport he obtained came from the proper authority, but it did not undergo the complete processing that is required. The applicant stated that there was a lot of this (bribery) occurring.

3.2.9 I put to the applicant advice that the Ethiopian National Charter recognises freedom of movement, including the right to foreign travel and emigration. Ethiopian citizens and residents of Ethiopia are required to obtain an exit visa before departing, which is issued in most cases. While there are exceptions in the cases of persons with pending court cases and persons with debts, there are no reports of denial of exit visas for political reasons. The applicant responded that this information was from the Americans, and they have a vested interest in supporting the current regime to hold power. He stated that foreign representatives who go to Ethiopia speak to government representatives; nobody who goes there speaks to different organisations or the people who are victims of the current system.

3.2.10 I asked the applicant the reason for the delay between his imprisonment in 1991 and his departure for Israel in June 1992. He stated there were a lot of problems ‑ getting a passport, visa requirements, etc.

3.2.11 I asked the applicant why he didn't seek refugee status whilst in Israel. He responded that even if you live in Israel for many years, if you ask for so much as a work permit they will deport you. He said the only chance you have is changing your religion or marrying a Jew. He said that the Jewish authorities will deport you without warning; they do not want problems from another country. He said that nobody got refugee status there.

3.2.12 I asked the applicant where he obtained his information about the 4 January 1993 protest march that a number of his friends were killed, that 25 people died during the protest. He said it came from his sister who worked in the (Ethiopian) Embassy in Israel. He is sure the number given in the Amnesty Report is not correct. I put to the applicant US Department of State advice that there were no reports of officially sanctioned political or other extrajudicial killings by TGE security forces or by opposition groups during 1993, but that “the TGE [had] overreacted in containing a demonstration for which the students had not given prior notification, as required by Ethiopian law.” [Ref: Country Reports on Human Rights Practices for 1993, US Department of State]. According to the advice the TGE troops killed at least one student. He responded that it was not the right thing to kill an innocent student protester by bullet, that they could have used tear gas or water. I put to him advice that unofficial accounts by university students, supported by international human rights organisations put the number at about seven [ibid.]. He responded that, under the previous regime, after a killing the corpse disappeared ‑ it was not given to the family of the victim. It was therefore difficult for a family to say if a family member had died. The applicant claims the same thing happened with the 4 January protest ‑ many students disappeared, and there is uncertainty about the exact figure.

3.2.13 I put to the applicant Amnesty International information on the classes of people who have disappeared or been arrested ‑ e.g. former local government officials ‑ and the discharge of professors from their positions at Addis Ababa University for expressing anti‑government views [Refs: Amnesty International Report ‑ 1993, Amnesty International's Urgent Action 147/93, 30.4.93]. The applicant stated that the reason given for their dismissal was their inability to teach. I put to him that there was no mention about the Student Council at Addis Ababa University in any of Amnesty's reports. He responded that those currently on the Student Council were ethnic Tigrayans and government supporters. He stated that the government is gradually removing any opposition to it by replacing people in organisations such as the university administration with their own people.

3.2.14 The applicant claimed that if he returns to Ethiopia he will be put in jail or 'disappeared' like the students after the 4 January protest. He said they were now using different methods to kill, and making it look like an accident. He also referred to an Amnesty report about a number of journalists who had written adversely about the government.

3.2.15 He claimed that the Tigrayans are trying to wipe the Amharas from history, they don't want to fly their flag. He claimed that they destroyed his family.

3.2.16 The applicant said that the source of all this information is the United States and that the Australian government should do its own research. He said that ethnic Tigrayans are coming to Australia seeking refugee status while people of the same ethnic background in Ethiopia are trying to “disappear'“ those of other ethnic background. He claimed that the country belongs to them, that they took everything from the other provinces to the Tigrayan province, and that the key positions are always filled by Tigrayans. He said that during their first term they shared a few positions with the Oromos and others, but now gradually they are taking over everything. He stated that Arabian parliaments had condemned the TGE about the university students, only the Americans supported it. He claimed that EPRD soldiers shot at the students during the university protest. He claimed that the US information was completely wrong. He also stated that in one government department in Ethiopia, 75 persons were expelled and their positions filled by Tigrayan people.

3.2.17 He claimed that since the TGE came to power there now exists ethnic hatred in Ethiopia which had not been present before, and that it is disintegrating the country.

3.2.18 The applicant further clarified the business about his getting his passport. He stated that he used money in order to bypass a particular office which held a list of names of wanted people. He spoke to the person concerned a couple of times and in the third week he gave this person money and was presented with his passport. He also confirmed that he had applied to go to Israel before applying for a passport.

3.2.19 At interview the applicant provided Amnesty International reports (ff100-105) concerning:

· the killing and wounding of student protesters by the Ethiopian security forces at Addis Ababa University on 4 January 1993, when the students staged a demonstration against the UN's involvement in an independence referendum in Eritrea;

· the arrest of Dr A Teferra and detention of other former officials of the Mengistu regime;

· the detention of 18 students on 22.4.93 for demonstrating against the dismissal of 41 university staff and 11 students;

· update on the 4 January incident following the setting up of an official inquiry into it;

· the arrest of 18 journalists, publishers and editors associated with independent, mostly Amharic-language magazines in Addis Ababa, on charges of violating a press law;

· the arrest, on 15 and 16 December 1993, of 5 prominent exiles who were returning to Ethiopia to attend a conference as representative of various opposition political parties.

3.3 Material submitted after interview (ff 110-126) is summarised as follows:

3.3.1 The applicant submitted various material subsequent to the interview as follows:

· Article arguing that the TGE under President Meles Zenawi and the dominance of the Tigrayan People’s Liberation Front (TPLF) is developing into a dictatorship [Africa Report, November/December 1993];

· Article reporting that in September 1993 the TGE government announced a budget in which spending on education would exceed military expenditures for the first time [Africa Report, undated];

· Letter to editor concerning political developments in Ethiopia [The Hartford Courent, Connecticut, date illegible];

· Articles concerning the conference in Addis Ababa convened by Ethiopian opposition groups, and the arrest of 7 opponents of the Ethiopian government belonging to three groups ‑ the Oromo Liberation Front (OLF), the Coalition of Ethiopian Democratic Forces (COEDF) and Mehdin [Washington Post, 22 and 23 Dec. 1993];

· Documents alleging a secret government strategy for paralysing and dismantling the All-Amhara Peoples' Organisation (AAPO) [Forum Pan‑Africa, 16.3.1993];

· Press release criticising the TGE and alleging atrocities committed by security forces and military against “innocent peoples and leaders as well as members of opposition political parties and organisations”. [The Organising Committee, Ethiopian Communities in Australia, 10.1.1994];

· Circulars from EPRP criticising the TGE and alleging military manoeuvres against the EPRP [June and November 1992].”

After setting out the Convention definition of refugee, the delegate then proceeded to assess Mr Eshetu’s claims and submissions against the Convention definition. She dealt with the reason of political opinion in Section 5.1 of the decision record (referring by numbers in parentheses to the claims summarized in Section 3 set out above):

“5 ASSESSMENT

5.1 Political opinion (3.1.1‑3.1.32, 3.2.5-3.2.14, 3.2.18, 3.2.19)

Opposition to previous government

5.1.1 (3.1.1‑3.1.17, 3.2.5‑3.2.6) I accept that the applicant's brothers may have suffered for their political opinions under the previous government of President Mengistu Haile‑Mariam, and that the applicant was also opposed to the Mengistu government and participated in anti‑Mengistu student demonstrations as a secondary school student. I am aware that the former government of President Mengistu was guilty of severe human rights abuses, and I accept that the applicant may have been imprisoned because of his involvement in a protest march in January 1991, and mistreated and interrogated whilst in detention. I give weight to advice that, in May 1991, there were “several political prisoners, including prisoners of conscience...Most had been detained without trial, some for over a decade, and tortured” [Ref: Amnesty International Report - 1992]. However, I give weight to information provided by the applicant ‑ and corroborated by other sources ‑ that the Mengistu regime ceased to exist when it was overthrown by opposition forces in May 1991, and that in its wake a transitional government took power (claims 3.1.16, 3.1.18 and 3.1.19). According to Amnesty International, “in May [1991] ...the government of President Mengistu Haile-Mariam was overthrown by opposition forces... An EPRDF government took power in Addis Ababa...In July the EPRDF government gave way to a broad‑based Transitional Government...“ [ibid], while the US Department of State reported: “The Ethiopian People's Revolutionary Democratic Front (EPRDF) took power in 1991 at the conclusion of a lengthy civil war with the dictatorial regime of Mengistu Haile Mariam and established the Transitional Government of Ethiopia (TGE) [Ref. Country Reports on Human Rights Practices for 1993, Department of State]. I note that the EPRDF‑led government continues to rule Ethiopia following its success in the recent national elections [Ref: “Landslide poll in Ethiopia”, Guardian Weekly, 10 July 1994]. I therefore consider that the applicant would not have any fear of persecution due to his anti‑Mengistu political opinions if he were to return to Ethiopia.

Opposition to current government (3.1.9, 3.1.14‑3.1.32, 3.2.6‑3.2.14, 3.2.12‑14, 3.2.18‑3.2.19)

5.1.2 The applicant also claims persecution due to his opposition to the Transitional Government of Ethiopia (TGE). I accept that the applicant was a member of the Student Council at Addis Ababa University and that he, along with other members of the Council, opposed the TGE. I accept that the Student Council may have organised a protest march for 5 December 1991 to call for the replacement of the TGE. However I do not accept the applicant's claims that a day before the planned march, he and several members of the Council were arrested and taken to Maikelawi Prison where they were held for three days, deprived of food, beaten, tortured and threatened with execution.

5.1.3 The applicant was not able to provide any evidence of his claim that members of the Student Council were arrested. In response to the information I put to him regarding the classes of people who were detained during 1991, and the conditions under which they were imprisoned, he argued that by the time Amnesty International checks up on such things everything has been covered up. However, I find this to be an unsatisfactory and unconvincing explanation for the lack of any evidence of such an incident. In particular, I find it implausible that it could have escaped the attention of Amnesty International. The organisation reported extensively on detentions in Ethiopia during the latter half of 1991. It reported that those detained were former local government officials and members of the former ruling party. In the second half of the year many former local government officials were arrested, together with members of the former ruling party. [Ref: Amnesty International Report 1992]. Amnesty also reported the detention of three leaders of a new political party, the National Democratic Union, in November [ibid]. Furthermore, an Amnesty International delegation visited Ethiopia in December 1991‑ the time of the alleged arrests [ibid]. I consider that this delegation would have obtained information about the incident claimed by the applicant had it in fact occurred. A search of other information sources (DFAT, Reuters and Nexis) also failed to turn up any mention of the alleged arrests.

5.1.4 In regard to the applicant's claims of torture during his alleged imprisonment (3.1.22, 3.1.23), I note that Amnesty International did not report any allegations of torture in respect of those imprisoned during the second half of 1991: “There were reports of poor conditions in some of the detention centres due to overcrowding and lack of facilities. Detainees, however, were allowed access to relatives, medical treatment and food from their families” [Ref: Amnesty International Report ‑1992].

5.1.5 I therefore find the applicants claims unsubstantiated and inconsistent with information available to the Department. I do not accept his allegations that 11 members of the Student Council, including the applicant, were detained for three days in early December 1991, and that four of them were then rearrested around the 14th of December.

5.1.6 The applicant stated that the TGE kills systematically, while claiming there is democracy in Ethiopia in order to get economic support from the Arabs (3.2.7). However I give this claim little weight. According to an article submitted by the applicant, EPRDF forces killed dozens of innocent civilians in the Amhara region on 7 September 1993 when they refused to obey orders to disperse. The article also alleges that the TGE refuses “to arrest and punish OPDO administrators who continue to kill Amhara and non-Oromo civilians in the Oromia region” [Ref: “Ethiopia”, Africa Report, Nov./Dec. 1993]. However I give weight to Amnesty International and US Government advice which indicates that, while government security forces have carried out political killings ‑ as have anti‑government armed forces ‑ such action is not sanctioned by the TGE. In 1992, “there were reports of... extrajudicial executions by government forces”, while “armed opposition groups, including the OLF, were also reported to have carried out deliberate and arbitrary killings... Groups opposed to the government coalition were also responsible for human rights abuses, including torture and deliberate killings of scores of unarmed civilians”. [Ref: Amnesty International Report ‑ 1993]. Amnesty also reported that “inquiries into some of these killings were carried out by the Council of Representatives [which],.... called for clearer guidelines on the use of lethal force by EPRDF soldiers, noting though that they had faced violence from anti‑government demonstrators” [ibid]. The US Department State advised that “there were no reports of officially sanctioned political or other extrajudicial killings by TGE security forces or by opposition groups during 1993. However, there were many unconfirmed reports of sporadic, low‑level fighting between EPRDF forces and various opposition groups in the countryside” [Ref: Country Reports on Human Rights Practices for 1993, US Department or State]. I therefore accept that there is a high level of political violence and killings have been carried out by members of both pro‑government and anti‑government armed militias. However, I do not find that the government sanctioned systematic killing.

5.1.7 The applicant rejected advice that the TGE was committed to a multi‑party democracy (3.2.3). He claimed that the Tigrayan‑dominated TGE has created its own puppet Oromo organisation and bypasses the legitimate representative organisation ‑ the Oromo Liberation Front. He claimed that Oromos do not presently participate in government, that they have been excluded. However, I understand that the OLF withdrew from the ruling coalition rather than being excluded from it, albeit because of the government's poor handling of the 1992 regional elections: 'The OLF withdrew over the Government's handling of the regional elections ‑ which were flawed by numerous irregularities... and the OLF forces took up arms against the Government” [Ref: Country Reports on Human Rights Practices for 1993, US Department of State]. I accept advice that the TGE isintolerant of political opposition: “in the face of opposition [the TGE] showed increasing intolerance of political dissent. Following the departure of the OLF in 1992, the TGE expelled in 1993 four non‑EPRDF parties from the Council of Representatives” [Ref: ibid.]. An article submitted by the applicant argues that “the TGE has set up its own satellite ethnically based political parties in order to squelch real opposition”, whilst acknowledging that “the current opposition groups have little to offer; if anything, most of them have aggravated ethnic animosities” [Ref: Africa Report]. I note US advice that “political activity by opposition parties is minimal, although this reflects the inexperience and disorganisation of opposition parties as much as government efforts to curtail opposition political activity [Ref: Country Reports on Human Rights Practices for 1993, US Department of State]. I also give weight to advice that “the opposition's refusal to participate in Ethiopia's political reorganisation after decades of dictatorship began with its boycott of regional elections two years ago and subsequent withdrawal from the Council of Representatives” [Ref: “Landslide poll in Ethiopia”, Guardian Weekly, July 1994]. I give particular weight to advice that the TGE’s projected 1994 elections for a constituent assembly and a new national government in Ethiopia have taken place and that the elections were reportedly properly conducted: “International observers' judgment that the ballot was generally free and fair appears to have been borne out” [ibid]. The results of the elections indicate that opposition groups can participate in the political process via legitimate means. In Addis Ababa, “where independents mounted a strong challenge ... the EPRDF took only 13 of 23 seats”, whilst “in the regions, where strong opposition parties stood aloof, EPRDF allies carried the day with ease. Thus 173 of 178 seats in Oromo areas went to the Oromo People's Democratic Organisation, the Oromo arm of the EPRDF” [ibid]. On the basis of the foregoing I accept that there is little active opposition to the government but consider that the reason for this is partly the refusal by opposition groups to participate legitimately in the political process, as well as the fact that they are disorganised and ineffective

5.1.8 The applicant claimed that, due to his political actions as a student, his name would have been on a “persons wanted” list. He claimed that, in order to circumvent the vetting of his name against this political blacklist during the passport application process, he had to pay a bribe. However, I give weight to the following advice: “Ethiopian citizens... are required to obtain an exit visa before departing, which is issued in most cases. There are exceptions in the cases of persons with pending court cases and persons with debts; there are no reports of denial of exit visas for political reasons [Ref: Country Practices on Human Rights Practices for 1993, US DepartmentState]. The applicant rejected this advice on the grounds that its source was the United States which has a vested interest in supporting the current regime. I accept that the US has given support to the TGE, as has the United Nations. This, however, has not prevented it from reporting failings of the TGE. I give weight to the fact that the US has openly ‑ often strongly ‑ criticised the TGE in its annual reports on human rights practices [Ref: Country Report on Human Rights Practices for 1992 and 1993, US Department of State]. I therefore give little weight to the applicant's dismissal of this advice on the basis of its source. I have obtained recent advice that, although “every Ethiopian who applies for an exit visa is entitled to one...in practice, the government decides who gets or does not get an exit visa. For instance, it is not easy for former members of the Mengistu regime, members of the armed forces and members of opposition groups to obtain these visas” [Ref: Advice from Immigration and Refugee Board, Ottawa, 11 March 1994]. It is not clear whether this was the situation at the time when the applicant obtained his passport more than two years ago. In any case the applicant does not claim to fall under any of the categories mentioned. I consider that the applicant may have paid a bribe to expedite obtaining his passport, but do not accept that it was to bypass political vetting.

5.1.9 I give little weight to the applicant's claims that he would be arrested and imprisoned if he returned to Ethiopia because of his student activities and his prior arrests. As noted above I do not accept the applicant's claim that he was arrested in December 1991. I consider his alleged earlier arrest, in January 1991, to be irrelevant to this claim because it occurred under a previous government which the present government opposed.

5.1.10 I find the applicant’s fear of persecution for his political opinions to be not well founded.”

The delegate then assessed the claims made on the basis of religion and race. She decided that Mr Eshetu was not a refugee.

Review by the Refugee Review Tribunal

Mr Eshetu was legally represented throughout the review by the Tribunal. His solicitor, Ronald Kessels, promptly prepared on 16 August 1994 an application for review, which he indicated he would be in a position to press after the grant of legal aid.

On 17 February 1995 Mr Kessels gave the Tribunal submissions on behalf of Mr Eshetu, which stated:

“FACTS/ EVIDENCE

1. The applicant's case has been set out in some detail in the original Statutory Declaration submitted with his application for Refugee Status to the Department of Immigration and Ethnic Affairs. In addition, the applicant was interviewed by the case officer with conduct of the matter. At that interview he confirmed the claims set out in the original application and clarified matters therein.

2. Although not evidence, the "summary of claims/submissions" set out in the Decision Record on Application for Refugee Status dated 4 August 1994 adequately states the applicant's case. The applicant has no further claims .

3. In brief the applicant's case can be stated as follows:

· The applicant is of Ethiopian nationality and of the Amhara race. He is a Christian.

· The applicant's childhood, like so many Ethiopians, was marred by the fact that Ethiopia was run by a merciless dictator who committed atrocious human rights abuses. Members of his family suffered persecution because of their opposition to the then President Mengistu Haile‑Mariam. As a result the applicant developed a deep hatred of the then government.

· His feelings led him to become involved in student politics and activities against the then government. This was nurtured and encouraged by a more senior student who had previously been arrested.

· In January 1991 the applicant was arrested, beaten, tortured and interrogated. After one week he was released with a warning.

· The applicant originally supported the TPLF as they were opposed to Mengistu and were trying to overthrow him ‑ an aim similar to the student activists and other opposition groups. After some time, however, the applicant came to the view that the TPLF's agenda was to regionalise Ethiopia and separate it into ethnically base [sic] states. The applicant, and many other student activists, were fundamentally opposed to this.

· The TPLF, now re‑named the EPRDF, with the support of the US Government entered Addis Ababa and seized control of Ethiopia. Tigrea was almost immediately annexed. There were mass arrests and detentions.

· The applicant and others reformed a group known as the "Student Council" which had historically been an active student group and whose members had regularly been arrested and imprisoned under the Mengistu regime for their opposition. Independent evidence of the existence of such a Council appears at page 13 of the Fifth Ethiopian Human Rights Council report which is included herewith as doc 8

· The applicant was the freshman representative on the Council which was constituted by 12 members, all University students. The Council met at least once a week to discuss political issues and the developments of the new Transitional Government of Ethiopia (TGE).

· The Council and its members actively opposed the EPRDF and the TGE. A protest march was organised by the Council and set for 5 December 1991, posters were placed around the University and schools advertising the march

· On 4 December 1991, the applicant along with 10 of the other Council members were arrested by uniformed officers of the EPRDF. The applicant was beaten, interrogated and tortured. One form of torture was a mock execution. After three days they were released and warned not to participate further.

· The applicant was away from University for one week due to injuries received whilst in detention. During that week the other members of the Student Council again began their activities. After four days back at University the applicant took a day off to see the doctor. That night some other members from the Council came to house [sic] to warn him that four of the other members had been re‑arrested and they were not heard of again.

· The applicant did not return to University after that date.

· The applicant fled the country and travelled to Israel as a dependent [sic] of his sister. He has no right of permanent residence there. He did not claim refugee status there as he believed doing so would result in his repatriation to Ethiopia. The applicant arranged to depart Ethiopia through bribery.

· Subsequent to his arrival in Australia, the applicant has learned that other members of the Student Council to which he belonged have "disappeared". (There is mention of arrest and detention of some University students in April 1993 ‑ see Amnesty report doc 2). He believes that he faces a real risk of arrest, detention or disappearance if he is returned to Ethiopia because of his prior connection to this organisation and his prior arrests.

4. In addition to the evidence previously provided in support of his case, the applicant now encloses the following documents:

1. Amnesty International Report 1993

2. Amnesty International Report 1994

3 Amnesty International ‑ Urgent Action ‑ Al Index:AFR 25/07/93

4. The Ethiopian Human Rights Council (EHRCO) ‑ Press Release 12/12/91

5. Second Report of the Ethiopian Human Rights Council ‑ 13/02/92

6. The Ethiopian Human Rights Council ‑ 21/01/93

7. Ethiopian Human Rights Council ‑ Fourth Report ‑ 21/01/93

8. Ethiopian Human Rights Council ‑ Fifth Report ‑ 03/06/93

9. US Department of State ‑ Country Reports on Human Rights Practices for 1992

10. US Department of State ‑ Country Reports on Human Rights Practices for 1993

11. US Department of State ‑ Country Reports on Human Rights Practices for 1994

12. Africa Confidential: Ethiopia ‑ Washington backs a winner ‑ 04/05/90

13. Africa Confidential: Ethiopia ‑ An elusive victory ‑ 11/07/90

14. Africa Confidential: Ethiopia ‑ New party, same president ‑ 23/03/90

15. The New York Times International‑14/05/91

16. The Independent ‑ US urges rebel force to move in ‑ 28/5/91

17 The Tribune [sic] ‑ Ethiopian Rebels Open Fire ‑ 30/05/91

18. Department Foreign & Trade: Outward Cablegram ‑ Media Report ‑ 30/05/91

19. Africa Confidential ‑ Ethiopia: From rebels to rulers ‑ 31/05/91

20. Time Magazine ‑ Ethiopia: Rebels take charge ‑ 10/06/91

21. Inward Cablegram: 13‑0.NA39474

22. Now [sic] African: Ethiopia Honeymoon Over ‑ 12/91

23. The Washington Post ‑ International Observer Team Criticises Ethiopian Elections ‑ 24/06/92

24. All Amhara People’s Organisation: Letter to Congressman Dymally - 17/09/92

25. The Horn of Africa Bulletin: Legal Concern by Amnesty ‑ 4/92

26. European Parliament: Joint Motion for a Resolution ‑08/07/92

27. United Nations: Staff Member Certification ‑ 14/06/93

28. United Nations: Staff Member Appointment ‑ 14/06/93

5. Although it is understood that the RRT is deciding this matter de novo, the delegate's decision forms part of the file before the Member and raises matters adverse to the applicant. To this extent the applicant submits the following in response to those matters.

6. The delegate rejected the application for the following reasons:

(i) she found that, although the applicant was truthful in relation to his membership of the "student council", he was lying when he stated that he and the other 11 members of the Tribunal had been arrested for anti-government activities, detained for three days, denied all food, beaten, tortured and threatened with execution.

The finding that he was lying in this regard was made because the applicant was "unable to provide any evidence of this claim", because no mention was made of it in reports available to the delegate created by Amnesty International and because it appeared implausible that such an incident could have escaped the attention of that body.

Moreover, the delegate held that the applicant's account of his torture was not plausible because Amnesty International did not report any allegations of it in respect of those imprisoned during the second half of 1991.

(ii) The delegate rejected the applicant's contention that opposition activists have been systematically and extrajudicially murdered by the Transitional Government of Ethiopia (TGE) and that they also regularly "vanish" after being arrested. The delegate found as fact that there is "a high level of political violence and killings have been carried out by members of both pro‑government and anti‑government militias" but goes on to dismiss these claims on the basis that "I do not find that the government sanctioned systematic killings."

The question of disappearances was not dealt with at all.

(iii) The delegate gave particular weight to advice that "the TGE's projected 1994 elections for a constituent assembly and a new national government were reported properly conducted" and goes on to hold that although he [sic] accepts that there is little active opposition to the government, this flows primarily from the fact that they refuse to participate legitimately in the political process and that they are disorganised and ineffective.

(iv) Despite having obtained information that "it is not easy for former members of the Mengistu regime, members of the armed forces and members of opposition groups to obtain these visas" the delegate found that the applicant only paid a bribe to expedite the process and not to avoid such vetting because he "does not claim to fall under any of these three categories".

(v) The delegate also found as relevant the fact that "the applicant, like many Amhara, oppose the government's ethnic and regional policies because they represent a more diverse power sharing at the expense of the Amharas, as opposed to the former state of affairs which favoured Amharas."

7. This reasoning is wrong. Had the delegate given proper and meaningful consideration to the applicant's claims and to the available evidence, these conclusions could not have been properly reached. As such, there being no other reasons for rejection, the decision is clearly erroneous. In any event, even if the reasoning is correct, the factual findings are not supported by evidence or are based upon selective evidence against the applicant.

8. The applicant's response to the delegates findings outlined above are as follows:

(i) There is no evidence that the applicant was lying about being arrested or about the fact that, after his release, other members of the Student Council were arrested a second time. In fact, the applicant's evidence with respect to his arrest and subsequent torture is consistent and truthful. It does not appear exaggerated and is in keeping with what is known about the practices of the TGE after they came to power.

All independent evidence (that already submitted and that submitted herewith) suggest that arrests of dissidents, journalists, former regime members, members of opposition parties and tribes continued throughout 1991, 1992, 1993 and 1994. There are numerous Amnesty International reports about such incidents as well as five reports by the Ethiopian Human Rights Council (EHRCO) which was established by the TGE as a watchdog of Human Rights abuses in Ethiopia.. These reports also make abundantly clear the fact that the TGE is not forthcoming in information about such arrests and that it is not knowing how many people are in fact in detention.

This information does not support the ridiculous conclusion drawn by the delegate that the fact that Amnesty International has not reported the incident means that it did not happen. There are countless reasons why the incident may not have come to the attention of Amnesty, suffice it to say this conclusion is insupportable and an error of law.

(ii) There is an abundance of evidence to show that the applicant's contentions about extrajudicial executions and disappearances are accurate. The 1994 Amnesty Report, for example, states "Some government opponents were reputedly killed in circumstances suggesting that they had been the victims of extrajudicial executions." The US State Department Reports attached hereto also outline suspected extrajudicial killings as do the reports of the EHRCO. This evidence is accepted by the delegate but rejected because she finds that the killings were not state sanctioned.

This is clearly an error of law. Persecution will lead to protection under the Convention were [sic] it is carried either by agents of the state or by other groups within the state who operate either with the express or implied sanction of the stateOR in circumstances which the state cannot control.

The level and nature of the executions lead to only two conclusions. Either they are carried out by the state, its agents or others with the implied approval of the state OR they are carried out by others whom the state cannot control. In either case, if the applicant is at risk of persecution in this manner, he is eligible for the protection of the Convention. Whether this persecution is state sanctioned is irrelevant.

(iii) There is evidence that the elections were far from free and fair. Most opposition groups did not run candidates because they were intimidated from doing so. Journalists who wrote articles in support of opposition groups were arrested and detained. Some are still in detention. The delegate's findings that the low involvement in the elections flows from the fact that opposition groups are "disorganised and ineffective" fails to recognise that the COEDF (the opposition Armhara group in exile) is formed from a tribe which has been in power for decades. To suggest thereafter four years in opposition they would still be disorganised is vacuous and implausible.

In addition, when members of the COEDF did go to Ethiopia to discuss national reconciliation and a peaceful return to democracy, they were arrested on the pretext that they were human rights abusers and war criminals. They were detained for lengthy periods and one is still in detention.

Reports of widespread irregularities in respect of the elections hardly support a conclusion that they were free and fair. In any event, even if they were, there remains ample evidence of human rights abuses against opposition groups and their members. In addition, we enclose general submissions relating to the history of the TPLF, EPRDF and TGL [sic].

(iv) The applicant was a member of an opposition group, namely the Student Council, and that this was the reason why he needed to pay bribes in order to ensure departure from the country. This is consistent with the known evidence as stated by the delegate. Her miss‑stating of the facts, by saying that the applicant does make a claim to be a member of an opposition group leads her into serious error.

(v) The final finding by the delegate appears to be that the applicant was a member of a privileged group (namely the Amharas) and that his complaints about the "new wonderfully democratic government" are merely sour grapes and not legitimate concerns. The concept that the new government is involved in some sort of redistribution of wealth amongst the people, ignores the known facts that it is systematically placing Tigreans in all important positions in the bureaucracy and also moving the wealth of the country (ie its manufacturing infrastructure) to the North were the Tigreans hail from.

The suggestion that the EPRDF and TGL [sic] is a democratic institution concerned about the rights of its citizens is dealt with in the additional general submission appearing at the end of this document.

The applicant knows, more than the delegate could ever hope to know, what a dictator Mengistu was. This does not mean, however, that the TGE and in particular the EPRDF should be held up as a shining example of democracy and change simply because their record is better than that of a previous dictator. Whilst there might be evidence of fundamental change in Ethiopia there is also ample evidence of continuing human rights abuses and persecution of opposition groups. The applicant's fears flow from this evidence and from his past experience.

In any event, the motives of the applicant in opposing the EPRDF or the TGE are irrelevant. Whether they were driven by greed, by legitimate concern or by other motivesshould be of no concern to the decision-maker, it is the fact that they exist and are known to the government of the day which gives rise to the claim for protection. The concept that the applicant forfeits his right to recognition as a refugee merely because the delegate believes that his motives in opposing the government are selfish or otherwise illegitimate is clearly erroneous.

9. The applicant was a member of an opposition group. He was arrested detained, tortured and beaten. After this incident others in the group were rearrested and vanished. At that point the applicant went into hiding and eventually fled the country. There is evidence that the others in opposition to the government have and continue to be persecuted solely for such opposition. The applicant is a refugee and is entitled to the protection of the Convention.”

In addition to the documents referred to in paragraph 4 of the above submissions, Mr Kessels also gave the Tribunal a “general submission” of eight pages. This document purported to address the view of the situation in Ethiopia conveyed by the source materials mentioned in the decision record of the Minister’s delegate.

Mr Eshetu appeared before the Tribunal to give evidence on 23 February 1995. The transcript of his evidence comprises thirty-seven pages. He was accompanied by Mr Kessels. Later that day Mr Kessels sent the Tribunal the following further submissions:

“1. At the hearing on 23 February 1995, the Presiding Member raised a number of matters with the applicant in relation to his claims. The applicant responded as best he was able at the time. In addition the applicant now seeks to clarify a number of matters and to make submissions in relation to them.

2. The Member’s questioning went to three significant issues which clearly gave rise to concerns about the applicant's case:

(i) the likelihood or otherwise of students being able to effectively infiltrate the military and influence their opinion,

(ii) his alleged arrest and detention in 1991 and the subsequent re‑arrest of four of the Student Council members some four days later, and

(iii) the manner in which he obtained his passport.

3. In relation to the passport, the difficulty for the member in accepting this part of the claim appears to revolve around why, if the applicant needed to by‑pass the regular procedures for issuance of a passport by paying a bribe, he would have the 'false' passport issued in his own name with his own details.

4. The answer lies in the fact that the applicant’s only real chance of leaving the country was to go to Israel as a 'dependant' of his sister who was working there for the UN. In order for the sister to obtain a visa for the applicant to travel to Israel she naturally used his correct details (false details would have made it impossible to convince the Israeli authorities of the applicant’s relationship to her). Because of the need to ensure that the details on the passport and visa matched, the applicant was obliged to include the correct details.

5. In any event, what is relevant to the applicant’s claims is not so much the fact that he used his own details, but that the passport was obtained through the use of an agent and the payment of bribes and so was not processed in the usual manner.

6. In relation to points (i) and (ii), these are matters that are primarily issues of credibility. There is no written evidence that students attempted to infiltrate the military or that the members of the Student Council including the applicant, were arrested (and in respect of four of them, re‑arrested). The applicant’s credibility, therefore, is essential to any conclusion about whether or not these events in fact occurred.

7. In relation to the infiltration of the military by the students, this matter appears peripheral to the applicant's case. He was not, in fact, one of these students and so his knowledge of the matters is second‑hand. Whether or not the infiltration in fact took place or whether it was successful should not really affect his claims. In any event, the applicant maintains that this was indeed a deliberate policy of the students at the time and he has explained the rationale and reasoning for it.

8. In relation to the arrest and detention of the applicant and ten other members of the Student Council the applicant has provided a comprehensive and clear account of what occurred. He has been questioned in relation to this incident on two occasions (once by DORS and once by the RRT) and has not wavered in his version of this or any other incident. The level of detail he can provide, the fact that he has not obviously attempted to exaggerate his claims or his level of involvement and the fact that there is no evidence that the incident did not occur, should lead to the Tribunal giving the applicant the benefit of the doubt in relation this matter.

9. Whilst it is acknowledged that the event has not been mentioned in any of the evidence presented to the Tribunal it would be an unfortunate precedent for the Tribunal to use such a lack of evidence as a basis for reaching a final conclusion that the event did not in fact occur at all. As the Tribunal acknowledged, there may well be good reasons why the incident was not reported. In this situation, where there is no documentary evidence either for or against a proposition, it is submitted that the Tribunal must assess the credibility of the applicant. If a finding is made that the applicant is generally credible then he/she should be given the benefit of the doubt. This is the very reason for having an oral hearing.

10. It is our submission that the applicant gave his evidence in a forthright and honest manner. There was no suggestion of exaggeration, he did not avoid questions or change his storymid‑flight. He confronted the adverse materials placed before him and tried his best to answer them. In these circumstances the Tribunal should make a finding that the applicant was a credible and reliable witness. If the Tribunal so finds then, it is submitted, this must inevitably lead to a conclusion that the applicant's version of events in relation to the 1991 incident is true and the fact that the incident was not reported is irrelevant.

11. We take this opportunity to remind the Tribunal that there are circumstances relating to the applicant's son which, whilst not relevant to the outcome of his matter, are adversely affecting our client's health. The applicant has requested that the Tribunal consider this application as urgently as possible.”

The second respondent decided to conduct additional research on the subject of the alleged detention of Student Council members in December 1991. An officer of the Tribunal’s research section accordingly spoke by telephone on 14 March 1995 to Melaku Wolfe Mariam, the general secretary of the Ethiopian Human Rights Council (“EHRCO”). She made the following record of her conversation:

“Mr Wolfemariam stated that the Ethiopian Human Rights Council was aware that the Addis Ababa University Student Council was planning a march to the US Embassy, the British, the French and German Embassies in early December 1991.

Mr Wolfemariam was asked whether it was possible that the detentions occurred without the Human Rights Council’s knowledge. Mr Wolfemariam stated that it was possible that members of the Student Council were detained in December 1991 without the Human Rights Council’s knowledge.

Mr Wolfemariam was asked what treatment he thought someone who was a member of the Student Council, detained for 3 days and tortured in December 1991, and then released and warned not to participate further in politics, would receive if this was their only involvement in anti-government activities and they returned to Ethiopia now. Mr Wolfemariam stated that this question was very difficult to answer as the Government’s policy and attitude towards such activities varies over time. However, Mr Wolfemariam did emphasise that there had been animosity between the Government and the Student Council and this had been reflected in the mass media. Mr Wolfemariam stated that members of the Student Council had been killed and it is unlikely that a member of the 1991 Student Council would be greeted by the Government in a friendly manner. ”

Four subsequent faxes to EHRCO from the Tribunal, including a request to confirm the accuracy of the above note, went unanswered.

The same officer also contacted Community Aid Abroad, whose executive director in Melbourne replied on 7 June 1995.

“ In answer to your query about the activities of the Student Council of Addis Ababa University during the second half of 1991. None of our sources has any recollection of an incident around December 1991 (European Calendar).

We are able to confirm there was an incident arising from the University on 26.4.1985 (Ethiopian Calendar). I suggest that you might seek clarification of the exact “translation” of the date 26.4.85 into our European Calendar date. It is much later than 1991.

According to a member of the university staff, this was a demonstration by a group of students who were wishing to indicate that they did not recognise the government which had a few months earlier come to power in Addis, and who were wanting a replacement installed. According to another source, the demonstration was planned, organised and managed by students who were associated with the All Amhara Peoples Organisation and the organisation of the former Minister of Foreign Affairs (Goshu Wolde). This source stated that the issue was opposition to (the proposed) referendum on Eritrean independence.

Another source stated that demonstration seems to have had its roots within a number of members of the teachers association of the time. Generally these teachers have now left the university, and there have not been any recent incidents of demonstrations against the government involving either staff or students.

A small group of students went to the streets to protest. At the time the government required groups to get permission to protest, as it was feared that legitimate protest might be hijacked by elements of the former military. We believe that at this demonstration a number of ex-Derg [sic] soldiers were found to be armed with pistols.

At least seven students were arrested, and then released. We cannot confirm that they were later re-arrested, but believe this was not the case.

All students except one, believed to be named Gashaw, returned to the university and have since continued to study, or have completed their studies. they appear not to have been discriminated against in any way.

We understand that Gashaw went to Kenya.

This demonstration was broadcast on Australian SBS television early January 1993. Some pictures were shown of students who had been arrested.

We have consulted a number of sources about the implications of the return to Ethiopia of any student who may have left because of this incident. In our view the incident is not regarded as particularly serious, as the students were quickly released, were never charged with any offence, and most returned to continue their studies without harassment. We consider it would be quite safe for such person to return to Ethiopia.

Ethiopia currently has an “open door” policy toward anyone wishing to return who is carrying any for [sic] of UNHCR registration, or who might be carrying for instance, some form of Australian refugee documentation.

There are some categories of people who may be at risk if they return to Ethiopia. For instance active members of armed resistance groups such as sections of the Oromo Liberation Front which has declared war on the current government. We would not believe the case as described by you to fall anywhere near such a category.”

In the meantime, in May 1995, Mr Kessels had written to the Tribunal about the death of Mr Eshetu’s brother.

On 9 June 1995 the Deputy Registrar of the Tribunal wrote to Mr Kessels:

“Ms Smidt has asked me to apologise for the delay in finalising Mr Eshetu's case. As you are aware, she had serious concerns about Mr Eshetu's claim that he was a member of the Addis Ababa Student Council, that he and the other ten members of the student council were detained for three days for planning a demonstration and that four members were re‑detained shortly afterwards. No mention of the incident was found in the reports prepared by human rights organisations monitoring the situation at the time.

Following the recent receipt of your post‑hearing submissions, the Tribunal decided that, in fairness to your client, additional investigations into this claim would be conducted. We contacted the Ethiopian Human Rights Council and spoke to Mr Melakku [sic] Wolfemariam, who advised that he was not aware of any such incident. When asked what he thought would be the likely treatment of a student who had been detained in 1991, Mr Wolfemariam stated that it was difficult to say as the government's policies and attitude towards anti-government activities varies over time. However, he stated that there was animosity between students and the government and he did not believe such a person would be greeted by the government in a "friendly fashion”.

The Tribunal asked Mr Wolfemariam for written confirmation of these comments and also for clarification on whether it was possible that the entire student council was detained for three days and several members re‑detained shortly afterwards without the matter coming to their attention. Unfortunately, despite a number of telephone calls and assurances that the response had been sent, we have been unable to obtain anything in writing from Mr Wolfemariam or any further information on this incident.

We also contacted Community Aid Abroad, who have worked in the area for many years and attach a copy of their response.

Please forward any further submissions to reach the Tribunal no later than close of business on Friday 23 June 1995.”

This produced the following reply dated 6 July 1995 from Mr Kessels:

“We refer to your letter of 9 June 1995 and our subsequent telephone discussions in relation to this matter. We confirm that we have now had an opportunity to discuss the contents of your letter and the attachment thereto. Our clients [sic] comments and our submissions are as follows:

In relation to the facsimile from Community Aid Abroad:

1. In the first place, we question the use of this organisation for the purposes of obtaining the type of information requested by the Tribunal. Our understanding is that Community Aid Abroad is a charitable organisation operating in the host country as the "guests" of that country's government for the sole purpose of providing aid. We are somewhat confused as to what weight the Tribunal could safely attach to information provided from an officer of such an organisation who, from the facsimile, appears to have no direct information or knowledge about Ethiopia (in fact he is in Australia) and who has prepared a report based on the alleged information of unknown and unnamed sources. Such third‑hand hearsay could hardly be safely relied upon to reject the applicant. Moreover, one must wonder whether, as guests of the Ethiopian Government with a mandate to provide aid, the organisation could really be considered to be impartial or a proper source of such information. There must be hundreds if not thousands of foreign organisation [sic] operating in Ethiopia for any number of reasons ‑ business, aid, military ‑ would any weight be given to information or opinions given by them ?

2. In any event, only paragraph one of the letter has any relevance to the applicant as the remainder of the document relates to an incident in January 1993 ‑ some seven months after the departure of the applicant from Ethiopia.

3. With respect to the crucial incident (the arrest of the applicant and the rest of the Student Council in December 1991) the facsimile is of no assistance as the author states that none of their sources (unnamed) have any recollection of the incident. This cannot in any way be used to suggest that the incident did not happen. There is no detail of what Community Aid Abroad's level of involvement was at the time, who the "sources" were, what position they held, or what access to information in the country they had. The fact that the author’s so called "sources" have no recollection of the incident is irrelevant. Any use of such information to undermine the credibility of the applicant would lead to a reviewable error.

4. With respect to the rest of the facsimile (relating to the student demonstration in January 1993), it would appear to any competent observer with any knowledge of the situation in Ethiopia that the author has no comprehension of the facts relating to the "not particularly serious incident". In fact the author’s lack of awareness of the true facts in relation to this demonstration is so serious as to cast doubt over everything contained in the facsimile.

5. To start with, the demonstration in fact occurred on 4 January 1993 and was widely reported by both Amnesty International and the Ethiopian Human Rights Council. Copies of their reports of the incident are attached. The description of the incident by Community Aid Abroad as not particularly serious has given us such concern that we intend to raise the matter with their management and with Amnesty International. The applicant has already been to the Sydney offices of Amnesty and shown them the document. They were apparently so appalled that they intend to write to you regarding the matter.

6. Even the "official" Government explanation of the incident acknowledges that at least one student was killed and at least thirteen were wounded. Amnesty reports at least seven dead and over 100 wounded with scores arrested and held "incommunicado". This conflicts somewhat with Community Aid Abroad’s version that seven were arrested and that all students with the exception of one have returned to their studies without further problems. Significantly CAA make no reference to the deaths, injuries or mass arrests.

7. Community Aid Abroad's sources also appear somewhat confused about the reason behind the demonstration ‑ they claim it was "to indicate that they (the students) did not recognise the government which had a few months earlier come to power in Addis". One wonders to what government the sources could be referring as the EPRDF had in fact come to power in mid 1991 ‑some years, not months, before. The demonstration was, in fact, to protest at UN intervention in the referendum to be held on the question of Eritrea's independence ‑as was indicated by another so‑called "source".

8 The applicant has absolutely no confidence in Community Aid Abroad’s assurances of Ethiopia’s “open door” policy. There is no evidence whatsoever of where this assurance came from or that it also guarantees safety to returnees once inside the country. The latest reports from Amnesty International hardly seem to be consistent with Aid’s assurances that everything is fine in Ethiopia.

9. Given the absolutely appalling manner in which Community Aid Abroad dismisses the execution of peaceful demonstrators and the attempt by them to legitimise the actions of the Ethiopian Transitional Government by towing [sic] the party line that "a number of ex‑Derg soldiers were found (in the group) to be armed with pistols" ‑ a report not confirmed in any way by Amnesty or the Human Rights Council‑ we would strongly submit that no weight should be given to the Community Aid Abroad document.

The evidence of Mr Melakku Wolfemariam

10. Mr Wolfemariam of an unstated, unknown position within the Ethiopian Human Rights Council says he was not aware of any incident as described by the applicant. This would hardly seem important. Who is Mr Wolfemariam ? what was he doing when the incident was said to occur ? was he even in Ethiopia ? was it his function at that time to record or acknowledge such incidents ? was he in a position to do so ? Mr Wolfemariam's lack of knowledge about the incident does not prove it did not happen. Indeed, if one million Ethiopians also had no recollection would it be any more evidence that the incident did not occur ?

11. The Ethiopian Human Rights Council came into existence on 10 October 1991(see attached report dated 12 December 1991). Its first report merely noted detentions without providing details. It cannot be assumed, without evidence to the contrary that these reported detentions did not include the Student Council members. No doubt there were many “noteworthy” detentions and human rights abuses. The fact that they are not detailed in the report does not mean that they did not occur.

12. In any event, it is surely significant that Mr Wolfemariam stated that there was animosity between students and the government (which is wholly consistent with the applicant's evidence) and that he did not believe such a person would be "greeted by the government in a 'friendly fashion’”. This view would seem to conflict with the views of Community Aid Abroad who suggest that "it is quite safe for such a person to return to Ethiopia." Given what was said above regarding the information provided by Community Aid Abroad, we would strongly submit that the views of a person working for a human rights body within Ethiopia would be the more reliable source. As such there is evidence supporting the applicant’s contention that as a student he faces persecution upon return.

General Comments

13. The applicant and other members of the Council were arrested in December 1991. This was only six or so months after the EPRDF took power, he gave evidence that the country was in turmoil ‑ as might be expected, that random arrests of senior members of the former regime and other suspected anti-government people were widespread and common ‑ as might also be expected. This is confirmed by numerous reports, including Amnesty and the US State Department. Surely not all of these incidents were recorded or noted.

14. The applicant gave his evidence in a forthright and honest way. His version of the events has been consistent from the time of his original application to the current. Had he have wished to "invent" a story one might imagine that there was ample opportunity for him to have been more "creative", to have exaggerated the length or number of detentions or his abuse. There is no evidence that what the applicant says happened did not in fact happen. The use by the Tribunal of a [sic] apparent lack of material to somehow prove that an applicant is lying would be a dangerous precedent and wholly unacceptable.

15. There are numerous reasons why the incident might not have been reported. The Tribunal would have to dismiss each of these if it was to safely reach a conclusion that the applicant must be lying. Given that the only evidence existing about the incident is that of the applicant himself, the Tribunal is bound to accept that unless there is some reason for it to be satisfied that the applicant is lying. One such reason would be if the Tribunal made a finding that the applicant was not credible. It is respectfully submitted that such a finding is not open to the Tribunal in this case given the completely forthright and honest way the applicant gave his evidence. There is nothing upon which the Tribunal could safely draw a conclusion that the applicant is not credible.”

Matthew Zagor, a refugee/research officer with Amnesty International Australia, sent the Tribunal’s Deputy Registrar a letter dated 11 July 1995 about Mr Eshetu’s case. Mr Zagor commenced:

“Amnesty International has serious concerns about the accuracy of the information provided by the CAA [Community Aid Abroad], about the process which lead to the CAA being identified and approached for human rights information, about the way the material was presented to the applicant for comment, and about the apparent assumption by the Member that the absence of a report on a particular incident throws doubt on the credibility of an asylum-seeker’s claim. This touches on broader issues in relation to research methods, evidence, and applicant relations which Amnesty International has already discussed with the Principal Member. Amnesty International will also be approaching CAA directly to discuss these issues.”

Mr Zagor then advanced his own views under seven headings: “The information provided by CAA”, “The reliability of Amnesty International’s information”, “CAA Assessment of an Asylum-Seeker’s Claim”, “Evidence and Research: RRT assessment of information and UNHCR Guidelines”, “Ethiopia in 1991”, “Clarification of the Process”, “RRT Client Relations”. Mercifully for present purposes, it is only necessary to set out what he said under the first two headings:

“The information provided by CAA

Community Aid Abroad were approached by the Tribunal presumably to comment on the activities of students during the second half of 1991. Jeremy Hobbs, Executive Director at CAA, notes in the facsimile that "none of our sources has any recollection of an incident around December 1991”. Mr Hobbs continues, however, to describe an incident whichoccurred on 26.4.1985 (Ethiopian Calendar), approximately January 1993. He refers to a small student protest arising from the Addis Ababa University, planned by the All Amhara Peoples Organisation (AAPO) and the organisation of the former Minister of Foreign Affairs (Goshu Wolde). The CAA facsimile notes:

“At least seven students were arrested, and then released. We cannot confirm that any were later re‑arrested, but believe this was not the case. All students except one, believed to be named Gashaw, returned to the university and have since continued to study, or have completed their studies. They appear not to have been discriminated against in any way.”

This information contrasts with Amnesty International’s report of the same incident. I refer you to Urgent Action UA 01/93, from 5 January 1993 (AI Index: AFR 25/01/93). The UA notes:

"Amnesty International is concerned at the killing of peaceful demonstrators by members of the Ethiopian security forces in Addis Ababa on 4 January 1993. During a demonstration by over one thousand students of Addis Ababa University, the Ethiopian security forces reportedly shot dead at least seven students and wounded over 100 others, five of whom are said to have subsequently died in hospital...

"... The security forces reportedly opened fire without warning, although the demonstration had been peaceful. Students were beaten, wounded or shot, both inside the campus and outside on the street. The security forces refused to allow ambulances to take the wounded to hospital for over an hour after the shootings.

"Scores of students were also arrested and held incommunicado. Government officials later claimed that only one person had been killed and 13 wounded. The identities of those killed and those detained are not yet known to Amnesty International.”

The difference between the two accounts is certainly striking, although there is no doubt that they both refer to the same incident. Even the most conservative reporting of the incident provided by Ethiopian Government officials referred to at least one death and 13 wounded, injuries which are completely absent from the CAA account, despite the fact that the CAA claimed to have “consulted a number of sources”. The US State Department Report 1994 notes:

"Security forces used excessive force on several occasions in 1993. The TGE overreacted in countering a demonstration for which the students had not given prior notification, as required by Ethiopian law. TGE troops encountered the students as they emerged from the university grounds, and, in the ensuring [sic] melee, at least one student was killed. Unofficial accounts by university students supported by an international human rights organisation, put the number at about seven. The Ethiopian Human Rights Council confirms one death but believes other death [sic] may have occurred.”

The US State Department Report goes on to document another disturbance which resulted in 13 confirmed deaths as a result of the use of excessive force by the security personnel. This is an indication that the above incident was not unprecedented. The CAA report notes no report of any extrajudicial executions, nor any ill‑treatment of demonstrators.

It is also notable that there is no indication in the letter to Mr Kessels that any other information exists to counter that provided by CAA.

The reliability of Amnesty International’s information

Amnesty International’s effectiveness as a human rights campaigning organisation is based on the accuracy and thoroughness of its research. Amnesty International’s information must conform to the highest standards of accuracy so that the movement’s independence, impartiality and credibility is safeguarded. Amnesty International’s research is never based on hearsay, rumour, or biased or slanted reports.

Whenever Amnesty International hears a report of political arrests or shootings, or of people threatened with torture or execution, it concentrates first on examining the allegations. The researchers employed by our International Secretariat in London gather information from relatives of the victims of human rights violations, and from lawyers, journalists, refugees, community workers, diplomats other human rights organisations and reliable contacts built up over 34 years of human rights monitoring. Each piece of information is carefully checked. Only when the researchers are sure they have a solid basis for concern do they make the information available for distribution. When information is shown to be inaccurate, Amnesty International issues a correction immediately. The movement's research is recognised as highly reliable, and is widely consulted by scholars, journalists, governments, and organisations needing information on violations of human rights.

The report by Amnesty International of the above incident of extrajudicial executions includes the word “reportedly”. This is the only indication in the whole report that could be used to throw any doubt on the veracity of the incident, indicating that the deaths were not confirmed directly. The fact, however, that the reported deaths were included in the statement at all indicates that the information and its sources were checked and crosschecked for reliability and accuracy."

On 17 July 1995 Mr Zagor wrote again to the Tribunal’s Deputy Registrar, apologizing for not having incorporated in his earlier letter the following information he said should have been incorporated under “The reliability of Amnesty International’s information”:

“In our most recent report of April 1995, (AI Index: AFR 25/06/95), on pages 43-44, an inquiry into the incident of 4 January 1993 is reported. It provides some clarification about what happened during and after the incident.

“There was an extended public inquiry into one incident, which took place at Addis Ababa University on 4 January 1993. Security forces shot at a student demonstration which started peacefully, killing one student and injuring 13. An official Committee of Inquiry into the incident, mandated to establish the facts, began in March 1993. In December 1993 it submitted its report and recommendations to the Council of Representatives, which would decide on any measure to be taken. The President of the Supreme Court chaired the committee and nominated its members from among religious leaders, judges and others.

“The committee took evidence from students and professors, eye-witnesses, journalists, police officers, hospital staff and others. Some evidence was given before television cameras. The inquiry focused particularly on the question of how many people were killed or wounded by the security forces. Police stated that one person, Tesfahun Worku, a first-year mature student, had been killed and 13 wounded. The inquiry committee reported that it received no evidence of more tha [sic] one death by shooting or more that [sic] 13 wounded. (The government had criticized Amnesty International for an early statement that it had received initial reports of several deaths, but Amnesty International’s own sources did not subsequently substantiate this and the organization accepts the figure of one death.)

“Amnesty International remains concerns [sic] about certain aspects of the inquiry, including questions relating to the procedures for resolving conflicting testimony and the issue of responsibility of the shootings. In its view, insufficient attention was paid to protecting witnesses from reprisals: indeed, the arrests of 95 students after the incident, the subsequent closure of the university and dismissal of staff and students was highly intimidating.

“Nevertheless, the committee apparently took its work seriously and no witnesses are known to have suffered reprisals. However, the committee’s report to the Council of Representatives is not publicly available and only a summary of it which was published in the government press has been provided by the committee to Amnesty International. The report is said to have made recommendations about the use of lethal force by the police and advised compensation for the dead victim’s family. The Council of Representatives has not yet had any debate or reached any decision on the report.

“With the exception of this inquiry, investigations into alleged extrajudicial executions have been inadequate and incomplete. In most cases, there has been no official comment or official media reporting of the incidents or publication of the result of any official investigation into them.”

Mr Kessels in the meantime had sent an extremely offensive letter dated 7 July 1995 to the Right Honourable Malcolm Fraser, complaining about the letter from Community Aid Abroad. (Mr Kessels was evidently unable to distinguish between CARE Australia, of which Mr Fraser was chairman, and Community Aid Abroad, with which he had no connexion.) Mr Kessels’ letter was, in any event, passed on to Community Aid Abroad. It transpires that the officer of Community Aid Abroad contacted by the Tribunal’s research staff, although based in Mozambique, has specialist knowledge and experience of politics in Ethiopia where he was visiting during July 1995. This is a most unedifying episode which, in my opinion, does not reflect well on Mr Kessels or Mr Zagor.

In any event, the Tribunal was not sidetracked. On 24 July 1995 the Tribunal’s Deputy Registrar wrote to Mr Kessels:

“The Member wishes to arrange a second hearing for Mr Eshetu to clarify some of the claims included in his application fo [sic] refugee status.

In particular, she wishes to clarify Mr Eshetu’s claims relating to the arrest of students planning to stage a demonstration in December 1991 and the subsequent re-arrest and apparent disappearance of four members of the Student Council. As you are already aware, the Member is concerned that the nature of this event has not been reported by any of the organisations monitoring human rights abuses at the time. The Member also has concerns regarding the claims made by Mr Eshetu that 25 or so of the people arrested with him in 1991 have subsequently been killed or disappeared and that some of his friends were summarily executed during a student demonstration in January 1993. The most recent evidence on the 1993 demonstration from Amnesty International’s recent report on Ethiopia (dated April 1995) states that there was one death during this demonstration.

The Member would also like to discuss Mr Eshetu’s involvement in the Ethiopian Association while in Australia and his brother’s involvement in politics and recent death.”

Mr Eshetu gave evidence before the Tribunal once more on 21 August 1995. This time the transcript of his evidence comprised twenty-five pages. Again he was accompanied by Mr Kessels.

On 25 August 1995 the Tribunal’s Deputy Registrar wrote to Mr Kessels informing him that the second respondent was awaiting a report on the current political and human rights situation in Ethiopia from an officer at the Australian diplomatic post in Nairobi who had just returned from a visit to that country. Subsequently, the Tribunal received a copy of a cable (O.NA 3576) dated 4 September 1995 from the Nairobi post. This was sent to Mr Kessels who responded with his comments on 30 September 1995.

The Tribunal’s Decision

As I said at the outset, the Tribunal made its decision on 30 November 1995. I propose to set out large slabs of the Tribunal’s statement in view of the criticism of its fact-finding by Hill J. The statement comprises twenty-one pages of single-spaced text. The statement is divided into two parts, headed respectively “Mr Eshetu’s claims and evidence” and “Assessment of Mr Eshetu’s claims and evidence”.

In the first part under the sub-heading “Mr Eshetu’s role in the Student Council”, the Tribunal said:

“In his initial application, Mr Eshetu said he was still at school in May 1991 when Mengistu fled and the EPRDF entered Addis Ababa. He said that the city was dangerous following this and he did not go out much, although he managed to met [sic] other students and talk to them about politics on occasion. On 1 October 1991 he started university and shortly afterwards became one of eleven members of the Student Council. The Council met approximately once a week and discussed the new Transitional Government and how the EPRDF was destroying Ethiopia. They wanted a more equitable division of power between the ethnic groups and tried to develop a strategy to seek support from power brokers such as the United States and from Oromos who at that stage were fighting with the Tigrayans against the Amharas.

Mr Eshetu said that the Student Council decided to organise a protest march to the US Embassy on 5 December 1991 to convince the US government that the transitional government was not representative of all Ethiopians and should be replaced. Posters were put up around the university to advertise the march. A day before the march, uniformed officers from the EPRDF army came into Mr Eshetu's class and arrested him. Twenty five or so students, including the other 10 members of the Student Council, were also arrested. They were taken to Maikelawi Prison where they were held for three days. They were given no food and were badly beaten. After this they were released and told that if they participated in any further anti‑government activities they would be executed immediately. Mr Eshetu could not walk for a week because of injuries to his feet. After his release Mr Eshetu returned to class, but four days after his return took the day off to see a doctor. That night some members of the Student Council came to his home and told him that four members of the Council had been arrested again and warned him that it was not safe for him to remain in Ethiopia. He has not heard from the Student Council members since.

Mr Eshetu added that since leaving Ethiopia he had learned that many of the people who were arrested with him in 1991 have since been killed or had vanished. He had also learned that 25 people, including a number of his friends, were killed during a demonstration on 4 January 1993. Over 100 people were injured during the demonstration. Mr Eshetu claimed he was told that his that his [sic] friends were not killed indiscriminately, but had been executed by other armed students in the crowd. He believes that he too would have been killed had he remained in Ethiopia. Since the march a number of people, including friends of Mr Eshetu, have disappeared and it is assumed they have been killed.

When asked where he obtained his information on the fate of his colleagues and those involved in the demonstration during his interview with the Department, Mr Eshetu said that his sister had informed him that over 25 people were killed during the student demonstration in January 1993. He has also heard reports on 2EA transmitted from America and read Amnesty International reports on the incident.

The interviewing officer advised Mr Eshetu that the US Report for 1993 stated that there were no reports of officially sanctioned killings in 1993, although there had been at least one death when troops opened fire on an unauthorised student demonstration. It was also noted that unofficial accounts by university students, supported by international human rights organisations had put the death toll at seven. Mr Eshetu replied that people knew from their experiences under the previous government that people were killed or disappeared and it was difficult for families to prove this. He said that his sister has told him that many of his friends have disappeared and nobody knows where they are.

Mr Eshetu was also advised that there was no mention of the arrest of the Student Council members in 1991, although detentions were reported to organisations such as Amnesty International and in at least some cases those involved were named. Mr Eshetu replied that Amnesty International may not have received any information on the student's arrest. He added that the current Student Council is made up of Tigrayans who support the current government.

Mr Eshetu's involvement in the Student Council was discussed during the first hearing at the Tribunal. He said that he had been elected to represent first year students on the Council. The Council had met openly once or twice to discuss general issues, but had also met in secret to discuss political issues. He believes that one of the members of the Council was a spy for the Tigrayans, because he was not part of the group arrested in December 1991. I asked Mr Eshetu why the students had thought it necessary to organise the demonstration secretly as, according to the US Department of State for 1991, while demonstrations were banned for a short period after outbreaks of violence in early June, demonstrations were permitted after August 1991 and a number were held during which demonstrators criticised the government without problem. Mr Eshetu agreed that people were allowed to speak out during this time, but added that the government did not really want people to speak out openly and said they especially hated the idea of student demonstrations because the people trusted the students.

Mr Eshetu was asked when the students had first demonstrated against the new government. He said this happened about six months after Mengistu's fall, in December 1991. Before this high school students had tried to rebel because the schools were under the control of armed guards from the EPRDF and he believes that at least 3 students in every school were killed by the EPRDF. He added that EPRDF soldiers refused to let injured students be taken to hospital for treatment and added that he had seen a girl from year nine denied treatment and her body was later discovered. He added that these matters are not recorded in reports by organisations like Amnesty International and he does not understand why.

Mr Eshetu was advised that independent evidence before the Tribunal indicated that university students had first demonstrated against the government in May or early June 1991 when they had marched on the United States Embassy. He stated that he had not been a student at that time.

When asked about the demonstration which he and the Student's [sic] Council had been organising, Mr Eshetu said that they had intended to march on the US Embassy because they were very angry because the Americans had allowed the TPLF to take control in Ethiopia. I pointed out that in earlier submissions Mr Eshetu had stated that the purpose of the demonstration had been to ask for support from the Americans and he was asked whether the demonstration had been to protest against the Americans or seek their support. He replied that the students intended to go to the Embassy to deliver a paper on their views.

I asked Mr Eshetu if he has any knowledge of the current whereabouts of the other members of the Student Council. He replied that four of them were detained again shortly after the first arrest and he believes that some of the others are outside the country because they discussed leaving after the four were detained. However, he has not been in contact with them since the day they came to his house to warn him not to return to University.

I advised Mr Eshetu that I had great difficulty accepting that he had been arrested in the circumstances claimed. I pointed out that there was no mention of such an incident in any of the sources consulted and, while I acknowledged that not all detentions of opponents of the government during this period would have been recorded, I found it most unlikely that an event such as that described by Mr Eshetu, involving as it did the arrest and torture of the entire student council, would not have been reported by those involved or have been mentioned in at least some of the sources consulted. Mr Eshetu maintained that the incident had indeed occurred.

Following the hearing, submissions on this issue were received from Mr Kessells who argued that Mr Eshetu’s claim regarding the arrest of the Student Council should not be discounted because it had not been mentioned in publications covering the period. I then decided to conduct additional research on the issue.

The Tribunal's research staff contacted the Ethiopian Human Rights Council, a non-government human rights organisation formed in October 1991, and ask if they were aware of the incident in question. Mr Wolfe Mariam, the Secretary General of the organisation advised that the Council was not aware that members of the Student Council had been arrested in December 1991, although he said that it was possible that students had been detained without the knowledge of the Council. He also advised that there had been problems between the students and the government and it was unlikely that a former member of the Council would be greeted in a "friendly" manner on return to Ethiopia. A facsimile was sent to the EHRC asking Mr Wolfe Mariam to confirm his statements in writing and to clarify whether he thought it is possible that 25 students including 11 members of the Student Council to have been detained in the manner described by Mr Eshetu and [sic] the incident was [sic] had never been reported or made public by those involved. Unfortunately, no written response to this inquiry was ever received

The Tribunal then contacted Community Aid Abroad, an Australian non‑government aid agency which has operated in the area for some time, and asked if they could provide any information on the incident. They discussed the matter with their contacts in Ethiopia, including university staff, none of whom had any recollection of such an incident involving students in December 1991.

This information was forwarded to Mr Eshetu for comment. In submissions made on his behalf, Mr Kessels argued that the aid agency's advice was not reliable because they had not named their sources and are a charitable institution working in Ethiopia as “guests” of the current government and noted that some of the comments made by CAA regarding student demonstration held in 1993 appeared to be inaccurate, casting doubts on the usefulness of their advice.

Mr Eshetu was invited to a second hearing of the Tribunal on 21 August 1995 to clarify a number of issues which had not been fully addressed at the first hearing.

The lack of any report on the 1991 arrests and subsequent re‑arrest of four members of the Student Council was again discussed. Mr Eshetu said when the EPRLF took over in Ethiopia there was a great confusion and people were concentrating on what happened to the high official [sic] of the former regime who were detained at the time and were not generally aware of what was happening to people such as him so it was easy for incidents such as his detention to go unnoticed. Mr Eshetu also said that he had seen large numbers of people shot dead in Addis Ababa. The authorities claimed that these people were looters, but he does not believe this is true. He said that in comparison his treatment was mild and therefore was not surprising that his case was not reported.

Mr Eshetu said that he was aware of the existence of Ethiopia Human Rights Council which was established in October 1991 and had recently tried to get in touch with the former leader of the organisation who is now in the US, but without success. I reminded Mr Eshetu that the Tribunal had spoken to Mr Wolfe Mariam from this organisation who had advised that the organisation was not aware of the arrests.

Mr Eshetu was asked to clarify how many people had been detained with him in 1991. He said that about 25 students, including 11 from the Student Council, had been detained.

When asked about the current circumstances of these people, Mr Eshetu says that he had cut his relations with his Ethiopian friends and did not know what has happened to any of the people who were arrested with him, including the four people who were re‑arrested shortly after his release.

I asked Mr Eshetu why he had said in his initial application that many of the 25 people who had been arrested with him had been arrested or vanished. He replied that this was what he had heard from his sister. I also asked him about the claim that his sister had told him that a number of his friends had been executed by armed students during a demonstration in January 1993. Mr Eshetu said that this was true. I pointed out that the evidence before the Tribunal indicated that only one person, a first year student, had been killed during this demonstration. Mr Eshetu said that while he was in Israel everyone had their own figure of the number killed during the demonstration. When he arrived in Australia he had read an Amnesty International report on the incident which stated that seven people had been killed and hundreds wounded. He said that he did not trust the government figures or the result of the investigation of the incident. He said that people of Ethiopia did not trust the government report or the more recent Amnesty Report.

I then asked Mr Eshetu to tell me about the friends who he claims were killed. He replied he had heard from his sister that the soldiers who had attacked the demonstrators had known whom to target and as he had known and worked with most of the student activists in Ethiopia, he believed that those killed were his friends. Mr Eshetu added that in his view the killing of large numbers of students during this demonstration was in keeping with what was happening in Ethiopia at the time and he therefore believed that many people had been killed, as first reported in a number of sources, not just one as claimed by the government.

Mr Eshetu was unable to name the [sic] any of the people allegedly killed during the demonstration. The only person he was able to name was a friend called Abeabe who he claimed had disappeared on the day of the demonstration. Mr Eshetu said that he does not know what happened to Abeabe.

I asked Mr Eshetu who had told his sister that some of his friends had been executed during the demonstration. He said that Ethiopians outside their homeland followed the situation there by talking to relatives who remained in the country. He said that it was often difficult to get concrete information from Ethiopia, and that people often heard different things. He said that many people may think that he was dead or in prison. But, he argued the fact that there was no concrete information on an incident did not mean that it had not occurred..

I suggested that it appeared that his sister had contacted friends and family in Ethiopia and heard that it was rumoured that many people had died, but that investigations by bodies such as Amnesty International had found that this was not true. I also pointed out observers such as people from the US Department of State advise that the different political groups in Ethiopia frequently accuse each other of human rights abuses and that the rumours his sister had heard appeared to have been based on unsubstantiated allegations. Mr Eshetu said that his sister's information came from the victims. He said that his family home was close to the university and he believed that his brothers had good information and he did not believe they would exaggerate.”

In the second part of its statement, the Tribunal said:

“I accept that Mr Eshetu has a strong subjective fear of returning to Ethiopia based on his conviction that the current government of Ethiopia is conducting a repressive campaign against its opponents in general and Amharas in particular. However, I find the chance that he will face serious harm amounting to persecution either because he opposes the current government or because he is an Amhara to be remote.

Mr Eshetu's political involvement during the Mengistu years

I accept that Mr Eshetu was involved in several anti‑Mengistu demonstrations while at high school and that he may have been detained as a result of this. However, as this government is no longer in power, I do not consider that Mr Eshetu's involvement in activities directed against it will have any impact on his treatment on return to Ethiopia.

I have a number of doubts about Mr Eshetu's claims regarding the attempts by students to infiltrate and takeover the Ethiopian military as his evidence on these activities was somewhat confused and information before the Tribunal indicates that the government had been forcibly recruiting soldiers, many of them under 16 years of age, for some time which appears to contradict Mr Eshetu's claim he wanted to join the army in early 1991, but was unable to (see US Department of State Country Reports on Human Rights Practices for 1990, p.115). However, even if I accept Mr Eshetu volunteered to join the army in the dying days of the Mengistu regime, there is no evidence before the Tribunal which suggests that this would have any impact on his treatment on return to Ethiopia.

The situation in Ethiopia prior to Mr Eshetu's departure

Ethiopia is one of the poorest countries in the world and has a population made up of over 70 sometimes antagonistic ethnic groups, the largest being the Amhara and the Oromo.The capital and the central government have long been dominated by the Amharas. Up until 1974 the country was ruled by a feudal monarchy. Following this a Marxist dictatorship led by President Mengistu Haile‑Mariam took power. Mengistu created the Workers Party of Ethiopia (WPE) to support his rule. The period of Mengistu's rule was marked by brutal repression including arbitrary detentions, torture, "disappearances" and extrajudicial executions (see for example Amnesty International Ethiopia and Eritrea: The Human Rights Agenda, September 1991).

On 28 May 1991 the Mengistu government was overthrown by the Ethiopian People’s Revolutionary Democratic Front (EPRDF), a coalition of opposition groups dominated by the Tigray People's Liberation Front (TPLF) who had been fighting the central government for many years. The EPRDF takeover of Addis Ababa involved little conflict or loss of life as Mengistu had already fled and the army had ceased to resist the EPRDF advance although, several people killed [sic] when troops opened fire during demonstrations held the day after the EPRDF entered Addis Ababa (Patrick Gilkes, Ethiopia, Africa South of the Sahara 1995, Europa, London 1995 p. 379).

In July 1991, the EPDRF invited 27 political parties and ethnic organisations to attend a National Conference in Addis Ababa at which a National Charter established a multi‑party Transitional Government (TG) to administer the country until a new constitution could be drafted and national elections held. It was agreed that multi‑party democracy should be established by January 1994 at the latest.

The July Congress also spelled out universal guarantees of human rights and the evidence before the Tribunal indicates that the TG had real commitment to establishing high standards on human practice and there were significant improvements in human rights following the takeover by the EPRDF, particularly with respect to freedom of speech, assembly, association, religion, and travel. The US Department of State Country Reports on Human Rights Situations for 1991 states that in the second half of 1991:

The TG's National Charter, approved in July, provides for freedom of opinion and expression and the right to impart these through any media, although, pending action on a new press law, all broadcast and most print media remained under state‑control. Nevertheless, individuals and political groups, including those critical of the TG, had access to the state controlled media...(p. 124).

Freedom of assembly and association expanded greatly during 1991...The day after entering Addis Ababa, the EPRDF banned demonstrations after several turned violent. In the weeks that followed, however, the EPRDF allowed dozens of peaceful demonstrations. The July National Charter endorsed freedom of association, peaceful assembly, and the right to engage in unrestricted political activity and to organise political parties. On 15 August, the TG issued a proclamation recognising the right to demonstrate, and popular demonstrations became routine around the country, including those protesting TG policies...(p. 125).

The US Human Rights Report for 1992 states that "people spoke freely in 1992", that "popular demonstrations became routine around the country, including those protesting TGpolicies" and that “there was a proliferation of political organisations (over 130) from a wide spectrum of political opinions”.

The Human Rights World Report Watch for 1993, which covers the previous 12 months states that:

Ethiopia under the EPRDF has witnessed a flourishing of numerous political parties, representing an unprecedented variety of opinions and platforms. These range from monarchists to separatists representing small ethnic groups. All parties can produce their own literature, and can organise public demonstrations.

Despite these changes, Ethiopia continued to face major problems in the year following the change of government. The EPRDF victory did not mean an end to inter‑ethnic violence and militias from different groups continued to clash with each other, mostly in areas outside the major cities, resulting in many deaths.

According to most observers, all groups involved in this conflict were guilty of arbitrary actions and human rights abuses. Africa Watch report that the Islamic Front for the Liberation of Oromia, the Sidama Liberation Front and the Ogaden National Liberation Front all claim that leading members of their organisations have been killed or arbitrarily detained by EPRDF soldiers and adds that there are credible reports that more than 250 members of the Oromo Liberation Front (OLF) have been arbitrarily detained. According to Africa Watch, some of these actions were taken after considerable provocation on the part of the groups concerned. Their report notes that other political organisations, notably the OLF, violated military agreements and frequently ambushed or attacked EPRDF soldiers serving in rural areas in the south and east. Members of other groups where [sic] also responsible for arbitrary killings, often on an ethnic or religious basis, during the period in question. (Ethiopia: Waiting for Justice, 8 May 8 May [sic] 1992 p. 6 & 8).

The US Human Rights Report 1991 describes the inter‑ethnic conflict in the following terms:

After the TG came to power in July there were dozens of instances of violent clashes between local elements of political parties within the TG. In a number of instances, rival groups repeatedly engaged in politically or ethnically motivated killings...[In many cases] the national leadership of the political groups intervened to mediate and investigate. When wrongdoing was uncovered, the EPRDF appeared more likely to discipline its members than members of other political groups (p. 119).

In the first year of the TG, crime was also a major problem. Immediately after takingpower the EPRDF began dismantling the extensive military and security apparatus of the former government, which resulted in the demobilisation of 400,000 men, many of whom retained or sold their weapons. With no programs to assist them to re‑integrate into civilian life, they contributed to a large pool of unemployed, often frustrated armed young men some of whom turned to crime. In addition, when the EPRDF entered Addis Ababa and other main towns, the prisons were opened and many convicted criminals escaped. In the absence of a functioning police force, policing functions were given to the EPRDF forces and locally elected Peace and Stability Committees were established in June 1991, who often proved inadequate for the tasks required of them. According to Africa Watch:

In the early days after the EPRDF takeover of Addis Ababa and the south of the country, "frontier justice" was enforced. Looting suspects were liable to be shot on sight, and alleged thieves were sometimes subject to summary execution...Such cases have now become rarer...Most of the actions are taken against alleged criminals (op cit. 8 May 1992 p. 5; see also p. 3‑4 & 9 ‑10).

Thousands of soldiers and former officials of the Mengistu government and the Workers Party of Ethiopia were detained and held without charge in 1991. While some were believed to have been involved in corruption and violations of humanitarian law, others appear to have been detained purely because of the positions they held. While many of these people were released in 1992, others remained in detention despite the fact that they had not been formally charged with any crimes (see for example, US Human Rights Reports for 1991 and 1992 p.121; Human Rights Watch World Report 1992 p.14 and Amnesty International Annual Report 1993 p. 128).

The WPE was banned and its former members stripped of certain political and civil rights, but most of these were reinstated in 1992. The first two Reports of the EHRC report that employees of government organisations and institutions were dismissed for alleged maladministration and corruption without any due process by the grievance committees established within these institutions. The second report notes that the Prime Minister has issued a directive that grievance committees are no longer to have the power to dismiss employees.

As noted above, members of groups involved in continuing conflict with the EPRDF were also detained during this period. However, the reports available to the Tribunal mention only one incident in which opponents of the government were detained for a prolonged period in Addis Ababa during the first year of the TG. Three leaders of the National Democratic Union (NDU) who were detained following a legal demonstration which turned violent when demonstrator permit began pelting EPRDF guards with stones. The EPRLF guards did not respond with force, but the leaders of the group were subsequently , detained, apparently because, in accordance with provisions on their demonstration permit they were held responsible for the behaviour of the demonstrators (Africa Watch op cit 8 May 1992 p. 7).

From the evidence before the Tribunal, it is clear that widespread crime and ethnic violence continued in Ethiopia following the EPRDF takeover in 1991 and that many people were detained for prolonged periods without being charged, including some members of some groups opposed to the EPRDF. However, the evidence does not suggest that those who criticised or demonstrated peacefully against the government in Addis Ababa were generally at risk of detention or serious harm. On the contrary, the evidence suggests that individuals and groups were able to speak out against the government and many demonstrations were held without the participants experiencing serious problems. Of course, this does not mean that the possibility that some people were detained for planning or involvement in peaceful anti‑government demonstrations can be completely discounted and I would not have rejected Mr Eshetu's claims regarding his alleged detention in December 1991 merely because it appeared to be an uncommon occurrence at the time. However, after considering the evidence before the Tribunal on the period in question, I do not accept his claim that such occurrences were common or that the EPRDF suppressed all opposition to its rule during the period he remained in Ethiopia.

Involvement with the Student Council and detention

None of the reports before the Tribunal published by those monitoring the human rights situation in Ethiopia at the time mention this particular incident in which Mr Eshetu claims to have been involved, nor were those contacted by the Tribunal regarding the claim aware of the alleged arrests. Searches of Reuters and Nexis data bases, which hold media reports from a number of international newspapers and magazines, conducted by the Department, revealed no mention of these arrests.

During the time in question the human rights situation in Ethiopia was being monitored by both national and international human rights organisations and the evidence before the Tribunal clearly indicates that groups opposing the EPRDF both in Ethiopia and overseas made public allegations regarding alleged human rights abuses at the time. The US Human Rights Report for 1991 states that:

Since the TG came to power in Addis Ababa, there have been charges and countercharges among its various political parties of politically motivated violence in the countryside, including some disappearances of party workers (p. 120).

In October a group of private citizens organised Ethiopia's first independent human rights monitoring body: the Ethiopian Human Rights Council (EHRCO), headed by a prominent academic and frequent critic of the TG. Also in October, two other private groups formed to further political dialog and promote respect for democratic rights: the Ethiopian Congress for Democracy (ECD) and Forum‑84. All three groups have been allowed to operate freely and have access to the state controlled media to broadcast information about their activities

The...TG has generally been willing to discuss human rights concerns with diplomatic missions and international and non‑government organisations. Amnesty International representative had their first free and unrestricted visit to Ethiopia in July and visited again in December to investigate alleged violations of human rights. An Africa Watch delegation visited Ethiopia in October. Both groups were received by high‑level TG officials and given prominent coverage in the state-controlled media (p. 129).

The 1992 US Human Rights Reports for 1992 makes similar comments and adds that the three local human rights groups formed in 1991 "were allowed to operate freely and at times voiced vociferous opposition to TG policies without repercussions"(p 90).

According to the first report produced by the EHRC on 12 December 1991:

Even before the announcement [of the formation of the EHRC on 29 October 1991] was made complaints were submitted to the EHRC, and after October 29 there was a continuous flow of complaints from many parts of the country.

The letter dated 5 June 1992 from the Ethiopian People's Revolutionary Party in Paris which brings to the attention of UNHCR, Amnesty International and Africa Watch the disappearance of a number of Ethiopian refugees in the Sudan is a further indication that opposition groups were involved in bringing human rights abuses to the attention of human rights groups.

According to Mr Eshetu's own evidence the university students in general and the Student Council in particular were regarded as an important political group in Ethiopia.

According to the Human Rights World Watch Report for 1993 (p 14), the University of Addis Ababa remained an independent body in where political issue were vigorously debated throughout 1992. The university was granted a new charter securing its academic freedom in 1992, and appointed its own President (a professor known to be wholly independent of the government).

As discussed above, the detention and torture of 25 students for planning a demonstration during this period would have been an unusual occurrence.

In these circumstances, I find the claim that 25 students, including all but one the Student Council, were arrested in their classrooms and detained and tortured for three days without anyone making the incident public or reporting it to the human rights organisations monitoring the situation in Ethiopia at this time to be implausible.

The fate of Mr Eshetu's friends and colleagues

I do not accept that a large number of Mr Eshetu's friends and colleagues from university have been detained, disappeared or killed since his departure from Ethiopia because of their political views or activities.

When the present circumstances of his university friends and colleagues was discussed at the second hearing of the Tribunal, Mr Eshetu was unable to provide any specific information on the fate of these people. His claims regarding the disappearance or death of these people was [sic] based on rumours circulating in the capital which were passed from friends and relatives in Ethiopia to his sister in Israel and finally on to him in Australia. I accept that Mr Eshetu may believe many of these rumours to be true. However, his statement that many people probably believe he is dead or in detention indicates that such rumours are often based on nothing more than speculation.

The only specific information that Mr Eshetu provided regarding the fate of his friends following his departure from Ethiopia is the claim that a number of them had been summarily executed during a student demonstration in January 1993. As pointed out to Mr Eshetu, it is now generally agreed that only one person, a first year student, was killed during this demonstration (see for example, Amnesty International, Ethiopia Accountability past and present: Human rights in transition, April 1995, p. 43).”

The Tribunal stated its conclusion:

“I accept that Mr Eshetu fears returning to Ethiopia. However, I find the chance that he will experience persecution for any of the reasons contained in the Convention to be remote. His fear of persecution is therefore not well‑founded. He is thus not a refugee, not someone to whom Australia has protection obligations and not entitled to a protection visa”.

Criticism of the Tribunal’s Fact-Finding

Hill J noted (Eshetu at 479-480) that at first instance it was agreed by the parties that a successful challenge to the Tribunal’s conclusion that the December 1991 incident did not occur would result in the matter being referred to the Tribunal for further consideration. His Honour also said: “It is also implicit in the submissions on behalf of [Mr Eshetu] that it is conceded that the only matter in contention before me concerns the December 1991 incident.” The Tribunal’s conclusion was, of course, that which Hill J later described as unreasonable.

Hill J said (at 476): “There was no reason for [Mr Eshetu] to believe that the Tribunal thought he was lying.” His Honour said (at 478) that Mr Zagor’s “expressed concern that the Tribunal might take the absence of information about the incident as an indication that it did not occur” was “well justified”. Later, after referring to the Tribunal’s finding in the last paragraph of its reasons under the heading “Involvement with the Student Council and detention”, his Honour said (at 479):

“The tribunal also did not accept that a large number of the applicant’s friends and colleagues, despite the comments which might be thought to have lent some support in the answers of Mr Wolfemariam, had been detained, “disappeared” or killed. In so doing, the tribunal did not reject any evidence of the applicant, for his knowledge or views on this matter depended very much on third hand accounts. Having regard to the EHRC response, to which I have made reference earlier, the rejection of the idea that student leaders had been killed was clearly beyond the weight of the evidence and was unreasonable.”

In the final section of his judgment, Hill J said (at 486):

“There is little doubt that the tribunal was greatly, perhaps almost exclusively, influenced in its conclusion by the view it took of the significance of the fact that the reports before it did not refer to the December 1991 incident.

It will be apparent from the passages quoted earlier from the tribunal’s reasons, that the tribunal took the view that, had the December 1991 incident occurred, it would necessarily have come to the notice of at least some of those monitoring human rights in Ethiopia. The tribunal was aware of the fact that the student body was the elite of the country and had considerable political influence. It discounted what the applicant said about the situation in Addis Ababa at the time and wholly ignored the view of the EHRC representative that it was quite possible that the event would not have come to the notice of that organisation.

The tribunal’s conclusion totally lacks logic. The tribunal’s decision as reached was so unreasonable that no reasonable tribunal could reach it.”

I am unable to agree with any part of Hill J’s criticism.

The Minister’s delegate quite plainly did not accept Mr Eshetu’s claims that he had been detained and tortured in December 1991 (paragraphs 5.1.2-5.1.5 of the decision record). (Interestingly, she refers to an Amnesty International Report 1992, which was not in evidence before the Court at first instance or on appeal.) Further, in his initial submission to the Tribunal dated 17 February 1995, Mr Kessels said that the delegate found that Mr Eshetu “was lying”. The delegate had, in fact, not used such language. But the important point is that it was clear from the outset of the Tribunal’s review that the delegate had not accepted Mr Eshetu’s veracity in relation to his alleged detention in December 1991.

On the occasion of Mr Eshetu first giving evidence before the Tribunal, the second respondent said to him:

“... I certainly appreciate the fact that Amnesty and the United States State Department and other bodies that monitor human rights situations, or the situation in Ethiopia particularly I recognise that they are not going to know about all the arrests all the disappearances and all of the clashes that occur in the country, obviously they are not going to know everything. But I have to say that I find it a little strange that none of these bodies, and not the Ethiopia Human Rights Council which operates inside Ethiopia and to which I understand many people take complaints, I find it a little strange that the entire Student Council from the ...(indistinct)... University could be detained for four days, that most of them had been and left the country and that four of them would have disappeared and there would be no mention of this anywhere.”

This passage immediately followed Mr Eshetu’s account of the alleged events in December 1991. It is obviously not perfectly transcribed, but the rest of the transcript shows that Mr Eshetu was under no illusion that his story of those events had been accepted by the Tribunal. There is, in the context, nothing equivocal about the second respondent’s statement towards the end of the evidence - “nobody doubts that you are a fine person” (noted by Hill J at 476). That was a compassionate statement in response to Mr Eshetu’s pathetically irrelevant, yet no doubt quite heart-wrenching, tender of a Red Cross report on the health of his son who was only 15 days old when Mr Eshetu left Ethiopia. The review is not an adversarial process. The Tribunal is not required to “put” an allegation of mendacity to an applicant in the manner of a cross-examiner. That would set an entirely inappropriate tone to the hearing, especially where there is no real issue as to the genuiness of an applicant’s fear of persecution, but only as to whether such fear is well-founded.

What else is significant about this excerpt from the transcript is that it shows that, from the beginning of its review, the Tribunal was quite alert to the possibility that not all detentions will come to the attention of human rights monitors. The Tribunal did not need any of the gratuitous instruction subsequently offered by Mr Zagor as to what inferences may be drawn from the absence of independent information about an alleged human rights violation.

In any event, it is apparent from the correspondence that commenced that very day (which is why I have set it out in extenso) and from the transcript of Mr Eshetu’s later testimony that both he and his solicitor knew that his credibility was the issue in relation to the alleged detention in December 1991.

The documents enclosed with the submissions from Mr Kessels dated 17 February 1995 are (save for items 27 and 28) in evidence before the Court. The clippings from the newspapers (New York Times, The Independent, International Herald Tribune, Washington Post) and from magazines and newsletters (Africa Confidential, New African) show the high quality and detail of reporting from Ethiopia. But it will be apparent from their dates that these clippings do not relate to the period in question, namely December 1991.

The material from Amnesty International covered specific appeals relating to (1) the arrest in Addis Ababa in December 1993 of exiles returning for a conference, (2) the arrest in Addis Ababa in January/February 1994 of journalists detained at Maikelawi prison, and (3) the detention in different towns in south-eastern Ethiopia in late January 1994 of members or supporters of the Ogaden National Liberation Front. Again, this material casts no light on events in and around Addis Ababa University in December 1991, but what is striking is the detail of the reporting. Amnesty International quite obviously has excellent sources, and the information would seem to be expertly collated by its researchers in London. (It also appears from the decision record of the Minister’s delegate (paragraph 3.2.19) that at least the material in the first two categories had earlier been provided by Mr Eshetu.)

The documents from EHRCO are most revealing. Its first report is dated 12 December 1991 and covers “complaints ... submitted to the Secretariat of EHRCO from October 21 to November 27, 1991”. In its second report dated 13 February 1992, EHRCO says that: “For the most part the present report covers the complaints received since December 12, 1992 [scil. 1991].” Hill J suggests (at 477) that the report thus leaves “on its face some hiatus” in respect of “the period in which the events narrated by the applicant occurred”. However, upon close examination there is no lacuna at all. Dates must be attended to with particular care in the EHRCO reports since they use in different places the dates of the European or Ethiopian calendars. (Unfortunately both dates are not put together in the style commonly employed in the early eighteenth century in England when both the Julian and Gregorian calendars were used.) EHRCO’s second report addresses for the first time incidents on “Tahisas 19, 1984”, “Hidar 27, 1984” and “Tahisas 8, 1984”. These are dates towards the middle of 1991. The second report also covers freshly reported incidents said to have occurred on 10 November 1991 and 11 December 1991. It is quite plain that EHRCO intends its reports to be a cumulative and continuing account of the situation in respect of detentions and other human rights violations. The fourth report expressly says so (in section 7) by reference to the third report, which is not in evidence. Again, the detail of the reports is extraordinary - names, categories of detainees, numbers in individual prisons, licence plates of motor vehicles and so on. Whether they are accurate is another matter, but they do provide a mass of information for assessment. In particular, the second report notes the movement of detainees during the relevant period at “Addis Abeba’s famous Ma’ikelawi prison on Mesfine Harer road.” EHRCO’s preliminary statement dated 21 January 1993 on the student demonstration of 4 January 1993 is also most illuminating. Its language is quite flowery, but this contemporaneous document does not suggest that student demonstrators were individually targeted. On the contrary, it suggests that the violence was randomly inflicted.

EHRCO’s fifth report was dated 3 June 1993. It noted for the first time extrajudicial killings of detainees in the South Gonder Administrative Region alleged to have occurred as long ago as February 1992. More importantly, section 15 of this report is devoted to events at Addis Ababa University following the demonstration on 4 January 1993. It states: that after the demonstration the university was closed for an indefinite period; that it re-opened for registration on 5 and 6 April 1993; that during this period eleven students who were members of the “provisional student council” were not allowed to register; that on 14 April 1993 the students presented a petition to the newly appointed president of the university demanding (inter alia) that the members of the student council be allowed to register; that, when these demands were not met, students demonstrating in the science faculty were “not allowed to get out of ... the campus for about three days”, and that “[over] 100 students were arrested and taken to Sandafa and to the Criminal Investigation Department in Addis Abeba”. (Interestingly, Amnesty International’s urgent action appeal dated 25 February 1994 dealing with the journalists’ detention mentioned above refers to “Maikelawi Central Investigation Department prison” as a police station in Addis Ababa.)

In his initial submissions to the Tribunal dated 17 February 1995, Mr Kessels drew attention, by underlining, to this item in EHRCO’s fifth report as ‘[independent] evidence of the existence of [the Student] Council”. What is, of course, once more far more striking, is the way in which EHRCO purported to be able to monitor and report in great detail events at the university soon after they occurred.

Hill J says (at 477) that EHRCO’s first report was not discussed directly in the Tribunal’s reasons. His Honour also remarks (at 477) that it is interesting to contrast what EHRCO’s second report says in an excerpt about the killing of persons allegedly involved in stealing with “some comments” by the Tribunal. It is not clear to me whether these observations are meant as criticism. I do not see how they could be. The Tribunal expressly refers to EHRCO’s first two reports and notes that none of the reports before it mentions the alleged incident in December 1991. This is surely what is significant about EHRCO’s second report in particular. The Tribunal had also earlier recorded Mr Eshetu’s evidence on 21 August 1995 that he did not believe people shot dead in Addis Ababa were looters as claimed by the authorities.

I have set out earlier the passage in his judgment where Hill J says that, “[having] regard to the EHRC response”, the rejection of the idea that student leaders had been killed was “beyond the weight of the evidence and unreasonable”. It should be borne in mind that the record of the telephone conversation made by the Tribunal’s research officer was not confirmed by Mr Melaku Wolfe Mariam or anyone else at EHRCO. The statement that “members of the Student Council had been killed” was quite unspecific and evidently volunteered in answer to a hypothetical question about how someone who had been detained in the circumstances described by Mr Eshetu might be treated, were he to return to Ethiopia. What is clear is that Mr Melaku was not referring to the sequel to the detention of any such members in December 1991 because he denied any knowledge of such an event. In those circumstances, the Tribunal apparently attached such little significance to that part of the information provided by Mr Melaku that it did not refer to it at all in its letter dated 9 June 1995 to Mr Kessels. The Tribunal also omitted any reference to it in its decision statement.

In his response of 6 July 1995 Mr Kessels questioned Mr Melaku’s credentials. This “shoot the messenger” approach had disappeared by 21 August 1995 when the transcript clearly shows Mr Eshetu accepted that Mr Melaku had said EHRCO had no knowledge of the alleged detention in December 1991. This acknowledgment is recorded in the Tribunal’s decision statement.

I am puzzled by Hill J’s final statement (at 486) that it “discounted what the applicant said about the situation in Addis Ababa”. If his Honour meant that the Tribunal totally ignored what Mr Eshetu said, I respectfully disagree. The Tribunal’s statement contains a comprehensive and fair summary of anything vaguely relevant that Mr Eshetu said. On the other hand, if what is meant is that the Tribunal did not accept the truth of everything that he said, then this was, of course, as his Honour earlier acknowledged, a matter for the Tribunal.

This leaves the last element of Hill J’s final observation namely, that the Tribunal “wholly ignored the view of the EHRC representative that it was quite possible that the event would not have come to the notice of that organisation”. The Tribunal’s statement does, in fact, clearly record that view and ascribes it specifically to Mr Melaku. Indeed, it may be noted that, after the receipt of Mr Melaku’s information, the second respondent commenced the hearing on 21 August 1995 by saying:

“I am certainly well aware that not all incidents or arrests or disappearances that occur in a country would be reported.”

The Tribunal remained alert to that possibility throughout its review and said so in its decision statement.

There is, in my view, nothing illogical about the Tribunal’s finding that the events described by Mr Eshetu did not happen. The likelihood that such events would be noticed and reported is plainly something that may be considered in assessing the plausibility of Mr Eshetu’s story. The Tribunal also had available to it material that was not before Hill J or this Court on the appeal. In particular, the Tribunal relied on the Africa Watch report of 8 May 1992 mentioned in its reasons and the fact that no mention of the arrests was revealed by the searches of the Reuters and Nexis data bases. I have mentioned earlier the quality and detail of the reporting from Ethiopia at this time. Mr Eshetu’s story did not involve the detention of a single individual which it may be readily accepted could well escape attention. It involved the detention of twenty-five students, including the whole Student Council save for the Tigrean spy, on the eve of a big demonstration at the Addis Abba University which was a hotbed of political activity. It borders on the fantastic to think that such an occurrence would escape the attention of human rights monitors at the time, especially EHRCO which was at a later time astute to record the registration difficulties of the then provisional Student Council.

Members of the tribunal do not have to be lawyers, and I have no idea why Hill J described the second respondent as “learned”. Judges, of course, recall with comfort what Lord Diplock said in Mahon v Air New Zealand Ltd [1984] AC 808 at 838 about any criticism in a particular case that they may have failed to observe a rule of natural justice. A lay person may not be so sanguine about criticism that her fact-finding lacked logic. Here the labelling of the Tribunal’s decision as unreasonable in a Wednesbury sense was, in my opinion, wrong. For my own part, on the limited materials available to the Court, I would regard a contrary conclusion to that arrived at by the Tribunal on what Mr Kessel’s described as the “crucial incident” as bordering on perverse. I have set out the course of the review in far more detail than usual to show the painstaking way the Tribunal went about its task. I have read carefully too the transcripts of Mr Eshetu’s evidence and they reveal a conscientious and considerate treatment of a distressed man living in a world of emigres swirling with rumours about their native country.

The Judgment at First Instance

However, the fact-finding covering Mr Eshetu’s claims is not a matter for the Court. Hill J said so (at 480) and I respectfully agree. The High Court has recently re-affirmed that it is for the Tribunal to make findings about such past events: Minister for Immigration and Ethnic Affairs v Guo (unreported, 13 June 1997). His Honour then went on to consider (at 485-487) whether the case fell within s 476(1)(a) of the Act as involving a breach of the Tribunal’s obligation to be fair or just. As I have mentioned, despite criticizing the Tribunal’s fact-finding, Hill J dismissed the application.

The Appeal

I have had the advantage of reading in draft the judgments of Davies J and

Burchett J, each of whom holds that the decision of the Tribunal involves an error of law. Davies J (with whom Burchett J agrees) is of the opinion that the Tribunal erred in its understanding of the issues which the definition in the Refugees Convention poses. This is said to be “an error involving an incorrect interpretation of the applicable law” within the meaning of s 476(1)(e) of the Act. Whilst I have the misfortune to disagree with my colleagues on this point, it was not pressed at first instance (as appears from the judgment of Hill J at 480) and I do not see how on any basis Mr Eshetu could, therefore, be entitled to his costs of the proceedings below.

With respect, I can see the force of what Davies J says about first identifying in the usual case the facts that give rise to the subjective fear. However, that need not always be the case. There is always the possibility that a genuine fear is completely irrational. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Brennan CJ, Toohey, McHugh and Gummow JJ refer (at 274 and 275) to the true nature of the Minister’s decision-making function as involving satisfaction that a “person has a genuine fear founded upon a real risk of persecution”. This does not suggest that the subjective element of the mixed test must always be considered ahead of the objective element.

In Guo Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ explain (pamphlet pp 16-17) how findings about past events are ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future. Davies J says that the Tribunal did not seriously enter into a number of questions. With respect, I do no see how any of these matters can have any significance unless the Tribunal took the view that the detention of the twenty-five students took place in December 1991 in the circumstances described by Mr Eshetu. This is the only event propounded by Mr Eshetu that can possibly give him what is termed in Guo a political profile showing that he has come under adverse attention from the Transitional Government. Mr Kessels plainly accepted that a favourable finding on this allegation was crucial to Mr Eshetu’s fear being regarded as well-founded. The review is not an adversarial process and issues are, of course, not defined in any sense by an applicant’s legal advisers. Nevertheless, in the present case I am quite unable to discern any error in approach taken by the Tribunal to the past events about which it had to make findings in order to discharge its function.

Burchett J also holds that the Tribunal incorrectly applied the law to the facts as found by it because it used the word “remote” as a substitution for the “well-founded” test. (This too was not a point argued before Hill J.) Again with respect, I am unable to agree with Burchett J. I have read again what the majority said in Guo (pamphlet pp 13-14) about the additional objective requirement. They emphasize that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate. Like the majority in Wu (at 278), I can discern nothing in the use of word “remote” in the present case to suggest that the Tribunal “abandoned the process of looking to the future which is the essence of the Chan test”.

Section 420 of the Migration Act

Strictly speaking, the observations of my colleagues on the construction of s 420 of the Act and its relationship to s 476(1)(a) and (e) of the Act would appear to be obiter. I notice that in Guo Kirby J does not instance s 420 as providing a procedure of the Tribunal (pamphlet p 30). In the circumstances, I will say no more on this question than I am, with respect, unable to agree with my colleagues and that I agree with the opinion of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported, 6 May 1997).

Conclusion

The appeal should be dismissed with costs.

I certify that this and the preceding fifty-three (53) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Dated: 10 July 1997

Counsel for the appellant:	T.A. Game SC with E.A. Wilkins and G.P. Craddock

Solicitors for the appellant:	Kessels & Associates

Counsel for the respondents:	R.T. Beech-Jones

Solicitor for the respondents:	Australian Government Solicitor

Date of hearing:	14 May 1997

Date of judgment:	10 July 1997

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