FEDERAL COURT OF AUSTRALIA

Habtegebriel v Minister for Immigration & Multicultural Affairs [1999]

FCA 1470

MIGRATION – application for review of decision of Refugee Review Tribunal refusing to grant protection visa – credibility of the applicant’s evidence – lack of supporting independent evidence – problems with interpreter at hearing

Migration Act 1958 (Cth) s 476(1)

1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees Article 1A(2)

HABTEGEBRIEL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 837 OF 1998

TAMBERLIN J

SYDNEY

28 OCTOBER 1999

THE COURT ORDERS THAT:

1.         The application for review is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Refugee Review Tribunal (“the RRT”) which affirmed a decision of a Ministerial delegate not to grant a protection visa.

2                     The applicant is an Ethiopian national who arrived in Australia on 13 April 1998. Shortly after arrival he lodged an application for a protection visa on the basis that he was a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (the “Convention”).  Article 1A(2) of the Convention defines a refugee as any person who:

“… owing to a 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 …”

3                     The applicant is twenty-nine years of age.  He is married with one son and his wife and child remain in Ethiopia.  He is of a Amhara ethnicity and his language is Amharic.  He undertook theological studies at a monastery, south of Addis Ababa, and at the end of nine months he was known as a gospel preacher.  He undertook missionary work in Addis Ababa, both before and after his graduation from theological college, preaching in various churches.  He carried out further studies and was given a preacher’s certificate.

4                     In his preaching the applicant said that he condemned the division, disunity, and racial hatred being promoted by the regime in power.  The applicant also opposed the Government’s intrusion in the Church’s administration.  He says that the Government is causing the replacement of senior Amhara Church figures.  The applicant says that his preachings were monitored and that on one occasion whilst preaching he was interrupted and told that he was making statements that insulted the Government.  A special protection force was called to apprehend him.  He claims to have been taken to a police station  where he remained for two days in a cell.  He said that on the third day, he was taken to an office where there were three men in plain clothes who told him that he could continue to preach, but that he must not oppose or insult the Government or he would be in great trouble.  He then signed an undertaking under duress. 

5                     The applicant says that in about August 1993, one of those persons monitoring his behaviour claimed that a sermon of his implied that the Government and the Church were run by Satan.  He says that he was taken to a police station and left in a dark room for twenty days, and on the twenty-first day he was taken to a room for interrogation and was told that he would not be allowed to preach any more.  He was then sent back to the dark room for a further five days.  He eventually found someone to be a guarantor for him and was told that if he ever preached again he would have big problems.  He said that he was then banned from entering a churchyard and preaching. 

6                     In late 1993 or 1994, the applicant claimed that he went to see a religious hermit known as Gebre-Meskel to hear him preach.  Authorities interrupted the preaching and arrested a number of participants including the applicant.  He says that they were forced into buses and taken to a military training camp.  He says that he remained in a hall under detention for six months before being released.  The preacher, Gebre-Meskel, is said to have remained in prison at least to the date of the hearing by the RRT. 

7                     The applicant on returning home found that his son had been removed from the Church school and was not permitted to attend, and that his wife had been fired from her position with a government organisation.  The applicant continued to preach in people’s houses three times per month.

8                     The applicant states that since his arrival in Australia he has received letters from friends indicating there have been people in civilian clothes surveying his home and questioning his parents.  He says that the authorities are apparently annoyed that the applicant and his colleagues managed to get out of Ethiopia under the pretence of competing in the Canberra marathon. 

9                     Two witnesses gave evidence for the applicant before the RRT.  One of the witnesses last visited Ethiopia in 1994 for two months and stated that there was much dissatisfaction in Ethiopia with the Patriarch of the Church who was perceived as being an agent of the Government.  The other witness gave evidence as to the fine work which the applicant has carried out in Australia with the Amhara community and the Church.  The RRT member found that in his position at St Mary’s Ethiopian Orthodox Church, it is clear that the applicant is playing an extremely valuable role in the spiritual life of the Ethiopian community in Sydney and that it is unlikely that there are others in Sydney who have the background to replace him.

The RRT

10                  The RRT member summarised the applicant’s claims as follows.  His central claim is that he will be harmed by the authorities if he returns because he is an outspoken preacher who has attracted the attention of the authorities.  This is claimed to be demonstrated by the fact that the applicant has been detained on three occasions.  The Convention ground is a combination of religious and political opinion in that the applicant says he is targeted by the authorities because they do not approve of the religious views that he is expressing, and they do not accord with those of the Patriarch of the Church who is closely aligned with the Government.  Second, the applicant claims that given he has a significant involvement with a dissident branch of the Ethiopian Orthodox Church in Australia, and there is a real chance that this involvement would become known to the authorities in Ethiopia thereby increasing the risk when he returns.  The third claim is that the applicant faces harm owing to the fact that he failed to return to Ethiopia and has sought to stay abroad and this is likely to have come to the attention of the authorities.

11                  In relation to credibility, the member accepted the applicant’s evidence in relation to his religious training and his involvement in the Church in Ethiopia.   This he found to be supported by the applicant’s significant involvement with St Mary’s Ethiopian Orthodox Church in Australia.   He accepted that he is a preacher, that he is of Amhara ethnicity and that he supports that faction of the Church in Ethiopia opposed to the current Patriarch.  He also accepts the applicant’s general account of the division within the Church, and of government intervention with respect to some dissident preachers in Ethiopia.

12                  The RRT saw the central issue in these terms:

“The issue for the Tribunal’s consideration is whether the applicant was targeted by the authorities in the manner that he describes and in particular whether the applicant was detained by the authorities on three occasions in the circumstances that he describes.”

13                  The RRT dealt firstly with the third detention, which concerned his arrest during an event at which Gebre-Meskel was preaching.  The RRT did not accept that this occurred and did not accept the general involvement of the applicant with Gebre-Meskel.  This was said to be because his evidence was contradictory and shifted significantly.  Some examples were given.  In particular, the RRT found that the applicant gave contradictory evidence on whether or not he had had direct contact with Gebre-Meskel.  A further problem with this alleged detention was said to be the complete lack of independent evidence in relation to the incident.  Accordingly, the RRT was not satisfied as to the applicant’s evidence in relation to this claimed detention. 

14                  There were two other detentions relied on.  References were made by the member to a contradictory account as to what occurred in relation to the first detention.  Taking into account discrepancies in the applicant’s account of both alleged detentions, and what the member considered to be the improbability of the scenarios, as well as the lack of credibility in the applicant’s account of the third occasion, the member was not satisfied that the first and second detentions took place.  The member relied on independent evidence to support this conclusion.  In the context of this evidence, he thought it inherently implausible that a newly graduated preacher from theological college without any congregational following, would have aroused the attention of the authorities in the way described by the applicant.  The RRT did not accept that there was a real chance that the applicant would suffer harm if he returned to Ethiopia. 

15                  The member then proceeded to reject the other claims made by the applicant.  He found that there was no evidence to suggest that clergy of the Ethiopian Orthodox Church outside Ethiopia who are not supportive of the Patriarch per se, are at risk of harm from the authorities should they return.  He therefore concluded that the applicant’s involvement in the Church in Sydney could not put him at risk should he return.  Finally, the member found on the evidence that the applicant would not be at risk on return to Ethiopia as an unsuccessful asylum seeker. 

16                  The RRT member concluded that the applicant did not have a well-founded fear of persecution on the basis of any Convention ground should he return to Ethiopia.

The present application

17                  The applicant submits that the assessment of his case concentrated more on semantics than dealing with the essential question.  For example, he refers to the evidence about having no direct contact with Gebre-Meskel.  He submits that the interpretation of his statement about meeting Gebre-Meskel was not seen by the member in the light of the actual situation in Ethiopia in the religious and social spheres.  He also takes issue with the statement of the member that if Gebre-Meskel had been detained there would be some evidence of it and there was a lack of independent evidence.  The applicant says that he could not get resources to find all the independent written evidence to support his argument and that he should have the benefit of the doubt.

18                  In addition, the applicant submits that the interpreter, who appeared at the RRT hearing, was not competent enough to bridge the language gap between the RRT and the applicant. He submits that this misunderstanding contributed significantly to the adverse findings as to credibility made against him.

19                  The interpretation submission was made at the initial hearing of the application before this Court.  The matter was adjourned and arrangements were made for a second Amharic interpreter from the Translation and Interpreting Service to listen to specified parts of the tapes of the hearing before the RRT and to provide an opinion as to the accuracy of the translation.  This second interpretation was carried out by Mr Yiman, who furnished a report of 19 August 1999.  He spent approximately seven hours over two days going through parts of the tapes and recording his opinion.  His brief was to indicate whether, in his opinion, the interpretation was accurate. I am satisfied that Mr Yiman has the necessary qualification to express such a view.

20                  Mr Yiman points out that the statements by the interpreter on the tape were hard to grasp due to a very low voice and poor construction of the sentences.

21                  A complaint is made by the applicant as to the interpretation of the original interpreter in the following exchange:

Tribunal:         …you were taken to the police station; is that the same police station that you had been taken to previously?

Answer:           Yes.

Tribunal:         And you were then interrogated?

                        (Translation in indistinct voice)

Answer:           I was locked up in the dark room.

Tribunal:         But were you interrogated at any stage?

(Translated originally as – ‘Have they intimated you? Have they tortured you?’)

Answer:           Keeping me in the dark room in a solitary confinement is more torturing than intimidation.  There was no one talking to me.  I was talking to myself.  That was a big punishment for me.

Tribunal:         But were you interrogated, as well? 

                        (Translated as ‘In addition to that, have they done anything (implying physical torture) to you in that dark room?’)

Answer:           No.

Tribunal:         The statement says that on the twenty-first day they took me to another room for interrogation …

                        (Translated as: ‘Have the police taken you to a room and asked you about the government and the country?)

Answer:           Yes.

22                  The applicant submits that the above exchange indicates that he had been the victim of an incompetent interpreter, and this led to the RRT being put on guard as to the credibility of the applicant.  In turn, the applicant submits that it was because of the conflicting information provided as a result of the misunderstanding and incompetent interpretation that an adverse view was formed.

23                  I accept the evidence of Mr Yiman that he agreed that the question “Have you been interrogated?” was interpreted as “Have you been tortured?”, to which the answer was “No”.  However, Mr Yiman considered that after repeated questions of the original interpreter, the applicant finally understood that the question was different and that he was actually being asked whether he had been interrogated.  After the question became clear the applicant then answered “Yes”.  There were other matters in respect of which Mr Yiman found that the translation had not been accurate, but I do not think these of sufficient importance to disclose any error in the RRT decision on credibility in particular.  For example, in one instance the RRT member said “the Tribunal sought evidence of incidences …”.  Mr Yiman interpreted the translation as “The tribunal has obtained evidence of incidences …”.

24                  I accept that there have been some misinterpretations by the original interpreter, but I am not persuaded that these misinterpretations are sufficient to warrant the setting aside of the findings of credibility made by the RRT member. This is because the RRT made its findings on the basis of country information and other evidence independent of these particular failures of communication.  In addition, the RRT refers to a number of contradictions which it found in the evidence apart from the matters to which the applicant refers.  Finally, the RRT had the benefit of seeing and evaluating the force and reliability of the applicant’s evidence, which this Court does not.

25                  The question of credibility is essentially one of fact in this particular case and I am not satisfied that any error has been disclosed as to the way in which the RRT approached its task or that there is any reviewable error in the decision.  I am satisfied that the applicant had a full opportunity to present his case before the RRT and that there has been no procedural unfairness in the conduct of the proceeding.  I am also satisfied that due consideration was given in the RRT to the substance of the applicant’s case.

26                  In addition to the question of credibility, the applicant also sought to rely on other material which was not before the RRT.  This application for review is not a re-hearing and the additional evidence is not admissible in determining whether as at the date of the determination by the RRT the requirements for refugee status had been satisfied.  Accordingly, I rejected this evidence.

27                  I note that the RRT found that the applicant, in his position at St Mary’s Ethiopian Orthodox Church, is playing an extremely valuable role in the spiritual life of the Ethiopian community in Sydney.  It also considered that it would appear unlikely that there are others in Sydney who have the background to replace the applicant in this role.  The material before the RRT which has been furnished to me amply illustrates the correctness of this conclusion with which I agree.  No doubt, the important role of the applicant will be taken into account on any application which may be made under the Migration Act 1958 (Cth), and in particular under s 417 when consideration is given to the public interest of the Ethiopian community.

28                  For the above reasons, however, the application for review must be dismissed with costs.

Associate:

Dated:              28 October 1999