FEDERAL COURT OF AUSTRALIA

Mwakaya v Minister for Immigration and Multicultural Affairs [2000] FCA 1637

MIGRATION – refugee – appeal by applicant for protection visa against primary judge’s finding that the Refugee Review Tribunal’s decision did not disclose any error of law – where appellant’s primary complaint relates to Tribunal’s failure to accept his factual account – consideration of importance of Tribunal’s role in assessing a claimant’s credibility.

Migration Act 1958 s 476

Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 - cited

ABDALLA KHAMISI MWAKAYA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 108 of 2000

SPENDER, LEE, CARR JJ

1 DECEMBER 2000

PERTH

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.         The appellant pay the respondent’s costs of and incidental to the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1                     SPENDER J:  Mr Mwakaya is a citizen of Kenya who arrived in Australia on 4 September 1999.  He lodged an application for a protection visa, under a different name, with the Department of Immigration and Multicultural Affairs on 1 October 1999.  A delegate of the respondent made a decision to refuse to grant a protection visa to Mr Mwakaya on 18 February 2000, and on 23 February 2000 he made an application to the Refugee Review Tribunal (the Tribunal) for review of the delegate's decision.

2                     Following a hearing on 28 March 2000, the Tribunal made a decision on 7 April 2000 affirming the delegate’s decision not to grant a protection visa to Mr Mwakaya.  On 28 April 2000 Mr Mwakaya lodged an application with the Perth registry of the Federal Court seeking review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958.  On 16 June 2000 his Honour French J handed down a reserved decision in which his Honour concluded that the Tribunal's reasons for decision did not disclose any error of law and the application must be dismissed with costs.

3                     In the first ground of appeal to this court Mr Mwakaya claims that the judgment did not consider the relevant immigration laws concerning the definition of "refugee" in the refugees convention.  That ground of appeal is understood to mean that the primary judge erred when he failed to find that the Tribunal did not consider the correct and relevant immigration law.  The Tribunal's reasons for decision demonstrate that the Tribunal correctly interpreted the applicable law in arriving at its decision.

4                     The second and third grounds of Mr Mwakaya's appeal are “There was no evidence or other material to justify … the making of the decision that the applicant did not have a well-founded fear of persecution by reason of his political opinion real or imputed” and “the possibility of just disappearing is a danger for a returned asylum-seeker in Kenya.”  The Tribunal's decision in fact was the consequence of its reasoned rejection of Mr Mwakaya's claims.  **INFO TO BE KEYED IN BY TYPIST FOR COORDINATION PURPOSES**

TYPIST INITIALS:       JMH

TAPE NUMBER:       4

TIME OF TAPE:  (eg 10.35 am)    3.13

LAST WORDS PREVIOUS TAPE:  claims

LAST WORDS SPOKEN BY:    Spender J

WITNESS:  (eg H. LEE  XN)   

CHECKED BY:         NJ ready

5                     Mr Mwakaya claimed before the Tribunal that he was afraid to return to Kenya because he had been persecuted by reason of his political opinion and religion in Kenya.  He couldn't live safely anywhere in Kenya.  Persecution of members of the Islamic Party of Kenya (IPK) and Muslims continues in Kenya.  He is also afraid of being returned because he was ordered to and did not report to the police and he fled Kenya illegally.  The Tribunal found:

“I am satisfied that he has not been persecuted nor there is a real chance he will face persecution for reason of his religion upon return to Kenya.” 

6                     The Tribunal said:

“I note the applicant has no significant profile unlike his father who he claims was a treasurer of the IPK.  The applicant, who has been away from Mombassa nearly 5 years, has had no current involvement in IPK and never had a significant political profile.  I do not accept that either his father's death or his previous involvement in the IPK now gives rise to a well-founded fear of persecution for this applicant.”  

7                     The Tribunal gave reasons for its rejection of Mr Mwakaya's other claims and concluded:

“Having considered the evidence as a whole, the Tribunal is not satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.” 

8                     The primary judge, having reviewed in detail the reasons of the Tribunal, concluded:

“I am of opinion that the findings made and the analysis undertaken by the Tribunal was in accordance with the test for refugee status which it was required to apply under the Migration Act 1958 (Cth) and the Convention.  No error of law having been disclosed, the application must be dismissed with costs.” 

**INFO TO BE KEYED IN BY TYPIST FOR COORDINATION PURPOSES**

TYPIST INITIALS:       MD

TAPE NUMBER:       5

TIME OF TAPE:  (eg 10.35 am)    3.20 pm

LAST WORDS PREVIOUS TAPE:  Gitunga interprets

LAST WORDS SPOKEN BY:    Interpreter

WITNESS:  (eg H. LEE  XN)   

CHECKED BY:         NJ ready

9                     Mr Mwakaya appeared for himself with the aid of an interpreter both before French J and before this court.  To this court, his complaint really amounts to one that the Tribunal did not accept that what he said was true.  He said to us that his father had been tortured and killed and that if he was returned to Kenya he would be detained and would suffer death or persecution.

10                  It is for the Tribunal and not for the Federal Court to assess the credibility of the appellant's claims.  As McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 403, a finding on credibility is:

“…the function of the primary decision‑maker par excellence.”

He continued:

“If the primary decision‑maker has stated that he or she does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed.”

Further:

“The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.  In any event, the reason for the disbelief is apparent in this case from the use of the word ‘implausible’.  The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.”

11                  That important observation, that findings on questions of credibility are the function of the Tribunal, with the consequence that in general the Federal Court has no power to review such findings, explains the really important function of the Tribunal.  If the Tribunal "gets it wrong" in disbelieving a claimant's account, the consequences for that person can be very serious indeed. 

12                  Of no less importance is the fact that if the Tribunal gets it wrong in disbelieving a claimant's account and that person is returned and suffers death or serious harm for a convention reason as a result, there has been a failure by Australia to meet its international obligations.  Such failure might deservedly attract not only criticism but condemnation by the international community. 

13                  The correctness of the Tribunal's finding on credibility in each case is thus of paramount concern because there is no realistic opportunity for review of such a finding.  No error of law having been demonstrated in the primary judge's judgment, however, the appeal must be dismissed with costs.

14                  LEE J:   I agree and have nothing further to add.

15                  CARR J:   I agree that this appeal should be dismissed.  The appellant was not legally represented at the hearing of this appeal but addressed the court through an interpreter.  He asserted that the Tribunal had been biased against him.  This was not a ground of his application at first instance, nor is it a ground of his appeal.  There was no evidence of bias on the Tribunal's part before the primary judge.  In any event, the assertions of bias were either matters of alleged denial of procedural fairness or complaints that the Tribunal had not accepted his claims to be a refugee.  French J said that he had given anxious consideration to the reasons of the Tribunal.  I have done the same.  In my view, his Honour was correct in holding that no reviewable error by the Tribunal was disclosed.  I would dismiss the appeal with costs.

Associate:

Dated: