FEDERAL COURT OF AUSTRALIA

Abila v Minister for Immigration & Multicultural Affairs [2001] FCA 1186

MIGRATION – protection visa – application for review of the decision of the Refugee Review Tribunal – no evidence ground – non-existence of a fact – applicant must establish that decision of the RRT was based upon a fact, that there was no evidence of that fact before the RRT, and that the fact is disproved – whether applicant is a member of a particular social group – whether those opposed or unwilling to participate in guerilla activity constitute a particular social group.

WORDS AND PHRASES – “the existence of a particular fact”, “particular social group”

Migration Act 1958 (Cth) s 476(1)(g) and (4)

Charaev v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 554 distinguished

Yilan v Minister for Immigration and Multicultural Affairs (1999) 55 ALD 600 referred to

Guden v Minister for Immigration and Multicultural Affairs (2000) 58 ALD 352 distinguished

Kheirollahpoor v Minister for Immigration and Multicultural Affairs [2000] FCA 1350 not followed

N258/00A v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 478 applied

Perchine v Minister for Immigration and Multicultural Affairs [2001] FCA 168 referred to

Aung v Minister for Immigration and Multicultural Affairs [2000] FCA 1562 referred to

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 applied

Harirchi v Minister for Immigration and Multicultural Affairs [2001] FCA 474 considered

PAUL ABILA v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 151 of 2001

TAMBERLIN J

SYDNEY (HEARD IN PERTH)

28 AUGUST 2001

THE COURT ORDERS THAT:

The application 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                     The applicant claimed to be citizen of Uganda and sought protection as a refugee on the ground that if he is returned to that country there is a real chance that he will be persecuted for reasons of his Nubian ethnicity.  The applicant arrived in Australia on 13 May 2000 and lodged an application for a protection visa, which was refused on 12 February 2001 by a delegate of the Minister for Immigration and Multicultural Affairs.  An application for review was made to the Refugee Review Tribunal (“the RRT”) pursuant to the Migration Act 1958 (Cth) (“the Act”).  On 26 April 2001, the RRT affirmed the decision of the delegate not to grant a protection visa to the applicant.

2                     The relevant background claims and country information are set out in the RRT reasons for decision.  There is no need to repeat them for the purpose of the present application.

3                     The decision-maker concluded that the applicant had not given a true account of what happened in Uganda prior to his departure.  The applicant claimed before the RRT that his father had been taken by guerilla forces in 1996 and was never seen again.  The applicant said that he believed that the guerillas killed his father.  He said that his mother had told him at the time of the attack on his village in 1996 that the guerillas had done the same thing many times before but that this was the first time they had come to the applicant’s village.  In 1997, more than half a year after the 1996 attack, the applicant said that the guerillas attacked his village and started killing people and burning houses, including his family’s house.  The last time he saw his mother was when they were running away from the village when the guerillas attacked and started burning houses and stabbing and killing people. 

4                     The decision-maker considered that the applicant’s account of what happened to his family in Uganda in 1996 and 1997 could not be believed.  The decision-maker referred to independent information indicating that there had been violent rebel groups operating in Uganda for many years, but said that there was nothing to indicate that attacks such as those the applicant had described had occurred in the area he claimed to be from, which was located about seventy kilometres east of the capital Kampala.  Whilst it was accepted that rebel activity occurred in the north, west and south west of Uganda, there were no reports of any such activity as the applicant described in the south eastern part of the country, where the applicant claimed to have lived.  The only report of rebel activity in the south east concerned a bomb blast in Kampala in 1999.  The decision-maker considered that there was no information to support the applicant’s suggestion that such incidents as that which he claimed to have occurred in his village would not have been reported.  She said that the evidence indicated that freedom of the press is generally respected in Uganda and she did not accept that there would have been constraints on the reporting of rebel violence.  This was considered to be so because the applicant’s evidence indicated that what had happened was not an isolated attack and that it was very brutal.  The decision-maker considered that such an attack would have been of major concern to the government and would have led to a significant deployment of security forces.  In view of this, it was considered that such activity would have come to the attention of international observers who have reported incidents occurring in other parts of the country.  The decision-maker pointed to inconsistencies in the applicant’s various accounts of what had transpired, but discounted the importance of these inconsistencies as being explicable.  The decision-maker found that the applicant had not provided credible evidence about what happened in Uganda but was prepared to proceed on the basis that the applicant had come from Uganda.

5                     The decision-maker said, 13-14, that:

“The applicant claims to fear that rebels will harm him if he were to return.  If the applicant was from the north, west or south west of the country, it would be understandable that he could fear returning because of the rebel activity: the rebel groups have perpetrated terrible violence against civilians. I could also understand that as a strong young man he might fear that he could be pressed to join a rebel group and face harm if he refused.  But the applicant has not been anywhere near these parts of Uganda and there is no reason why he would do so if he were to return.  My assessment of the independent information about the rebels and the government response to their actions indicates to me that it is very improbable that rebel activity of the kind seen in the north, west or south west of the country will move east to the districts around the capital where the applicant claims to have lived.  I do not consider that there is a real chance that the applicant would face harm at the hands of the rebels if he were to return to Uganda.”

6                     The decision-maker did not accept that the applicant’s race provided any objective reason for his fear.  She referred to his evidence to the effect that what he says occurred in 1996 and 1997 could have happened to anyone who was there. The decision-maker pointed out that the only information which suggested that the Nubi can face harm concerns some of them in the north of the country who are often Muslim and in militia groups suspected of having supported Idi Amin.  In the absence of any other information about any discrimination or mistreatment of Nubi people in other parts of the country, and in light of the applicant’s own evidence about the implications of his ethnicity, the decision-maker did not consider that the applicant’s Nubian ethnicity would lead him to face persecution if he were to return.   The decision-maker found that the applicant’s evidence about his life in Kenya on the streets was generally credible, though confused in some respects.  She observed that it was understandable that the applicant would choose to set out on a voyage to a place which might be better than living his life on the streets of Mombasa.

7                     The applicant was assisted in the presentation of his case by written submissions from senior Counsel.  The Court appreciates these submissions because they served to highlight the issues for consideration.

8                     The substance of the submissions was that there was no evidence to justify the RRT’s conclusion that the applicant’s father was not taken by guerilla forces in 1996 and never seen again, presumed killed, and that the applicant’s village was not attacked in 1997 by guerillas, who killed people and burnt houses, including his family’s house.  It was also said that an absence of evidence of a limited kind concerning a fact is not logically capable of establishing that the fact did not occur: Charaev v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 554 at [21].  It was submitted that the RRT made the findings because it concluded that it had obtained no published information which suggested that guerilla activity had occurred in the area of the applicant’s village and that the absence of such published information could not possibly justify the findings made.  It was said that the RRT did not reject the applicant’s own evidence as incredible and recognised that apart from the main rebel groups in Uganda, other smaller groups emerged from time to time.

9                     The second group of submissions made was that the applicant belonged to a particular social group, that is to say, “those opposed to or unwilling to participate in guerilla activity”.  Further, it was said that there can be fear of persecution where there are fears by reasons of one or both of race or membership of a particular social group, without the applicant being able to demonstrate that it was necessarily one reason to the exclusion of the other.

Reasoning

10                  Section 476 of the Act relates to applications for review and provides:

“(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:

…

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

11                  Subsection 476(4) elaborates on the ground in paragraph (1)(g) as follows:

“(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.”

12                  Counsel for the respondent Minister submitted that the “no evidence” ground specified in s 476(1)(g) and (4) quoted above was not engaged by the applicant’s submissions.  This is because the ground asserts that there was no evidence to justify the finding that the applicant’s father was not taken by guerilla forces in 1996 and never seen again and that the applicant’s village was not attacked in 1997 by guerillas who killed people and burnt houses, including his family’s house.  The Minister’s submission was that the applicant’s reliance on the “no evidence” ground must positively establish that the “fact” did not exist by admissible evidence.  The ground of review referred to above does not apply, it was further submitted, to findings of the non-existence of facts.  It was then submitted that even if the applicant established the requirements of s 476(4)(b), it was also necessary to establish that there was no evidence or other material to justify the making of the decision as required by s 476(1)(g).  The decision was said to be that the protection visa would be refused because the applicant did not have a well-founded fear of persecution for a Convention reason, and the Minister submitted that it could not be said that there was no evidence or other material to justify the making of that decision.

13                  The fist question to be addressed is whether s 476(1)(g) can apply where the decision is based on the non-existence of a particular fact rather than on the existence of the fact.  In the present case, the decision turns on the non-existence of the alleged occurrences in 1996 and 1997. 

14                  Although the question was adverted to in Yilan v Minister for Immigration and Multicultural Affairs (1999) 55 ALD 600, it has not subsequently been the subject of detailed consideration by a Full Court. In that case, the Full Court drew attention to the question whether s 476(1)(g) could “apply to a finding that a particular event did not happen” but it was not necessary in that case to resolve the question.

15                  In the subsequent decision of Guden v Minister for Immigration and Multicultural Affairs (2000) 58 ALD 352 the Full Court, at [15], referred to:

“[T]he clear distinction between establishing that there was no evidence or other material to justify the making of the decision because the person who made the decision based their decision on the existence of a particular fact and that fact did not exist, which is reviewable under s 476(1)(g), and a claim that the Tribunal should not have made the finding of fact which it did which, in general terms, is not reviewable.”

In that case, the RRT had stated that:

“[I]n his initial submissions, the applicant made no claims of being politically active until he joined HADEP.”

The Full Court said that “the fact” which did not exist was “the fact” that the appellant was required to set out the whole of his case which bore on the issue of his political persecution in his initial submissions, and that he had not satisfied this requirement.  That was an incorrect approach by the RRT in the view of the Court.  This was a curious result because the questions as to what is required to be set out in answer to a question in an application form is essentially one of law or construction and not one of fact.  The Court, however, was satisfied that this error fell within s 476(1)(g) and 4(b). 

16                  It also reached a similar conclusion in relation to the RRT’s statement that:

“His claims to be an office-holder were not made in his initial submissions and, given the enhanced public profile that holding high office in an active and legal political party would most likely bring, it is not credible that such information would have been overlooked in setting out the basis of the claim to be a refugee.” 

The Court found, at [19], that:

“It was not correct for the Tribunal to say that his claims to be an office-holder were not made in his initial submissions or that such information was overlooked by him.”

This was because the applicant’s initial submissions referred to providing documentation as to his position as vice-president of HADEP.  The RRT’s factual error therefore came within s 476(4)(b).

17                  There was no discussion in Guden of the issue of whether the no evidence provision could apply in circumstances where a conclusion is reached that a fact did not exist as opposed to a situation where the conclusion is that a fact did exist.  It is true that the case proceeded on an assumption that the provisions applied where it was decided that specified facts did not occur but the question was not specifically argued or examined.  In any event, the case is distinguishable from the present because there was clear evidence that the reference in the application to his vice-presidency was contrary to the RRT’s assertion that he had not made such a claim in his initial submissions.

18                  In Kheirollahpoor v Minister for Immigration and Multicultural Affairs [2000] FCA 1350, Carr J, although finding part of the reasoning of the Full Court “difficult to understand”, regarded himself as bound by the assumption made in Gudenthat a conclusion as to the non- existence of a fact fell within the no evidence ground: at 11.  In so doing, his Honour declined to follow the decision of Katz J in N258/00A v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 478, where Katz J concluded, at 483-486, that the no evidence ground did not apply to findings of the “non existence” of a fact.  His Honour said, at 486:

“ … I conclude that s 476(1)(g) of the Act does not apply to findings of the non-existence of facts.  In order for the paragraph so to apply, it would be necessary to give an extremely strained construction to the language actually used in it (as well as to the language actually used in both limbs of s 476(4) of the Act).  Furthermore, there appears to be no reason of policy justifying the giving of such a strained construction to the provision.  The giving of that construction to the provision would appear to amount to a departure from the longstanding distinction made in the law (including in administrative law) between finding a fact to exist when there is no evidence that that fact does exist (which is an error of law) and not finding a fact to exist when there is some evidence that that fact does exist (which is an error of fact only).  Such a  strained construction of the provision would thus involve this Court in an intrusion into the merits of the administrative decisions under review by it under the Act.”

19                  The approach of Katz J to the no evidence requirement was subsequently applied in Perchine v Minister for Immigration and Multicultural Affairs [2001] FCA 168 at [19]-[20].

20                  Although the existence of the construction question of whether the no evidence ground could apply to a finding that a particular event did not happen was adverted to by the Full Court in Yilan, there was no reference to this authority in the decision of the Court in Guden.

21                  In my opinion, the better view in relation to s 476(4)(b) is that of Katz J in N258/00A,which his Honour later applied in Aung v Minister for Immigration and Multicultural Affairs [2000] FCA 1562 at [38]-[39].  If the reference to “a particular fact” in s 476(4)(b) included the non-existence of a fact, then the provision would read along the following lines:

“A person who made the decision based the decision on the existence or the non-existence of a fact and that existence or non-existence did not exist.”

22                  I agree with Katz J that this is, to say the least, a somewhat strained interpretation on a reasonable reading of the words of the subsection, which refer to the existence of a particular fact. It requires a conclusion that the particular fact which has been found not to exist does exist.

23                  It is true that in many cases it is possible to rephrase a finding in either a negative or positive form.  However, if the draftsperson had intended to include a finding of the non-existence of a particular fact within the expression “the existence of a particular fact” in s 476(4)(b), then it would have been a relatively simple matter to make this convoluted usage clear in drafting the section.

24                  Because the Full Court in Gudendid not address the specific problem of whether s 476(4)(b) could encompass the non-existence of a fact and since there is no reasoning directed to this question, unlike the discussion of Carr J in Kheirollahpoor, I do not consider that a single Judge is bound on this aspect by the conclusion in Guden.

25                  Accordingly, in my view, the applicant cannot succeed on the no evidence ground.

26                  In submissions prepared for the applicant reference was made to Charaev.  That case is plainly distinguishable from the present case because it turned on its particular facts.  The conclusion of the RRT in that case was based on the view that the appellant must have left his employment voluntarily because there was no entry in an employment book.  The Court pointed out that the mere absence of such an entry was equivocal and was not itself capable of establishing the manner in which the appellant’s employment was terminated and that, therefore, there was no evidence before the RRT of the circumstances of the termination of the appellant’s employment. 

27                  In the present case, there was evidence to which the RRT adverted in its decision from which an inference could be drawn that the fact in question did not exist.  More specifically, the decision-maker referred to the fact that the evidence indicated freedom of the press was generally respected in Uganda, that the type of attack referred to by the applicant was not an isolated attack and would have led to a significant deployment of security forces and would have come to the attention of international observers which had reported on other incidents in other parts of the country.  The decision-maker referred to information that there had been violent rebel groups operating in Uganda for many years but did not indicate that attacks such as those the applicant described had occurred in the area he claimed to be from, which was only seventy kilometres east of Kampala.  Reference was made to the absence of reports of rebel activity in the south eastern part of the country, where the applicant claimed to have lived, apart from some rebel activity leading to a bomb blast in Kampala in 1999.  In addition, it is clear that the decision-maker had doubts as to the credibility of the applicant.  In other words, there was evidence available from which the non-existence of the events of 1996 and 1997 could be inferred so that the case is not one of no evidence as in Charaev. 

28                  Furthermore, even if the grounds set out in s 476(4)(b) are made out, that is not the end of the matter.  Under s 476(1)(g) it is necessary to address the broader question of whether there was evidence to justify the making of the decision.  In the present case, the decision was that the visa would be refused because the applicant did not have a well-founded fear of persecution for a Convention reason if returned to Uganda.  There was evidence to support this conclusion.  This included independent information that suggested that Nubi might face concerns in the north of the country, where Nubi were often Muslim and in militia groups.  These considerations did not apply in the case of the applicant.  Moreover, the applicant’s evidence was that what he claimed to have happened, namely the incidents in 1996 and 1997, could have happened to anyone who was there.  From this material, an inference was open that the incident happened regardless of the applicant’s Nubian ethnicity.  Accordingly, there was evidence on which to base the decision. 

29                  The second submission for the applicant was that the RRT’s findings were capable in law of constituting a fear of persecution for reasons of race or membership of a particular social group, which was described as a group comprised of “those opposed to or unwilling to participate in guerilla activity”.

30                  In my opinion, this description does nor delineate any social group within the meaning of the definition of a “refugee”.  It does not designate a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large.  Nor can a common fear of persecution on its own amount to a relevant description of a particular social group: see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 241.  In that case, McHugh J said, at 264:

“The use of that term [a membership] in conjunction with ‘particular social group’ connotes persons who are defined as a distinct social group by reason of some characteristic, attribute, activity, belief, interest or goal that unites them. If the group is perceived by people in the relevant country as a particular social group, it will usually but not always be the case that they are members of such a group.  Without some form of internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals, however, it is unlikely that a collection of individuals will or can be perceived as being a particular group.” (Emphasis added)

31                  In Harirchi v Minister for Immigration and Multicultural Affairs [2001] FCA 474, Marshall J rejected as a relevant group persons described as:

“very able persons who had political views or affiliations opposed to those of the government of Iran.”

32                  The description contended for in the present case does not, in my view, satisfy the criteria described in Applicant A. Opposition or unwillingness to participate in guerilla activity might arise for a great variety of different reasons, such as disagreement with the objectives of that activity, family concerns, religious beliefs, personal convenience, fear, infirmity, inablility or ill health, to mention just a few.  It cannot be said that there is any common unifying or internal connection between members of a group so described in the context of the Refugees Convention as amended by the Refugees Protocol which defines “refugee”.

33                  Finally, there was a finding based on an assessment of independent information by the decision-maker about the rebels and the Government’s response to their actions, which indicated that it was very improbable that rebel activity of the kind seen in the north, west or south west of the country would move east to the districts around the capital, Kampala, where the applicant claims to have lived.  It was not considered that there was any real chance that the applicant would face harm at the hands of the rebels if he were to return to Uganda.  In other words, there was a finding of a ‘safe haven’.

34                  For the above reasons, I am not satisfied that any reviewable error has been disclosed in the reasons of the RRT in the present case.  I therefore dismiss the application with costs.

Associate:

Dated:              28 August 2001