FEDERAL COURT OF AUSTRALIA

 

 

Kalala v Minister for Immigration & Multicultural Affairs [2001] FCA 1594

immigration – appeal – review of decision of Refugee Review Tribunal (“the Tribunal”) affirming refusal to grant protection visa – Tribunal uncertain about information in a newspaper article – need for Tribunal to be satisfied of something that may be constituted by a mere, although a real and substantial, possibility – whether Tribunal should have applied “real chance” analysis – onus of proof – need for Tribunal to consider any possible grounds of Convention related persecution raised by material before Tribunal even if not advanced by applicant.

Migration Act 1958 (Cth), ss 65, 476(1)(e), 481(1)

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

Abebe v Commonwealth of Australia (1999) 197 CLR 510, applied

Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220,cited

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, applied

Wu Shan Liang v Minister for Immigration & Multicultural Affairs (1996) 185 CLR 259, referred to

Somanader v Minister for Immigration & Multicultural Affairs (2001) 178 ALR 677, cited

Ponnudurai v Minister for Immigration & Multicultural Affairs [2000] FCA 91, cited

Kalala v Minister for Immigration & Multicultural Affairs (1999) 61 ALD 142, referred to

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1, referred to Paramananthan v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 28, cited

Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287, cited

Satheeskumar v Minister for Immigration & Multicultural Affairs [1999] FCA 1285, cited

Minister for Immigration & Ethnic Affairs v Conyngham (1986) 11 FCR 528, referred to

MUTSHIMANS KALALA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V9 of 2001

12 NOVEMBER 2001

NORTH, MADGWICK & KENNY JJ

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	V9 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

 

BETWEEN:	MUTSHIMANS KALALA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	NORTH, MADGWICK & KENNY JJ
DATE OF ORDER:	12 NOVEMBER 2001
WHERE MADE:	MELBOURNE

 

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The orders made by Goldberg J on 18 December 2000 be set aside.

3.                  The matter be remitted to the Refugee Review Tribunal, differently constituted, for determination according to law.

4.                  The respondent pay the appellant’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	V9 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

 

BETWEEN:	MUTSHIMANS KALALA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	NORTH, MADGWICK & KENNY JJ
DATE OF ORDER:	12 NOVEMBER 2001
WHERE MADE:	MELBOURNE

REASONS FOR JUDGMENT

NORTH AND MADGWICK JJ:

1                     We have had the benefit of reading in draft form Kenny J’s judgment which generally sets out the factual background.  It is unfortunate, in view of the protracted litigation in this matter, that our conclusion is that this Court should intervene, a reviewable error of law by the Refugee Review Tribunal (“the Tribunal”) having been shown.  In our opinion the Tribunal did, in reality, fail to deal with an important aspect of the case as it was legally required to do.  It appears to us, with respect, that the error came about because of some confusion of concepts related to the necessity for the decision-maker, in this instance the Tribunal, to be satisfied that an applicant has refugee status. 

The relevant legal principles

2                     Section 65 of the Migration Act 1958 (Cth) (“the Act”) provides, subject to presently immaterial qualifications, that the Minister, “if satisfied that” the prescribed criteria for a visa “have been satisfied”, is to grant the visa or, if not so satisfied, is to refuse to grant the visa.  As to some kinds of visas, there is no particular difficulty in applying these tests.  In the case of protection visas, the position is more complex.  The relevant Convention, as it has been judicially explained, sets a test for recognition of refugee status that is somewhat elliptical and contains both subjective and objective elements.

3                     The requirement in the Convention is that the putative refugee should experience a “well-founded fear of being persecuted” for one or more of the reasons set out in Article 1A(2) of the Convention.  Necessarily fear is a subjective matter. However, whether fear of persecution for a Convention reason is “well-founded” is an objective matter: it cannot be determined solely by establishing that such fear is actually held and that it is believed by the applicant for refugee status to be well-founded.  Nevertheless, the objective judgment is required as to the validity of another person’s subjective fear:  see Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379.  Further, it has been recognised that genuine refugees are often at dire disadvantage as to their capacity to present their cases and are, in the words of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 577-8, “engaged in an often desperate battle for freedom, if not life itself”. Exaggeration and lies are accordingly to be expected from some of them. See also Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J at 239-240.  In general and for a variety of reasons, great difficulties attend the process of assessing refugee applications:  Chan per Toohey J at 407; Abebe per Gummow and Hayne JJ at 577.

4                     In these circumstances, a beneficial approach has been taken to determination of the question whether the asserted fear of persecution for a Convention reason is “well-founded”.  It has been held that if there is “a real chance” that an applicant will be persecuted for a Convention reason, his or her fear of such persecution is to be regarded as well founded, notwithstanding that the decision-maker is not affirmatively satisfied that such persecution would occur:  see Chan.  The joint judgment of the High Court in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572-3 explained this:

“[an applicant’s] fear is ‘well-founded’ when there is a real substantial basis for it.  As Chan 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.  But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.  In this and other cases, the Tribunal and the Federal Court have used the term ‘real chance’ not as epexegetic of ‘well-founded’, but as a replacement or substitution for it.  Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind 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.”

 

5                     Moreover, as the starting point for determination of a claim for refugee status is what occurred to an applicant when he or she fled, if conditions are unchanged in the country of nationality, what has occurred as to an applicant in the past may be a powerful indicator that there is a well-founded fear of a future recurrence of more or less similar events:  see Chan per Dawson J at 400, per Toohey J at 408, per Gaudron J at 415 and McHugh J at 432-3; Abebe per Gummow and Hayne JJ at 578.  Judgments about the past are inescapable.  In Guo (at 575) the majority 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.” (emphasis added)

6                     It is, however, commonly the case that the decision-maker either cannot satisfactorily establish what has occurred in the past or actually reaches, as a matter of probabilities, a conclusion as to the past which is adverse to an applicant’s claims.  In either case it follows, from the lack of necessity for a balance of probabilities assessment of the validity of the fear, that this cannot by itself be an end of the matter. There may be a real and substantial basis for thinking that past events, having a character relevant for the applicant’s future, may have occurred notwithstanding either that the truth of the matter cannot be established or that it is actually unlikely that those events did occur.  The same is true of imputing a relevant character to past events which themselves are either not in doubt or as to which it has been recognised that there is at least a real and substantial basis for concluding that they may have occurred. 

7                     In such cases, the degree of probability, even if well below 50 per cent, that the subject events occurred and/or that they bore the subject character needs to be assessed to determine whether an applicant has a well-founded fear of persecution:  Abebe per Gleeson CJ and McHugh J at 544-5 (c.f. Kirby J in Wu Shan Liang v Minister for Immigration & Multicultural Affairs (1996) 185 CLR 259 at 294).  If there is, in the sense mentioned, an unacceptable risk that the events occurred or had such character, they are to be taken into account in assessing whether there is a real chance of Convention-related harm to the applicant.  If there is a real chance that some event occurred or bore a certain character, that circumstance may powerfully affect the assessment of whether fear of future harm befalling an applicant, if returned to his or her country of nationality, is well-founded.

8                     Such assessments of the degree of probability (it is actually the degree of possibility, unless the term probability is used in a mathematical sense) about past events and their characterisation will often be difficult.  Even where full judicial review might be available, it would be only sensible to allow some considerable scope for reasonable variation of individual approach on the part of decision-makers.  But these matters provide no reason for failure to insist that such assessment be undertaken.

9                     It is such an approach which, by other words, the “What if I am wrong?” doctrine requires.  Useful at appellate level as that expression may have been to analyse alleged error, it can have some drawbacks as guidance for many decision-makers.  The “What if I am wrong?” formulation may invite unhelpful and irrelevant mental responses (including “What if I am right?” cf. Merkel J in Somanader v Minister for Immigration & Multicultural Affairs (2001) 178 ALR 677 at 684, and “Well, I have done my best, and hope that I am, after all, right”).  Further, an invocation thus to speculate is apt to be perceived as an invitation to a mere guessing game, at which a conscientious decision-maker is, by temperament and training, unconsciously likely to bridle:  in the introductory “boilerplate” self-direction commonly employed by Tribunal Members and employed by the Member in the present case, “mere speculation” is, on the authority of Guo, rightly disparaged.  We note that Sackville J with whom North J agreed in Rajalingam at 240 and Burchett J in Ponnudurai v Minister for Immigration & Multicultural Affairs [2000] FCA 91 at para 15 also evinced some lack of enthusiasm for the  “What if I am wrong?” formulation.

The Tribunal’s decision

10                  It is to be acknowledged that, albeit in standard phraseology, the Tribunal Member directed himself as to the law that:

“…an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear.  This adds an objective requirement to the requirement that an applicant must in fact hold such a fear.  A person has a ‘well-founded’ fear of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason.  A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or if it is mere speculation.  A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

…the onus of proof is not appropriate to administrative inquiries and decision-making …”

11                  However, the Member later said: “It is for the Tribunal to be satisfied that all statutory elements are made out (see Minister for Immigration & Multicultural Affairs v Guo)” and gave a reference to Kirby J’s separate reasons in that case at 596.  Such a summary of his Honour’s position may be quite misleading if regard is not also had to what he said at 592, namely:

“In this Court, the Minister accepted that it was necessary to guard against the possibility that a claim, based on past facts which would undoubtedly support a "real chance" of future persecution if accepted, should not be entirely discarded because, on balance, particular facts were not accepted. The "real chance" test inescapably involved an element of speculation which had to be preserved throughout the review conducted by the Tribunal. This must be so given the imponderables which can affect the chances of future persecution of individuals returned to a country from which they have departed asserting that they are refugees.”

12                  It seems to us that the Tribunal Member failed to appreciate that the Tribunal is to be “satisfied” of something that may be constituted by a mere possibility, provided always that it is a real and substantial one.

13                  In dealing with the newspaper article, the Member indicated that:

·        The newspaper could be regarded as “recognised and independent”;

·        He suspected that the applicant’s father “may have reported a false incident”;

·        As this could not be easily investigated, he would consider the events described in the article;

·        There was “nothing in the article on which the Tribunal could base any factual findings material to a current Convention claim”;

·        “the Tribunal… finds that there is nothing in the article to link it with … any other [i.e. non-Tingi Tingi] Convention reason (noting of course that the applicant has only ever based his claims on the Tingi Tingi incident)”;

·        “the articledoes not identify the [alleged attackers]”;

·        the article“does not mention motivation other than to refer to the applicant as a ‘dangerous enemy’”;

·        “the Tribunal finds that there is insufficient material available to the Tribunal for it to decide [whether the phrase ‘dangerous enemy’ meant anything other than someone’s ‘personal enemy’]”;

·        there were not “sufficient facts available to draw [the] inference”that the “alleged assailants” were Kabila’s agents;

·        the allegations attributed to the attackers were at odds with the applicant’s own claims; and

·        “some group of people may have been after the Applicant for an unknown reason, it is not appropriate for the Tribunal to guess and the Tribunal finds that the article is not supportive of the Applicant’s claim to have a well-founded fear of persecution for a Convention reason.” (emphasis in the above quotations added).

14                  An appropriately generous approach should be taken in respect of the Tribunal’s written reasons:  Wu at 271-2.  Apart from the other well-known reasons for this, in this case the Member made an admirable effort to expose his processes of reasoning: candour should certainly not be inhibited by a nit-picking approach on judicial review.  It is another thing, however, to ignore what the Tribunal has said, or to divorce the assessment of whether there has been a failure to deal with a legally material matter, from all the circumstances of the case.  As Kirby J put it, discussing (in Guo (at 595)) a supposed constructive failure of jurisdiction by failure to address the correct legal question, “The judge must assess whether a real, as distinct from a purported, exercise of [a statutory] power has occurred.”

Decision of the primary judge

15                  In dealing with the appellant’s submissions in relation to the Tribunal’s consideration of the Le Phare artice, the learned primary judge set out the relevant portions of the Tribunal’s decision and said:

“…The Tribunal considered that article in the course of considering a sequence of twenty-one documents.  It did not make a final finding in relation to the Tingi Tingi claim of the alternative camp until it had considered and analysed all those documents. …

I am therefore satisfied that the Tribunal addressed the issue whether the events described in the article gave rise to a ground of fear of persecution for a Convention reason which was unrelated to, and distinct and separate from, the circumstances claimed to have occurred at a camp.

…

But when one considers the Tribunal’s reasoning in relation to the Le Phare article as a whole it is apparent that the Tribunal had concluded that the material before it did not warrant the finding or conclusion that the motivation of the visitors, in coming to the applicant’s parents’ house, was for a Convention related reason, whether related to the applicant’s claim that he had witnessed atrocities at a camp, or whether related to some other reason bearing upon political persecution.  In short, the Tribunal found that it was not satisfied that the motivation of the visitors was for a Convention related reason although it could not determine, from the material available to it, what was the basis for that motivation.

Notwithstanding the language used by the Tribunal, I am satisfied that the Tribunal made a specific finding about the events described in the article and its contents were not such as to give rise to a well-founded fear of persecution for a Convention reason. …

Although the Tribunal may not have made a specific finding as to what was the motivation of the persons who visited the applicant’s father’s home, it addressed the issue of the motivation of those persons, noting that the article did not mention motivation other than that the person referred to the applicant as a ‘dangerous enemy’.  The Tribunal effectively excluded any finding of motivation based on the applicant’s claim to have witnessed atrocities at a camp by finding that the article did not identify the alleged assailants as ‘Kabilia’s agents’ and that it could not draw an inference to that effect.” (emphasis added)

Discussion and conclusions

16                  In our opinion it is clear enough, for the following reasons, that the Tribunal Member did confine himself to considering whether he was affirmatively satisfied that the article indicated that State agents were pursuing the applicant for a Convention reason and, having answered that question negatively, did not go on to consider whether, in all the circumstances, there was a sufficiently real and substantial chance that it did so indicate as to give rise to a well-founded fear of Convention persecution.

17                  In other words, we accept the appellant’s arguments on appeal that the Tribunal failed to approach the application in accordance with the “what if I am wrong” test.  It should be noted that the grounds of appeal which are set out in the reasons of Kenny J do not directly raise the “what if I am wrong” test.  As she emphasises, this argument was put as an elaboration of the grounds of appeal.  The argument which was put to this Court also differed, in that respect from the argument put to Goldberg J.  However, as no party objected to the change in the way the case was argued before this Court, and no injustice flows from the change, we deal with the appeal on the basis of the arguments put before us.

18                  As the learned primary judge acknowledged, the explicit textual indications in the Tribunal’s reasons, which we have set out above, favour this view. 

19                  It is necessary to engage in some factual analysis of the matter, not, of course, for the purpose of passing upon the merits of the Tribunal’s decision, but to determine exactly what was decided and how.

20                  The Tribunal accepted that:

“Much of the Democratic Republic of Congo (formerly Zaire) continued to be ruled by President Laurent Desire Kabila, whose Alliance of Democratic Forces for the Liberation of Congo-Zaire (ADFL) overthrew the authoritarian regime of Mobutu Sese Seko by armed force in 1997.  The State continued to be highly centralized formally – although in practice the country’s dilapidated transportation and communications infrastructure impaired central Government control – and Kabila continued to rule by decree, unconstrained by a constitution or a legislature.  Kabila continued to ban political party activity, and replaced the ADFL with Libyan-trained ‘People’s Power Committees’ (CPP’s) that monitored the activities of citizens in neighborhoods, schools and workplaces.  The July 10 Lusaka Accords provided for a political dialog among the Government, rebel factions, the unarmed opposition, and elements of civil society; however, little was accomplished toward this end during the year.  The judiciary continued to be subject to executive influence and corruption.

By year’s end, the Government had lost control of more than half the country’s territory to armed antigovernment organisations, the Congolese Rally for Democracy (RCD), and the Movement for the Liberation of the Congo (MLC).  The RCD remained dominated by members of the Tutsi ethnic minority but split in May into two factions:  One that continued to be headquartered in Goma and to command most RCD forces and continued to be supported by the Government of Rwanda; and a new faction based in Kisangani that commanded fewer troops and, like the largely non-Tutsi MLC, was supported by the Government of Uganda.

…

The Kabila Government’s human rights record remained poor.  Citizens do not have the right to change their government peacefully.  Security forces were responsible for numerous extrajudicial killings, disappearances, torture, beatings, rape, and other abuses.  In general, security forces committed these abuses with impunity, although a special military tribunal tried and executed some security force members for various human rights abuses.  Prison conditions remained harsh and life threatening.  Security forces increasingly used arbitrary arrest and detention throughout the year.  Prolonged pretrial detention remained a problem, and citizens often were denied fair public trials.  The special military tribunal tried civilians for political offenses and executed civilians, frequently with total disregard for process protections.  The judiciary remained subject to executive influence and continued to suffer from a lack of resources, inefficiency, and corruption.  It was largely ineffective as either a deterrent to human rights abuses or a corrective force.  Security forces violated citizens’ rights to privacy.”(emphasis added)

21                  The text of the article itself should be understood in the light of this grim picture.  Features of the article are consistent with the circumstances described.  For instance:

·        Even in translation the flavour of sly euphemism, apt for deployment against the officially protected, survives.  The intruders were described by the article’s author not as the cowardly thugs they were but as “very special visitors”.  The article concludes: “one never knows”, and the irony is evident.

·        The Tribunal had been told that in the DRC Swahili is the language of officialdom, and the intruders’ Swahili was “refined”.

·        The visitors were said to comprise some men in military uniforms and some not; this is more suggestive of an officially instigated visit than otherwise.

·        The language attributed to the intruders was that of officialdom.  The parents were “guilty” of something.  The applicant was a “dangerous enemy”: the visitors did not use some of the many more natural epithets to be expected from private persons about another whom they regard as meriting harm.  Officials in revolutionary governments are apt to have “dangerous enemies” for reasons of actual or imputed political opinion. Likewise the phrase “on the tail of this individual” is more apt to describe an official than a private pursuit.

·        The father alerted “human rights” organisations and decided to “lodge a complaint”, steps more commonly taken in relation to official abuses than otherwise.

22                  Merkel J’s judgment (1999) 61 ALD 142, which the Member had studied, makes it clear that his Honour had the view that “the events described in the article” could possibly be regarded by a decision-maker “as constituting an independent ground or basis [that is, independent of the Tingi Tingi claims] for [the applicant] to fear persecution for reasons of perceived political opinion”: see paras 30 – 33.

23                  The point of these observations is not that, upon assessment, the Member lacked the freedom to determine that there was no real and substantial chance that the events described in the article had occurred or that, if there was such a chance, they nevertheless did not provide a sufficiently real and substantial basis for concluding that the applicant had a well-founded fear of political persecution.  The point is that, if the Tribunal Member had really examined whether there was a real and substantial risk that the events recited in the article had occurred, one would have expected to see reference to such examination.  In Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1, McHugh, Gummow and Hayne JJ said (at 17, citations omitted):

“It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do.  Understanding s 430 as obliging the tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the tribunal.  It ensures that a person who is dissatisfied with the result at which the tribunal has arrived can identify with certainty what reasons the tribunal had for reaching its conclusion and what facts it considered material to that conclusion.  Similarly, a court which is asked to review the decision is able to identify the tribunal’s reasons and the findings it made in reaching that conclusion.  The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the tribunal to be material.  This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this court in proceedings brought under s 75(v) of the Constitution.  For example, it may reveal that the tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the fcats found by the tribunal.  It may reveal jurisdictional error.  The tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took account some irrelevant consideration or did not take into account some relevant consideration.

Merkel J had clearly laid out the theoretical possibility of a favourable conclusion for the applicant based on the article and there was, further, material from which a decision-maker plainly could say that there was such a risk, although not necessarily a positive satisfaction, that those events had occurred.  Further, as we have indicated, the Tribunal Member in this case evidently set out to make his reasoning as transparent as possible.  The only possible indication that the Tribunal did look at the less than 50 per cent probabilities is, in our opinion, the Member’s reference to the applicant’s discounted Tingi Tingi story.  But even disbelief of the applicant on that matter was not taken into account in an assessment of those probabilities.

24                  Even the fact that the applicant himself asserted a version of a Convention reason for feared harm, which the Tribunal found was not believable, did not self-evidently mandate disregard of a possible case of a well-founded fear of Convention harm demonstrated independently of the applicant’s assertions.  If a putative refugee fears persecution for political reason A which, on the evidence cannot exist, but there is a well-founded risk that he will be persecuted because of political reason B, it may still be said that he has a well-founded fear of persecution “for reasons of … political opinion”, as the Convention definition puts it.  Suppose, in an authoritarian regime of rightist persuasion, an outspoken advocate of the decriminalisation of private homosexual acts is also a person generally of leftist sympathies.  If he or she actually faces persecution for leftism but has been led by surface events or simply confusion to the mistaken belief that the motivation of the persecutors is opposition to homosexual law reform, inability to discern the precise political motivation of the persecutors does not deny that the person has a well-founded fear of persecution for reasons of political opinion.  The Convention should not be regarded as requiring a putative refugee to divine the exact political motivation of his or her state persecutors.  Refugees are not necessarily insightful or even intelligent.  This view is consistent with the absence of any onus of proof on an applicant asserting refugee status: see for example, Abebe per Glesson CJ and McHugh J at 544.  It is also consistent with the established principle that the Tribunal is required to determine all the substantive issues raised by the material before it and, as an inquisitorial body, should not limit its determination to the case articulated by an applicant if the evidence it accepts or does not reject raises another possible basis for considering that refugee status arises:  see Abebe per Gummow and Hayne JJ at 576; Paramananthan v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 28 at 63 per Merkel J, Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 at 293-4; Satheeskumar v Minister for Immigration & Multicultural Affairs [1999] FCA 1285 at para 15. 

25                  The learned primary judge correctly found that the Tribunal had concluded that the events described in the article did not give rise to an independent ground for fear of persecution for a Convention reason regardless of what did or did not occur at Tingi Tingi.  However, this conclusion cannot, in our opinion, reasonably be said to be one about which the Tribunal had no real doubt.  Not only was the Tribunal unsure as to whether the reported events occurred but also, in examining the information about the incident, the Tribunal was simply unclear as to a number of other important factors such as why it occurred and who attended at the appellant’s father’s house.  Although the Tribunal need not express findings in a manner that manifests its degree of conviction or confidence in the correctness of its findings (Rajalingam per Sackville J at 240), in this case the Tribunal Member acknowledged the difficulties in making findings in relation to the article even though concluding that its contents did not support the appellant’s application.  Further, it is important that the reasoning in Rajalingam should not be misconstrued so as to furnish a means whereby, in the process of judicial review, mere lip service is paid to the relevant principles to be drawn from Chan, Guo and Abebe.  Accordingly, the Tribunal was obliged to consider the chance of the appellant’s persecution on political grounds on a standard less than the balance of probabilities.  The Tribunal Member expressly refrained from drawing any conclusions about the incident described in the article which would have provided some basis for him to reach the position which the learned primary judge seems to have attributed to him, namely that the motivation of the visitors at the appellant’s father’s house was definitely not Convention related.  To the extent that his Honour so found, in our respectful opinion, he fell into error.

26                  In our opinion his Honour should have held that:

(a)                this was a case in which a fair reading of the Member’s reasons does not show that the Tribunal “had no real doubt” (using the terminology of Guo) that claimed events had not occurred or that the Tribunal regarded the “probability” of such events as so low as to be negligible; and

(b)               a Chan “real chance” analysis was thereby necessitated; which

(c)                the Tribunal failed to undertake. 

Despite correctly identifying the way in which the Tribunal approached its analysis of the appellant’s claim, the learned primary judge erred in assuming, in effect, that the Tribunal had applied the Chan test.

27                  In our opinion the failure on the part of the Tribunal Member to examine the probability that the incident described in the article occurred and was motivated because of the appellant’s imputed political opinion was reviewable as an error of law pursuant to s 476(1)(e) (and probably under other paragraphs of s 476(1) although it is unnecessary to determine this):  see generally Yusuf.

28                  Accordingly, for these reasons the application must be allowed.

Disposition

29                  There is an urgent need to bring the sorry saga of the applicant’s efforts to achieve refugee status to a speedy and just termination.  The procedural background of this case is extraordinary.  The applicant has been imprisoned in Australia for years.  This will be the fourth time that the appellant has succeeded in obtaining judicial review of a decision of the Tribunal about his fate.  The position is, so far as we are aware, unique.  It is at least quite exceptional.  The inability of the normal processes to have brought the matter to a conclusion is most unfortunate.

30                  One way to try to expedite the final resolution of the applicant’s claim would be for this Court, if it could, to consider the substance of the applicant’s claims for itself rather than remit the application to the Tribunal again.  That would be a very unusual course.  There is a view that the Court does not have such power:  Kirby J in Guo at 598-600.  Compare, however, the decision of the Full Court of this Court in Minister for Immigration & Ethnic Affairs v Conyngham (1986) 11 FCR 528, which does not appear to have been drawn to Kirby J’s attention.  We are prepared to assume, for the purpose of argument, that the Court does have such power.  Nevertheless, the proper body for assessing the merits is not the Court.  Indeed all the evidence may not be before the Court.  Certainly the argument on appeal has been confined to one aspect of the application.  The only appropriate measure we can make is to urge the Tribunal to treat the matter as one of urgency – a course which it would no doubt take in the circumstances of this case even without these observations.

31                  Accordingly, we would allow the appeal and set aside the orders made by Goldberg J on 18 December 2000.  The matter should be remitted for reconsideration by the Tribunal according to law.

 

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North and  Madgwick.

Associate:

Dated:              12 November 2001

 

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 9 OF 2001

 

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

 

BETWEEN:	MUTSHIMANS KALALA Appellant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

 

JUDGES:	NORTH, MADGWICK & KENNY JJ
DATE:	12 NOVEMBER 2001
PLACE:	MELBOURNE

 

KENNY J:

32                  This is an appeal from a decision of a Judge of the Court made on 18 December 2000, dismissing an application under s 476(1) of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of the respondent, by his delegate, not to grant the appellant a protection visa. 

33                  The appellant, Mutshimans Kalala, was born on 7 January 1971 and is a citizen of the Democratic Republic of Congo (formerly Zaire) (“the DRC”).  He arrived in Australia on 18 February 1998, claiming refugee status.  He has been detained in immigration detention since his arrival in this country. 

34                  Shortly after his arrival, Mr Kalala applied for a protection visa.  Provision is made in s 36 of the Act for protection visas.  Subsection 36(2) provides:

A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. 

The Refugees Convention is defined in s 5(1) of the Act as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951.  The Refugees Protocol is defined as the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  There is further provision made for protection visas in the Migration Regulations 1994.  Clause 866.221 of Schedule 2 of the Regulations provides that it is a criterion for a protection visa that the Minister is “satisfied” that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (collectively, “the Convention”).  These protection obligations arise in relation to a person who falls within the definition of “refugee” in the Convention.  A refugee is defined in Article 1A(2) of the Convention as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country … .

35                  Mr Kalala claims that he is a person who has a well-founded fear of being persecuted for reason of political opinion and, owing to such fear, is unwilling to return to the DRC.

history of the appellant’s protection visa application

36                  Mr Kalala claimed that in January 1997 a Minister of President Mobutu’s government called for Red Cross volunteers to assist Rwandan refugees who had fled into eastern Zaire.  He said that he answered that call, and worked with the Zaire (later DRC) Red Cross at Tingi Tingi refugee camp in the DRC between January 1997 and 6 May 1997.  He stated that when he arrived at the camp, the forces of the Alliance of Democratic Forces for the Liberation of Congo-Zaire (“the ADFL”) were assuming a presence in the area.  The ADFL supported Laurent-Désiré Kabila, against the coalition government of President Mubutu.  Kabila’s forces succeeded in overthrowing President Mobutu in mid-May 1997 after a seven-month campaign. 

37                  Mr Kalala claimed that, while at Tingi Tingi camp, he saw members of Kabila’s forces kill and torture Rwandan refugees.  He said that a friend, with whom he shared a tent at Tingi Tingi camp, had photographed some of these events.  Learning that United Nations representatives might inspect the camp, the Kabila-inclined authorities undertook inspections and, on 5 May 1997, discovered the photographs taken by his friend in the tent that they shared.  ADFL soldiers took his friend away and Mr Kalala did not see him again.  On the discovery of the photographs, Mr Kalala said that he was harassed but not detained.  The following day, 6 May 1997, he claimed to have left the camp, fearing for his safety.  Subsequently, Mr Kalala crossed the border into Zambia and travelled by truck to South Africa where he obtained a false passport that enabled him to travel to Australia.

38                  Mr Kalala’s case was that, by reason of the discovery of the photographs, authorities in the DRC would attribute an anti-Kabila political opinion to his friend and, by association, to him too.

39                  Amongst other things, he sought to substantiate his case by reference to an article in a newspaper called Le Phare, which was published in the DRC on 6 March 1998.  The article, entitled “Des visiteurs très spéciaux sur l’avenue Kalombo”, read in translation:

Very Special Visitors on Avenue Kalombo

There were five.  Three in military uniforms and two in plain clothes.  They were speaking a refined Swahili.  They came at around 11 pm to Mr. Kalombo’s home, at No. 1 rue Kalombo, in the township of Lemba. 

Without giving the residents of the house any time to speak, the night visitors started threatening the parents who, according to them, were guilty of hiding a dangerous enemy called Kalala Muntshimans.  ‘We are on the tail of this individual since Goma, and we have just heard that you have been hiding him all this time.’  They had hardly made their accusation that the father, who is already elderly and who could only cry and beg the Lord to touch the tender heart of his torturers, was being hit with rifle butts.

Mr. Kalombo was crying for two reasons.  Firstly, because, for a man of his age, being hit was real agony, and secondly because the night visitors were reopening an unhealed wound by saying the name of Kalala Muntshimans.  Over six months before, when, after a fruitless search, he was told that Kalala, his son, had been found dead in Goma, Mr Kalombo had actually gone into mourning for his son.  And it was this dead man that the very special visitors were hunting for.  Moreover, they left saying they would be back if, on that day, they did not find the individual they were interested in!  Kalombo did not know which way to turn, so he alerted human rights organisations and decided to lodge a complaint against unknown persons because one never knows.

40                  Mr Kalala did not satisfy the respondent’s delegate, however, that he was a person to whom Australia had protection obligations under the Convention.  On 8 May 1998, the delegate refused him a protection visa.  The Tribunal affirmed this decision on 15 June 1998.  Whilst the Tribunal found “no reason to doubt” that he had worked for the Red Cross “at least until 1995”, it did not accept his claim that he had worked in Tingi Tingi camp.  The Tribunal also said that it was not satisfied that the newspaper articles to which Mr Kalala referred, including the article in Le Phare, were genuine.  It “conclude[d] that they were fabricated to support the Applicant’s false claims that he is at risk because he was a witness to a massacre in May 1997”. 

41                  By consent, on 12 October 1998, a judge of the Court set aside the Tribunal’s decision and remitted the matter to the Tribunal, differently constituted, for reconsideration. 

42                  On 4 December 1998, the Tribunal, constituted in accordance with the Court’s direction, again affirmed the respondent’s decision not to grant Mr Kalala a protection visa.  On this occasion, the Tribunal concluded:

This is a difficult case inasmuch as the evidence does not point clearly in the direction of any one account of the facts, and I have not found it possible to determine with any degree of confidence what the applicant was truly doing in 1997.  I think it may be said with little doubt that the applicant was working for the DRC Red Cross at some time, and probably during 1997.  However, that falls short of saying that his account is true.  The essential problem with the account is that in the light of the egregious factual errors about Tingi Tingi camp it is impossible to accept that he could have been there.  …

Consequent upon my finding that the applicant was not at Tingi Tingi, I find the events which he claims occurred while he was there did not actually occur, and that the forces of Laurent Kabila are not searching for him, or at least not for the reasons given. 

Once again, Mr Kalala failed to satisfy the Tribunal that he was entitled to the grant of a protection visa.  As it happened, however, by consent, a judge of this Court set aside the Tribunal’s decision and remitted the matter to it for reconsideration.

43                  On 18 May 1999, the Tribunal, differently constituted, affirmed the delegate’s decision not to grant Mr Kalala a protection visa.  After noting that there was “inconsistent material about the applicant’s presence at Tingi Tingi”, the Tribunal concluded that he was not there and that there was, therefore, “no basis for accepting that he fled Tingi Tingi because of what happened to his friend or that he faces a real chance of persecution should he now return because of what he witnessed”.  The Tribunal added that even if the applicant had been at Tingi Tingi, it “d[id] not find the applicant’s account of Kabila’s troops taking an interest in him after he left to be anything other than farfetched”.  The Tribunal added that it “d[id] not accept that anything the applicant saw as a Red Cross worker in Tingi Tingi camp would lead to the applicant facing a real chance of persecution should he now return.  …  In the Tribunal’s view there is now no real chance he would face difficulties should he return as a result of his claimed period in this camp”.  Finally, the Tribunal did not find the article in Le Phare “at all persuasive of anything in this case”. 

44                  On 19 November 1999, the decision was set aside by this Court, constituted by Merkel J, who remitted the matter to the Tribunal, differently constituted, for reconsideration.  In the course of his reasons for decision (Kalala v Minister for Immigration & Multicultural Affairs [1999] FCA 1595; (1999) 61 ALD 142), Merkel J observed at [28]:

The main focus of the [Tribunal], throughout its reasons, was on the applicant’s fear of persecution because of his presence at Tingi Tingi.  However, if the [Tribunal] failed to consider and make findings in relation to the significance of the ‘Le Phare’ article, as a ground for the applicant fearing persecution, that would constitute reviewable error. 

His Honour went on to hold, at [34], that the Tribunal:

appears to have approached its task by reference to the claims of political persecution in respect of events at the Tingi Tingi camp and not by reference to the additional events reported in the ‘Le Phare’ newspaper.

45                  After referring to Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182, his Honour said at [35]:

If the veracity of the events reported in ‘Le Phare’ are accepted, they support the applicant’s version of events at Tingi Tingi.  More importantly, for present purposes they provide ‘an additional reason for [the applicant’s] present fear of political persecution’ if he returns to the DRC.

His Honour concluded at [36] that, because of its failure to make findings in respect of the events reported in the article in Le Phare, the Tribunal had breached s 430(1) and its decision was reviewable under s 476(1)(a) of the Act.  (At the time of his Honour’s decision, the decision of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 had not been delivered.)  Accordingly, his Honour set aside the Tribunal’s decision and remitted it for determination in accordance with law.

46                  By a letter dated 10 April 2000, the Refugee and Immigration Legal Centre Inc (“the RILC”), representing Mr Kalala, made detailed submissions to the Tribunal.  Amongst other things, it submitted that the Tribunal should make its own inquiries about whether the article relied on by him “did genuinely appear in Le Phare newspaper on the 6 March 1998”.  According to the RILC, the article in Le Phare was not only “directly material to the question of whether his fear on a Convention ground is well-founded”, it also “corroborates other crucial aspects of the applicant’s claims, namely that he is wanted by the authorities in the DRC”.  The RILC also sought to explain Mr Kalala’s evidence concerning Tingi Tingi camp.  The RILC submitted that:

The previously constituted Tribunals have preferred a theory that the applicant must be lying and was never present in the ‘Tingi Tingi’ camp as claimed.  In our submission the only clear explanation for these discrepancies is that he was not at the place referred to in the country information, as the Tingi Tingi camp.

Our submission is that the applicant was working in an area generically known as Tingi Tingi to the people working there.  ‘Tingi Tingi camp’ was how his work place was described to the applicant by other workers already at the camp.  ‘Tingi Tingi camp’ is how the DRC Red Cross describe the applicant’s work place in the Attestation of the DRC Red Cross dated 16 April 1999.  However, the applicant’s evidence strongly suggests that he was not in the Tingi Tingi camp proper, being the very large camp with around 130,000–170,000 refugees, but in some other camp in the same general area, but still some distance from the proper Tingi Tingi camp.  In our submission the confusion arising is a question of the labelling of places, a problem which the applicant has encountered in other hearings and not a reflection of a fundamental credibility problem with the applicant’s evidence. 

This interpretation of ‘Tingi Tingi’ is not a matter of recent invention.  We note that the applicant explained quite clearly the local usage of the term ‘Tingi Tingi’ in the evidence he gave to the first Tribunal.

47                  Notwithstanding the RILC’s submissions, Mr Kalala’s oral evidence and the documentary material, the Tribunal again affirmed, on 7 September 2000, the delegate’s decision not to grant a protection visa.  The decision was the subject of an application for review.  This appeal is from the decision of the judge who dismissed that application. 

the tribunal’s reasons

48                  After referring to the relevant statutory provisions, the Convention and the applicable legal principles, the Tribunal “adopted” what it termed “Justice Merkel’s summary of the Applicant’s claims”.  As the primary judge subsequently noted on the review with which this appeal is concerned, this “somewhat unusual step” “had the potential to distort the nature of the task it had to undertake”:  [2000] FCA 1861 at [7]-[8].  As it happened, however, no consequential error has in this instance been shown to arise from that procedure. 

49                  Before turning to what the Tribunal described as its “findings and reasons”, the Tribunal referred to the concession made on Mr Kalala’s behalf that “his account of the ‘Tingi Tingi’ camp is not consistent with the country information extracts the Tribunal referred him to …”.  The Tribunal added that:

He and his solicitors/advisers have sought to explain the inconsistencies … by his being in a ‘rogue’ Tingi Tingi camp ie not the camp near the Tingi Tingi village, but one some 130 kilometres away near the Zaire river.  In the end this has become the pivotal issue in the case … .

50                  Identifying “the central issue” as “was the Applicant in Tingi Tingi in early 1997”, the Tribunal considered seriatim the twenty-one separate documents which had either been supplied by him or had been found in his possession when he was first detained.  In relation to these documents, the Tribunal made findings concerning authenticity, relevance and significance.

51                  At the end of its documentary examination, the Tribunal noted that it had “caused inquiries to be made with the International Red Cross in Kinshasa in an effort to test the ‘rogue’ Tingi Tingi camp theory”, and that these inquiries had turned out to be unsuccessful.  The Tribunal stated that it had “approached the country information without any preconceived ideas, but slowly and inexorably reached the conclusion that the country information was overwhelmingly inconsistent with the Applicant’s ‘rogue’ Tingi Tingi camp”.  It specifically referred to some of that information, also noting that it was inconsistent with a document produced by the DRC Red Cross on 16 April 1999, attesting that Mr Kalala had, in fact, worked in Tingi Tingi camp from January 1997 to 6 May 1997.  Of this document, the Tribunal said:

The Tribunal could speculate as to how [this] Document … came into existence.  For example, a friend of the Applicant’s [sic] in the Red Cross could have issued it or it could simply have been an error.  However, the Tribunal should not speculate.  All the Tribunal can do on the information available is what it has done, ie find that it is inconsistent with [another document produced by the International Red Cross in Kinshasa dated 20 July 1999] and the country information and reject it as evidence of the Applicant having been in Tingi Tingi.

The Tribunal also notes that the Applicant and his advisers have not produced any Red Cross, UNHCR or other country information to support the rogue Tingi Tingi claim. 

52                  In consequence, the Tribunal rejected Mr Kalala’s claim to have been at Tingi Tingi camp, or at a camp some 130 kilometres away on or near the Zaire river.  Because of this, it also rejected his claims that he had witnessed killings and atrocities at Tingi Tingi camp or the alternative camp near the Zaire river.  The Tribunal ultimately found that:

[T]here is not a real chance of the Applicant being persecuted in the foreseeable future for a Convention reason if he returns to the Democratic Republic of Congo and therefore finds that he does not have a well-founded fear of persecution for a Convention reason.

the decision of the primary judge

53                  Relying on s 476(1)(e) and s 476(1)(c) of the Act, Mr Kalala submitted at first instance that the Tribunal had erroneously:

(1)     confined itself to the question whether he was at Tingi Tingi camp and not whether he might have been at another camp which he mistook as Tingi Tingi, although it was located some distance away from Tingi Tingi; and

(2)     failed to consider whether the events described in the article in Le Phare took place, and, if so, the motivation for them and whether they gave rise to a well-founded fear of persecution.

54                  The primary judge rejected both submissions.  His Honour stated at [22] that:

I am satisfied that the Tribunal recognised that there was an alternative basis upon which the applicant was saying that he had witnessed the killings and atrocities, namely that he may not have been at Tingi Tingi but rather was at another camp.  The Tribunal dealt with this alternative basis in a number of passages in its reasons. 

His Honour went on specifically to note these passages and concluded, at [28]:

It can therefore be seen that there were a sufficient number of references to the claim in relation to the alternative camp to demonstrate that the Tribunal did not confine itself to the question whether the applicant was at Tingi Tingi camp.  Rather, the Tribunal recognised, confronted and rejected the claim that the applicant had been at a camp, which was not at Tingi Tingi although he understood it was, at a place some distance away from Tingi Tingi at or near the Zaire river.  The applicant’s first attack on the Tribunal’s reasoning is not made out. 

55                  Turning to the article in Le Phare, the primary judge found, first, that the Tribunal:

considered the possibility that when the article was published someone who identified the applicant may have contacted the authorities about him if they made an assumption that the persons involved were connected to the government and acting in some official capacity.  The Tribunal, nevertheless, found that there was not a real chance of this happening in the foreseeable future if the applicant returned, given that more than two years had elapsed since the date of publication of the article. 

 

His Honour concluded that the Tribunal directed its mind to the possibility that the article might not only relate to the Tingi Tingi claim but also to some other circumstance or fear that might support persecution for a Convention reason.  His Honour said at [33]:

I am therefore satisfied that the Tribunal addressed the issue whether the events described in the article gave rise to a ground of fear of persecution for a Convention reason which was unrelated to, and distinct and separate from, the circumstances claimed to have occurred at a camp. 

56                  In relation to a submission that the Tribunal had erroneously rejected Mr Kalala’s claim to have been at Tingi Tingi before it considered the article in Le Phare, his Honour said at [32]:

I do not accept the submission that the Tribunal had made its ultimate finding on the Tingi Tingi claim before it turned its mind to the Le Phare article.  The Tribunal considered that article in the course of considering a sequence of twenty-one documents.  It did not make a final finding in relation to the Tingi Tingi claim or the alternative camp claim until it had considered and analysed all those documents.  …  [T]he Tribunal considered and evaluated the relevance of the article in its assessment of the Tingi Tingi claim and the alternative camp claim.

57                  His Honour also rejected a submission that the Tribunal failed to make a finding on a material matter, because it failed to make a definitive finding about whether the motivation of the persons who came to Mr Kalala’s father’s house was Convention-related.  In connection with this submission, his Honour said at [36]-[38]:

[W]hen one considers the Tribunal’s reasoning in relation to the Le Phare article as a whole it is apparent that the Tribunal had concluded that the material before it did not warrant the finding or conclusion that the motivation of the visitors, in coming to the applicant’s parents’ house, was for a Convention related reason, whether related to the applicant’s claim that he had witnessed atrocities at a camp, or whether related to some other reason bearing upon political persecution.  In short, the Tribunal found that it was not satisfied that the motivation of the visitors was for a Convention related reason although it could not determine, from the material available to it, what was the basis for that motivation.

Notwithstanding the language used by the Tribunal, I am satisfied that the Tribunal made a specific finding that the events described in the article and its contents were not such as to give rise to a well-founded fear of persecution for a Convention reason.  To that extent the Tribunal addressed, and made findings in respect of, the relevant material issues placed before it.

Although the Tribunal may not have made a specific finding as to what was the motivation of the persons who visited the applicant’s father’s home, it addressed the issue of the motivation of those persons, noting that the article did not mention motivation other than that the persons referred to the applicant as ‘a dangerous enemy’.  The Tribunal effectively excluded any finding of motivation based on the applicant’s claim to have witnessed atrocities at a camp by finding that the article did not identify the alleged assailants as ‘Kabila’s agents’ and that it could not draw an inference to that effect.

 

grounds of appeal

58                  In an amended notice of appeal, the appellant claimed:

(1)     His Honour erred in holding that on a proper reading of its reasons for decision the Tribunal had found that the visitors to the appellant’s father’s house were not motivated by a Convention reason.

(2)     His Honour should have held that the Tribunal had not made any finding as to the motivation of the visitors to the appellant’s father’s house and therefore had not addressed a material claim advanced by the appellant.

(3)     His Honour should have held that by reason of the failure to make findings as to the motivation of the visitors to the appellant’s father’s house the decision involved an error of law being an error in the interpretation or application of the applicable law.

59                  As will be seen from this, the appellant’s case focussed solely on the Tribunal’s treatment of the article in Le Phare.  In amplifying his grounds, counsel for the appellant submitted that the Tribunal had failed to apply the law as stated in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”) and in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (“Rajalingam”).  This was because it had not turned its mind to the degree of probability that the events reported in the article were motivated by a Convention reason.  That is, according to the appellant, the Tribunal failed to apply the “What if I am wrong?” test as propounded in Guo and Rajalingam.  In the alternative, the appellant submitted that the Tribunal erred by improperly imposing an onus on him to establish his case and, in particular, that the reported events were motivated by a Convention reason. 

did the tribunal fail to consider mr kalala’s case as guo required?

60                  As already noted, before the Tribunal, the appellant relied on the article and the events reported in it as a separate basis for his claim that he had a well-founded fear of persecution for political opinion.  The factors in the article said to be supportive of his case were (1) the military dress of some of the assailants; (2) the assailants’ language was that of Kabila’s forces; (3) the appellant was referred to as “a dangerous enemy”; and (4) Goma, a stronghold of Kabila’s forces, was mentioned.  Indeed, one might, perhaps, infer from the article that members of Kabila’s forces were in pursuit of Mr Kalala in order to punish him for something that had occurred (or which they had learned) in Goma.  The appellant’s counsel submitted that the possibility of such an inference, considered in light of the country information, was sufficient to require the Tribunal to apply the “What if I am wrong?” test in determining whether Mr Kalala had a well-founded fear of persecution based on the article alone. 

61                  Plainly enough, as the primary judge held, the Tribunal was not affirmatively satisfied that the persons reported to have been seeking the appellant were motivated by a Convention reason.  The appellant did not challenge this finding.  The appellant submitted, instead, that his Honour erred in finding that the Tribunal had “positively excluded a Convention based reason”.  The appellant’s case depended heavily on the language used by the Tribunal in dealing with the article in Le Phare.  What the Tribunal said was as follows:

The Tribunal accepts and finds that this is an actual article ie that the article appeared in the ‘Le Phare’ newspaper of that date.  The article appeared after the Applicant had been detained in Australia on 18 February 1998.  The timing of the article leads the Tribunal to suspect that the article is not a genuine report of an event ie that the Applicant’s father may have reported a false incident in an attempt to assist his son.  However, there is no easy way to investigate this as a journalist from a recognised and independent newspaper would not reveal his source.  The Tribunal therefore proceeds to consider the events described in the article.

The Tribunal finds that there is nothing in the article on which the Tribunal could base any factual findings material to a current Convention claim.

There was the possibility, at the time of publication, that someone who identified the Applicant may have contacted the authorities about him (thereby possibly exposing him to harm), if they made an assumption that the attackers were connected to the Government and acting in some official capacity, but the Tribunal finds that there is not a real chance of this happening in the foreseeable future if the Applicant returned, given the more than two years that have passed since the publication date.  That is, the Tribunal finds that the article itself could not found a separate claim, independent of the Tingi Tingi claim.  Similarly, the Tribunal finds that there is not a real chance of the authorities having retained the article or details of it now, more than two years later, and acting on it in the foreseeable future if the Applicant returns.

The Tribunal also finds that there is nothing in the article to link it with the Applicant’s claim to have been in Tingi Tingi or indeed with any other Convention reason (noting of course that the Applicant has only ever based his claims on the Tingi Tingi incident). 

The Tribunal finds that the article does not refer to events at the Tingi Tingi camp or to the camp itself.  The Tribunal finds that the article does not identify the persons alleged to have attacked the Applicant’s father, nor, as importantly, whether their motivation for seeking the Applicant was for a Convention reason.  The article does not mention motivation other than to refer to the Applicant as ‘a dangerous enemy’.  It may mean a personal enemy of the attackers or of someone else or some other entity, but the Tribunal finds that there is insufficient material available to the Tribunal for it to decide this.

The Tribunal finds that the article does not identify the alleged assailants as ‘Kabila’s agents’, nor are there sufficient facts available to draw that inference.

The Tribunal finds that there is no evidence before it to enable it to make any findings of fact about the following words alleged to have been uttered;

‘We are hot on his trail since Goma now we have come to learn that all this time you have been hiding him.’

The Tribunal notes that the Applicant has not claimed to have hidden at his father’s house and indeed the words in bold cannot be accurate as the Applicant had been in detention in Australia since 18 February 1998.  How could someone inform these people that the Applicant had been hiding there, if he never had been.  The Applicant also never claimed that he had been at Goma after 6 May 1997. 

The article is problematic because of its timing and its contents which do not fit the Applicant’s claims.  Some group of people may have been after the Applicant for an unknown reason, it is not appropriate for the Tribunal to guess and the Tribunal finds that the article is not supportive of the Applicant’s claim to have a well-founded fear of persecution for a Convention reason. 

(Underlining added; bold type original)

62                  Relying specifically on the words underlined, the appellant’s counsel submitted that, although the Tribunal found that it was not satisfied that the motivation of the reported assailants was for a Convention reason, it did not positively exclude that motivation.  Referring to the remarks of Gleeson CJ and McHugh J in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 (“Abebe”) at [82] and [83], the appellant contended that, in the circumstances of the case, “[the Tribunal’s] task remained incomplete” since it was bound to consider the degree of probability that the reported events had occurred for a Convention related reason. 

63                  In Abebe at [83], Gleeson CJ and McHugh J observed that:

[E]ven if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution.

This was, as their Honours acknowledged, simply to reiterate that part of the joint judgment in Guo at 576 which stated:

In determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. 

64                  The Tribunal’s reasons showed, so the appellant said, that the Tribunal was unable to determine, with sufficient conviction, that the motivation for the events reported in Le Phare was not for a Convention reason.  The Tribunal, therefore, was required to take into account the possibility that the alleged events might have occurred for a Convention reason.

65                  As the decisions of the High Court in Guo and of the Full Court of this Court in Rajalingam make clear, the Tribunal is not obliged to state expressly “its degree of conviction or confidence” in its findings:  see Rajalingam at [64] per Sackville J and [140] per Kenny J.  As Sackville J (with whom North J agreed) said in Rajalingam at [64]-[67]:

In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the [Tribunal] appeared to have no doubt that the probability of error was insignificant.  …

…

In general, however, the question of whether the [Tribunal] should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the [Tribunal’s] own reasons.  If a fair reading of the reasons as a whole shows that the [Tribunal] itself had ‘no real doubt’ (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.  Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the [Tribunal’s] own findings to be pursued.  A ‘fair reading’ of the reasons incorporates the principle that the [Tribunal’s] reasons should receive a ‘beneficial construction’ and should not be ‘construed minutely and finely with an eye keenly attuned to the perception of error’:  Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FC), at 287.  Only if a fair reading of the reasons allows the conclusion that the [Tribunal] had a real doubt that its findings on material questions of fact were correct, might error be revealed by the [Tribunal’s] failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur).  If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the [Tribunal] had not undertaken the required speculation about the chances of future persecution.

66                  Also in Rajalingam, I said at [140]:

There is, however, nothing in the judgments of the majority in Guo or Wu Shan Liang to require the [Tribunal] to address the specific question ‘What if I am wrong?’ after it has made findings of fact and in the course of determining whether it is satisfied that the applicant has a well-founded fear of persecution.  Indeed, I doubt that Kirby J intended to be understood as requiring that:  see Wu Shan Liang at 293.  In deciding whether it has a relevant satisfaction for grant of a protection visa, the Tribunal is required to bear in mind the totality of the case.  That, as we have seen, includes any relevant uncertainty that it entertains as to whether claimed events in the applicant’s past may ground a fear of persecution for a Convention reason.  In that respect, the Tribunal is required to do no more than to satisfy itself in accordance with commonsense and the ordinary experience of mankind.

See also Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 at [31] and S v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 575. 

67                  As in any case that comes before the Tribunal, the Tribunal was required to consider the totality of the material before it in determining whether it was satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason.  In this regard, the Tribunal was required to take into account any relevant uncertainty it might have as to whether the events relied on by the applicant grounded a fear of persecution for a Convention reason.  In Mr Kalala’s case, the Tribunal’s findings show that it had no real doubt in rejecting his central claims that he had a well-founded fear of persecution for a Convention reason based on events at Tingi Tingi camp or at a camp that he thought was Tingi Tingi camp. 

68                  Moreover, the Tribunal expressed no real doubt about its finding that the article in Le Phare and its contents neither supported Mr Kalala’s central claims nor any other Convention-based claim.  The Tribunal was not satisfied that unnamed persons were searching for Mr Kalala in order to injure him for a Convention reason.  Despite some looseness in its language, it was not in any real doubt , so it seems to me, about this last-mentioned matter.  This is evident from the Tribunal’s specific findings about the article.  They were as follows.

(1)   The article could not found a separate claim, independent of the Tingi Tingi claim, by reason of its publication (i.e., although at the time of its publication someone may have contacted the authorities about Mr Kalala, that risk had faded away with the passage of time).

(4)     The article contained “nothing to link it with [Mr Kalala’s] claim to have been in Tingi Tingi or indeed with any other Convention reason”.

(5)     The article did not refer to the events at Tingi Tingi camp or to the camp itself.

(4)   The article neither identified the relevant assailants as “Kabila’s agents”, nor stated whether they were seeking Mr Kalala for a Convention reason.

(5)   Although the article referred to Mr Kalala as “a dangerous enemy”, it did not indicate what was intended by this expression.

(6)   The article was not supportive of Mr Kalala’s claim to have a well-founded fear of persecution for a Convention reason.

69                  The Tribunal also found that it had insufficient information to determine what was intended by the words “a dangerous enemy” or “We are hot on his trail since Goma and now we have come to learn that all this time you have been hiding him”.  It found too that there was insufficient material to enable it to draw an inference as to the identity of the assailants. 

70                  The doubt that the Tribunal actually expressed was whether the events described in the article in Le Phare had occurred at all.  Noting that this doubt could not be resolved one way or the other, it considered the significance of the article and the events it related on the basis that the article was an accurate report of something that had happened.  In this way, the Tribunal dealt with its uncertainties about material events.  As already noted, Guo and Rajalingam commended this approach in the event that a doubt of this nature arose:  see Guo at 576 and Rajalingam at [67] and [140]. 

71                  As the above analysis shows, after discounting the possibility that the mere publication of the article might have provided an independent basis for the fear claimed by Mr Kalala, the Tribunal turned its mind to its contents.  As appears from its specific findings, the Tribunal held, in substance, that the contents not only failed to substantiate the Tingi Tingi claim but also the existence of any well-founded fear of persecution for a Convention reason on any other basis.  It is true that the Tribunal said, in relation to the latter possibility:

Some group of people may have been after the Applicant for an unknown reason, it is not appropriate for the Tribunal to guess … .

As the primary judge observed, all that the Tribunal meant by this was that it had insufficient information to make more definitive findings. 

72                  Gummow and Hayne JJ remarked in Abebe at [187]:

The proceedings before the tribunal are inquisitorial and the Tribunal is not in the position of a contradictor.  It is for the applicant to advance whatever evidence or argument [he] wishes to advance in support of [his] contention that [he] has a well-founded fear of persecution for a Convention reason.  The tribunal must then decide whether that claim is made out.

Mr Kalala had not offered any reason for his persecution other than the events at Tingi Tingi camp or a camp called Tingi Tingi.  If that reason were rejected, then it did not follow that his claim for protection would inevitably fail.  The Tribunal would need to consider whether the material supported any other basis on which it could be satisfied that his fear was well-founded.  For the reasons already given, it seems to me that the Tribunal did just this.  The Tribunal was not required to speculate about a possibility that it did not consider was open on the material (not being the subject of any claim by Mr Kalala): cf Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15]-[16]. 

73                  Accordingly, I reject the appellant’s submission that the Tribunal failed to apply the law as set out in Guo and Rajalingam and, in particular, failed to address the “What if I am wrong?” test.  The primary judge did not err in finding that, reading the Tribunal’s reasons as a whole, the Tribunal had effectively excluded the possibility that the events recounted in Le Phare were motivated by a Convention reason.  In this regard, his Honour construed the Tribunal’s reasons as the authorities required:  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.  As the appellant conceded “[i]t was not necessary in order to disprove a Convention reason, that the Tribunal establish as a positive fact what the reason was”. 

did the tribunal treat the appellant as carrying an onus of proof?

74                  In a proceeding before the Tribunal, the applicant carries no onus of proof:  see, e.g., Abebe at [83].  Counsel for the applicant submitted, however, that, in this case, the Tribunal had erred by imposing just such an onus upon Mr Kalala in making out his case.  Counsel relied upon the following passage appearing in the Tribunal’s reasons as indicative of error:

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out:  MIEA v Guo & Anor (1997) 144 ALR 567 at 596.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to make the applicant’s case for him or her:  Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45.  Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant:  Randhawa v MIEA (1994) 52 FCR 437 at 451.

The appellant’s counsel submitted that the Tribunal had taken certain observations of Kirby J in Guo out of context and had “overstate[d] what his Honour was intending”. 

75                  In Guo, Kirby J said at 596:

[T]he mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is ‘well founded’ or that it is for reasons of political opinion.  It remains for a Minister in the first place to be ‘satisfied’ … and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.

 

When the relevant passage in Kirby J’s judgment is examined and compared with the Tribunal’s synopsis, there is no error shown in the Tribunal’s statement of the law.  Indeed, his Honour’s observations on this point do not differ greatly from the more recent remarks of Gummow and Hayne JJ in Abebe, especially at [187] (set out above). 

76                  Although carrying no onus of proof, Mr Kalala placed a great deal of material before the Tribunal with a view to satisfying it that he had a well-founded fear of persecution for a Convention reason.  This was in accordance with the procedure contemplated by the Act.  The Tribunal considered that material in order to decide whether it was satisfied that that he was a person to whom Australia has protection obligations under the Refugees Convention, as it was required to do.  Its reasons do not establish that it decided this question on the basis that Mr Kalala carried the onus of proof.

 

conclusions

77                  The grounds of appeal are not made out.  The primary judge held that the Tribunal had properly addressed the issue of whether the events described in the article gave rise to a well-founded fear of persecution for a Convention reason, whether based on the Tingi Tingi camp claim or otherwise.  His Honour also held that the Tribunal had made a specific finding that the article in Le Phare and its contents were not such as to give rise to a well-founded fear of persecution for a Convention reason. 

78                  Gummow and Hayne JJ noted in Abebe at [190]:

Inquiring whether a person has a well-founded fear of persecution is attended by very great difficulties. 

This case graphically illustrates the truth of this observation.  For the reasons stated, however, there is, in my opinion, no error shown in the decision under appeal.  I would dismiss the appeal. 

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated:              12 November 2001

Counsel for the Appellant:	Mr R M Niall
Counsel for the Respondent:	Mr W Mosley
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 May 2001
Date of Judgment:	12 November 2001