FEDERAL COURT OF AUSTRALIA

Jones v Minister for Immigration & Multicultural Affairs [2002] FCA 392

MIGRATION – protection visa – application for review of decision of Refugee Review Tribunal – Tribunal unable to accept claim that applicant was a national of Sierra Leone - whether Tribunal under obligation to consider the question of persecution in respect of some other country – whether Tribunal should have considered the possibility that its findings were wrong – whether there was no evidence or other material to justify the making of the decision

Migration Act 1958 (Cth) s425, s476

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, (2001) 180 ALR 1, referred to

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, referred to

Minister for Immmigration and Multicultural Affairs v Indatissa [2001] FCA 181, referred to

Vichlenkova v Minister for Immigration & Multicultural Affairs [1999] FCA 1338, referred to

Hussaini v Minister for Immigration and Multicultural Affairs [2001] FCA 278

Ali Mohsen v Minister for Immigration and Multicultural Affairs [2001] FCA 1206

Hussaini v Minister for Immigration and Multicultural Affairs [2002] FCA 104

Abedi v Minister for Immigration and Multicultural Affairs [2001] FCA 1081, referred to

Abedi v Minister for Immigration and Multicultural Affairs [2002] FCA 208, referred to

Raza v Minister for Immigration & Multicultural Affairs [2002] FCA 350, referred to

Kola v Minister for Immigration and Multicultural Affairs [2002] FCA 265, applied

PATRICK JONES v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 661 OF 2001

MARSHALL J

ADELAIDE (HEARD IN MELBOURNE)

5 APRIL 2002

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application under Part 8 of the Migration Act 1958 (Cth) (‘the Act’) for review of a decision of the Refugee Review Tribunal (‘the RRT’). By its decision the RRT affirmed a decision of a delegate of the Minister not to grant a protection visa to the applicant.

2                     The application for review was filed on 18 June 2001. Consequently, the matter falls to be determined under the Act as it stood prior to the enactment of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

Background

3                     The applicant is a 25 year oldmale who claims to be a national of Sierra Leone. He also claims to be of Creole ethnicity and to be a Jehovah’s Witness. The applicant speaks Krio.

4                     On 31 January 2001, asserting that he had left Sierra Leone in October 2000 and travelled to Australia as a stowaway on a boat, the applicant lodged an application for a protection visa.

5                     On 13 March 2001, a delegate of the Minister refused the application for the protection visa.

6                     The applicant applied to the RRT for review of the delegate’s decision. On 17 April 2001, the RRT conducted a hearing. Subsequently, further submissions were made to the RRT by the applicant’s adviser.

7                     The RRT gave its decision which affirmed the delegate’s decision on 15 June 2001. The RRT’s decision is now the subject of the instant application for review.

Factual background

8                     The applicant gave the following factual account to the RRT:

·        Born in Freetown, Sierra Leone, the applicant was the youngest of three sons who were raised primarily by their father, their mother having died when the applicant was a child.

·        The applicant attended a private secondary school in Freetown from mid 1993 until December 1998 when the escalation of a civil war forced the closure of his school. Subsequently, the applicant was one of many unable to find work and so occupied his time with private study and gardening.

·        Between December 1998 and October 2000, Freetown was under constant attack by rebels of the Revolutionary United Front (‘the RUF’). The area of Wellington in which the applicant and his family lived was a particular target of such attacks. During this time, the applicant felt threatened but was able to keep out of trouble by remaining within the safe zones of Freetown and keeping out of political matters.

·        On 1 October 2000, there was an attack on the compound house in Wellington in which the applicant and his family lived. His father and two brothers were amongst fifteen people killed from neighbouring houses in the attack.

·        Following the October attack, the applicant went to a settlement camp in Waterloo, an area of Freetown about 1.5 kilometres from Wellington where he remained for about two weeks. During this time, the applicant made two visits to his ruined family home and salvaged some money and photographs.

·        The applicant left Sierra Leone in October 2000 for a refugee camp in Conakry, Guinea, at the instigation of the Economic Organisation of West African States Monitoring Group (‘ECOMOG’).  ECOMOG had defended the settlement camp in Waterloo from an attack by RUF rebels and following the attack, encouraged the young men in the camp to go to Guinea. This was for reason of their safety, as those who showed a reluctance to join the RUF would be either maimed or killed.

·        While the applicant was in the refugee camp in Conakry, the Guinean government became suspicious that Sierra Leonean and Liberian refugees were assisting anti-government attacks. Subsequently, the applicant and other such refugees, were captured by Guinean soldiers and imprisoned. The soldiers accused the refugees of assisting Guinean dissidents. Approximately one week later, those detained were escorted to the port in Conakry and issued with an ultimatum to either return to Sierra Leone or Liberia or face the consequences. Subsequently, the applicant boarded a ship to return to Freetown. When the ship docked in Freetown and later Liberia, the applicant remained on the boat, hidden. The ship eventually arrived in Melbourne in December 2000 where the applicant disembarked.

The applicant’s claim of persecution before the RRT

9                     The applicant claims that he fears persecution should he be forced to return to Sierra Leone. In sum, the following matters were put forward in support of his claim:

·        While the applicant does not know the reason for the attack on 1 October 2000 during which his father and brothers were killed, he believes that the attackers belonged to the RUF and suspects that the attack may have been for reason of his father’s prior political history. If the attack was for such reason, the applicant too could be imputed to have a similar political opinion and therefore may be at risk of similar attack.

·        The RUF were known to forcibly recruit young men and there was a real chance that a person such as the applicant would be at risk of such action. His brothers may have been killed because they had resisted recruitment to the RUF and if so, the attack showed the inability of authorities to protect the applicant if he was similarly targeted for recruitment.

·        As a Jehovah’s witness, the applicant’s religious beliefs precluded him from taking part in the war on either side and as a consequence, the applicant fears that he would be regarded as a traitor, or as unpatriotic, for not joining the Sierra Leonean army.

·        The RUF regarded students, amongst others, as the enemy on the presumption that they support the government and the applicant was, therefore, at risk of being singled by the RUF because of his student status.

·        The applicant may be imputed with an anti-rebel opinion because of his Creole ethnicity. In this regard, Creoles were supportive of the military leader Valentine Strasser and are now generally supportive of the Kabbah government.

The RRT’s decision in summary

10                  On 15 June 2000, the RRT affirmed the decision of the delegate not to grant a protection visa to the applicant.

11                  The RRT set out, in its reasons for decision, the applicant’s claims and the evidence he advanced in support of those claims. It also set out the evidence of two witnesses who had given evidence at the hearing on 17 April 2001, being Mr Guy Coffey, a clinical psychologist and Dr Weinkove, a consultant psychiatrist. In addition, the RRT summarised the independent information which it had obtained about Sierra Leone. Most of that information was put to the applicant by the RRT, attention being drawn to particular aspects concerning his claims.

12                  The RRT formed an adverse view of the truth of the applicant’s evidence in respect ofhis schooling and local geography, finding that such evidence did not support his claim to be from Sierra Leone. In particular, the RRT found that the applicant’s awareness of local geography was inconsistent with his claims to have lived where he lived for as long as he did. At p 37 of its reasons for decision the RRT stated that:

‘The applicant said at the hearing that the name of the port in Freetown is Port Loko which he said was like a suburb of Freetown and he identified a picture of Freetown as Port Loko when the delegate showed him a photograph of the city. When I said to the applicant that I thought the main port in Freetown was Kissy, he said that he had heard of Kissy but did not know where it was. Kissy is between Wellington and the centre of Freetown. It is the major port in Sierra Leone. It is in my view implausible that an intelligent person could travel from Wellington to Freetown some fifteen to twenty-five times yet not know that the port was at Kissy’.

13                  The RRT found that it was unable to accept that the applicant was a national of Sierra Leone, stating at p 39 that ‘the evidence in support of the applicant’s claim to be a national of Sierra Leone is greatly outweighed by the evidence which casts doubt on his claim’.

14                  The RRT was also unable to accept the applicant’s account of his experiences. In particular, the RRT found that aspects of the applicant’s account of having lived through the rebel invasion in Freetown were ‘in significant ways unconvincing’, did not accept that there was an attack on the applicant’s home in or around October 2000 and was unable to accept that the applicant had given a truthful account of the fate of his father and his brothers. It also disbelieved the applicant’s claims about the threatened rebel attack on the Waterloo camp and his claim about the taking of young men to Conakry for their own protection.

15                  At the conclusion of its reasons for decision, the RRT stated at p 39:

‘I do not accept that there is a chance that the applicant would be at forcible risk of recruitment by the RUF or at risk of harm from the RUF because his (sic) is a student, because he is Creole, because of his religion, because he lived in an area where a lot of government employees lived or because of any past political activity by his father. I am unable to conclude that the applicant is a national of Sierra Leone and cannot make a finding as to his nationality. I am therefore unable to be satisfied that he has a well-founded fear of persecution and so entitled to Australia’s protection as a refugee.’

16                  The RRT also noted at p 40, referring to the evidence submitted by Mr Coffey and Dr Weinkove, as follows:

‘That I have been unable to accept that the traumatic event which triggered (anxiety and depression) was that described by the applicant does not mean that I do not recognise that he is a young man who has found himself in very difficult and uncertain circumstances.’

Submissions on review

Failure to consider issue of persecution in respect of another country

17                  Pro-bono counsel for the applicant, Mr P Gray, submitted that the RRT’s failure to make a finding on an alternative nationality once it had stated that it was unable to conclude that the applicant was from Sierra Leone, was an error of law within the meaning of the High Court’s judgment in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, (2001) 180 ALR 1.

18                  This submission was framed to fall within several paragraphs of s 476(1) of the Act. In the first instance, counsel for the applicant submitted that the failure to make a finding on alternative nationality involved an incorrect interpretation of the applicable law or an incorrect application of the law to the facts within s 476(1)(a) of the Act. In the alternative, counsel argued that it involved a failure to take into account relevant considerations or relevant material within s 476(1)(b) or s 476(1)(c) of the Act.

19                  In summary, Mr Gray contended that the RRT did not make a positive finding on the applicant’s nationality, it just stated that it was unable to say what his nationality was. The absence of an attempt to make a positive finding of nationality in circumstances where there was material pointing to alternative nationalities than the nationality claimed by the applicant disclosed, according to Mr Gray, an erroneous understanding of the requirements of the Refugees Convention. In this regard, Mr Gray contended that the Refugees Convention requires the decision-maker to decide, not whether the person is a refugee, but whether Australia owes protection obligations to the person. Therefore, Australia would be in breach of the Refugees Convention if it found that it did not owe protection obligations for reasons which included the reason that the decision-maker did not believe that the applicant was from the country he or she claimed to be from.

20                  To support his contention, Mr Gray submitted that there was material before the RRT, including that the applicant spoke Krio, which left open the question of what country the applicant was from and pointed to alternative nationalities. The RRT therefore should have considered whether the applicant would face a risk of persecution if he was returned to Liberia or Guinea. Mr Gray also submitted that if the evidence left open the issue, it did not matter that the issue was not raised by the applicant.

21                  Additionally, Mr Gray submitted that the RRT erred in that it expressed doubt about the applicant’s nationality which was the kind of doubt about its findings on material questions of fact referred to by Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam (2001) 93 FCR 220 at 240-241, [66]. The doubt was said by Mr Gray to exist in the finding by the RRT that the evidence in support of the applicant’s claim to be a national of Sierra Leone is ‘greatly outweighed by the evidence which casts doubt on his claim’. Mr Gray submitted that the alleged nationality of Sierra Leone is equivalent to what Sackville J described as an ‘alleged event’; an alleged nationality being in a sense a series of events. Having expressed such doubt, the RRT was required to speculate whether the applicant may be a national of Sierra Leone.

22                  In response to Mr Gray’s argument about the obligation of the RRT to consider the alternative nationality of the applicant, counsel for the respondent, Mr Mosley, submitted that if the RRT finds that an applicant for a protection visa is not from the country which he or she claims to be from, then any claim of persecution with respect to that country must necessarily fail. Such claim of persecution in that country having failed, the RRT is then under no obligation to further consider whether the claimant is from any other country. A number of authorities were cited in support of this interpretation of the obligations of the RRT.

23                  In response to Mr Gray’s Rajalingam submission, Mr Mosley submitted that the RRT made very firm findings on all relevant factual issues. He further submitted that the RRT’s finding that the evidence in support of the applicant’s claim was greatly outweighed by the evidence which cast doubt on his claim was not a finding of the sort referred to in Rajalingham.

No evidence

24                  Mr Gray also relied upon s 476(1)(g) of the Act which provided at all material times that:

‘Subject to sub-section (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. ‘

25                  Mr Gray submitted that the findings of the RRT that the applicant’s awareness of the geography of the relevant area was inconsistent with his claim to have lived there for as long as he said he had and more particularly that the applicant did not know about ‘the port of Kissy’ were findings which were made without evidence and therefore enlivened the ground of review in s 476(1)(g) of the Act. Mr Gray submitted that the findings were based on a particular fact, namely that ‘Kissy … is the major port in Sierra Leone’, a fact which was non-existent in the context of s 476(4)(b) of the Act. In this regard, Mr Gray argued that the material cited by the RRT for this fact ‘only suggests’ that the main port area is at Kissy and does not suggest that the port goes by the name of Kissy.

26                  Mr Gray also contended that there was no evidence to justify a finding that the applicant did not know about ‘the port of Kissy’ since he had stated, ‘I know of Kissy but that is not a major port’.

27                  Mr Mosley replied by submitting that the RRT did not assert that Kissy was the name of the major port in Sierra Leone, rather just that the port was located in Kissy, Freetown.

28                  Further, relying on Minister for Immmigration and Multicultural Affairs v Indatissa [2001] FCA 181, Mr Mosley submitted that there was evidence upon which the RRT could find that the main port in Freetown was at Kissy or that Kissy was the major port in Sierra Leone. Mr Mosley submitted that the applicant had failed to prove that the alleged fact was non-existent.

29                  Additionally, Mr Mosley contended, relying upon Vichlenkova v Minister for Immigration & Multicultural Affairs [1999] FCA 1338 in support, that in any case, the RRT’s decision to affirm the refusal of the grant of a protection visa was not ‘based’ upon the existence of the fact which Mr Gray contended did not exist, as that fact was not critical to the making of the decision. In this regard, Mr Mosley noted the number of findings which the RRT had made in reaching its decision, including its findings in relation to the applicant’s evidence about his schooling and the attack in which his family members were killed.

30                  Finally, Mr Mosley submitted that in any event, there was evidence to justify the decision of the RRT apart from the material about the port of Kissy.

Consideration

Failure to consider issue of persecution in respect of another country

31                  The applicant only made claims about having a well founded fear of persecution with respect to Sierra Leone and not with respect to any other country. Having rejected his claims concerning Sierra Leone, the RRT was not bound to consider whether the applicant feared persecution if he was returned to another country close to Sierra Leone. This approach is consistent with the judgments of Mansfield J in Hussaini v Minister for Immigration and Multicultural Affairs [2001] FCA 278 and Ali Mohsen v Minister for Immigration and Multicultural Affairs [2001] FCA 1206. His Honour’s judgment in Hussaini was affirmed by a Full Court; see Hussaini v Minister for Immigration and Multicultural Affairs [2002] FCA 104. At [11] to [13] of the Full Court’s judgment in Hussaini, the following was said:

‘In our opinion there is no error of law disclosed in the Tribunal’s reasons. The appellant put his claim on the basis that he was of Hazara ethnicity, Shi’ite religion, and a resident of a village called Chehel Dokhtaran in Ghazni province of Afghanistan and that he had left that village following his uncle’s abduction by the Taliban. The Tribunal found as a matter of fact that it was not satisfied that he was a resident of the village Chehel Dokhtaran. It was left ‘with doubts as to the genuineness of the applicant’s story’. In content, although expressed in terms of doubt, this does appear to be a rejection of the appellant’s claim that his uncle had been abducted from that village.

The language analyst’s evidence was really directed to the question of ‘national origin’ in the sense of residency rather than in the sense of formal citizenship. Having regard to the discussion of the evidence by the Tribunal, although the Tribunal expressed its findings in terms of citizenship it was plainly also directed to residency which was underlying factual question addressed by the language analyst’s evidence and to which its consideration of the credibility of the appellant’s evidence was directed. On a reading of the Tribunal’s reasons it has, in effect, found that the appellant has not made out his claims to be a resident of Afghanistan fleeing from Taliban persecution. The Tribunal is not obliged to make any positive finding as to the appellant’s nationality or country of origin. It is concerned to determine whether the appellant’s claim for a protection visa on the ground that he is a refugee as defined by Art 1(A) of the Convention is made out.

In its reasons the Tribunal rejected the appellant’s claims in respect of his nationality and residence in Afghanistan. It concluded that, as he had made no claims about persecution in any another country, it was not satisfied that he had a well-founded fear of persecution for a Convention reason. In these circumstances no question under Art 33 arose for its consideration.’

32                  I consider that the Full Court judgment in Hussaini precludes me from accepting Mr Gray’s submission on this issue. In any event, given that no claims were made with respect to any other country, the RRT is not under any obligation to make out a case for the applicant, being one which is not made by the applicant. In this regard, see Abedi v Minister for Immigration and Multicultural Affairs [2001] FCA 1081 at [22] where Hely J said that:

‘The applicant claimed to be a national of Afghanistan, and the RRT was not satisfied that he had made good that claim. It was not required to then go on and enquires (sic) whether the applicant was a national of some other country, and if so, which country, because the applicant has not made any claims to any country other than Afghanistan.’

33                  Hely J’s judgment in Abedi was recently endorsed by a Full Court; Abedi v Minister for Immigration and Multicultural Affairs [2002] FCA 208. See also Raza v Minister for Immigration & Multicultural Affairs [2002] FCA 350.

No evidence

34                  As was said by a Full Court in Kola v Minister for Immigration and Multicultural Affairs [2002] FCA 265 at [58]:

‘Section 475(4)(a) of the Migration Act provides that the ‘no evidence’ ground specified in s 476(1)(g) is not to be taken as having been made out unless the decision-maker was required by law to reach that decision only if ‘a particular matter was established’ and there was no evidence from which the decision-maker could reasonably be satisfied that the matter was established’.

35                  The RRT found that the applicant’s knowledge of the geography of the Freetown area was inconsistent with his claims of having lived there for a long time. That finding was based on the existence of a particular fact that Kissy was the major port in Sierra Leone. It was put by Mr Gray that that fact did not exist.

36                  The RRT’s finding that the applicant was not aware of the geography of the area he allegedly came from was not based on any finding about Kissy, or the port of Kissy, alone. The RRT’s finding about the applicant’s lack of relevant geographical knowledge also arose from the applicant’s lack of familiarity with the geographic position of other places in Sierra Leone such as Port Loko.

37                  There was evidence, apart from any evidence of the applicant about Kissy or the port of Kissy, on which the RRT could be satisfied that the applicant did not know the geography of the area in which he claimed to have lived. The first aspect of that evidence was the applicant’s lack of knowledge about the actual location of Port Loko. The second aspect of the evidence concerned country information emanating from the Central Intelligence Agency of the United States of America (‘the CIA’). The CIA material revealed that Kissy was a major port area, close to Freetown, contrary to recollections of the applicant.

38                  Even if the RRT was in error about the port of Kissy, assuming the CIA material to be wrong and the applicant’s evidence about Kissy to be correct (as not being a major port area), the RRT was entitled to rely on the applicant’s lack of knowledge about the location of Port Loko to come to a view that it could not be satisfied that the applicant was in truth a citizen of Sierra Leone.

Disposition

39                  Having regard to the foregoing, the application must be dismissed, with costs.

Associate:

Dated:              5 April 2002