FEDERAL COURT OF AUSTRALIA

AAR15 v Minister for Immigration and Border Protection [2016] FCA 150

ORDERS

THE COURT ORDERS THAT:

1.    The time for filing an appeal is extended to 12 October 2015.

2.    The appeal is dismissed.

3.    The appellant is to pay the respondent’s costs of the appeal fixed in the sum of $1,000.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Before the Court is an application for an extension of time within which to bring an appeal from orders made by Judge Street in the Federal Circuit Court on 14 September 2015. His Honour refused an application for review of a decision of the Refugee Review Tribunal (the Tribunal), now the Administrative Appeals Tribunal, delivered on 19 January 2015. The Tribunal affirmed the decision of a delegate of the respondent, the Minister for Immigration and Border Protection, not to grant the appellant a protection visa.

2    Although the proceeding in this Court commenced as an application for an extension of time, the moving party is referred to as the appellant. As it turns out, the Minister does not oppose the grant of an extension of time and, consequently, the hearing was of the appeal.

3    The appellant is a national of the Democratic Republic of the Congo (the DRC). He is a member of the Kasai-Luba ethnic group from the province of Katanga. He is approximately 25 years old and left the DRC when he was nine years old, consequently, in about 2000. He fled to Zambia with his siblings. The reason for their exit was that the appellant’s brother had written a letter opposing the Kabila government and, as a result, was subjected to threats of violence from supporters of the government. The appellant then spent a considerable number of years in a refugee camp in Zambia.

4    The application for a protection visa has taken an unusual course in that almost all of the appellant’s original claims were later accepted by the appellant to have been made untruthfully, and he submitted before the Tribunal a revised statutory declaration setting out claims to fear persecution on new bases. Some of the revised claims advanced in the Tribunal are the claims which are now the subject of appeal.

5    The claims presently the subject of appeal originally formed only a relatively small part of the claims made by the appellant in the Tribunal. For example, the appellant claimed in the Tribunal that he feared that, if returned to the DRC, he would face persecution as a returned asylum seeker. This claim was rejected and is no longer pursued. There was, furthermore, at the forefront of the appellant’s case before the Tribunal, a claim that he feared persecution as a result of his political opinion. That claim is not part of the appeal either. The focus, therefore, in these reasons will be on those parts of the claim which directly bear on the appeal.

6    The first of those claims is a claim that the appellant feared persecution in the DRC on the basis of his ethnicity as a member of the Kasai-Luba people. It is perhaps interesting to note in passing that the way this claim arose was apparently from questioning by the Tribunal. This is recorded in [37] of the Tribunal’s reasons as follows:

The Tribunal asked the applicant whether he considered he was a member of any particular social group. He claimed that he feels that as a member of the Luba-Kasai tribe in Katanga he would be targeted for harm.

7    The Tribunal systematically dealt with and assessed each of the refugee protection claims in succeeding paragraphs of its decision. In [79], it dealt with the claim based on the appellant’s ethnicity as follows:

The Tribunal considered the applicant’s claim that he fears returning to the DRC for reasons of his ethnicity and because of ethnic violence in DRC. The applicant claims he is of the Kasai tribe but most of the people in their area were Katangan and the Katangan people were being accused of having contact with rebels. The applicant claimed that he fears he will be killed because of his ethnicity and the violence that is being inflicted on the population by government soldiers, rebels and through ethnic clashes. The Tribunal had regard to the country information before it, and the country information submitted by the applicant’s representative. It acknowledges trouble and violence erupts in DRC due to ethnic tensions, however, it does not consider the applicant will be targeted or that he faces a real chance of serious harm should he return there. Having regard to the country information before the Tribunal, the Tribunal accepts the ICG cited above [sic] which states that over the past few years, tensions have decreased and many Kasaians have returned to Lubumbashi and Likasi. Having regard to all of the evidence, the Tribunal considers that the applicant does not face a real chance of serious harm for reasons of his ethnicity now or in the reasonably foreseeable future if he returns to Likasi.

[Footnote omitted; emphasis added.]

8    The matter was also touched upon in [85] as follows:

The applicant claimed that the supporters of the Kabila government in DRC have a feeling that his tribe is against the government. He repeated that the problem started with his brother and that as a result of that his family name is well known. The Tribunal considered the country information on this question, including country information which indicates that tensions have decreased, and rejects the claim that the applicant faces a real chance of serious harm in respect of the applicant’s ethnicity.

9    Before it made a determination on the ethnicity claim, the Tribunal set out in a section of its decision headed “Independent Country Information” some information relevant to this particular claim as follows:

Information on the relationship between the Kasai and Katangan tribes

46.    It is noted that most people of Kasai origin in Katanga Province belong to the Luba tribe, and as such are referred to as Kasai-Luba. Further, no reports were found regarding the relationship between the Kasai-Luba and other ethnic or tribal groups in Katanga Province or elsewhere in the DRC. Of note, the tribal system in the DRC is complex; there are over 480 different tribes throughout the country.

47.     Limited recent information was located explicitly discussing ethnically-motivated conflict between Kasaian immigrants and other Katangese residents.

48.    That said, sources do report a long history of conflict, and violence, between the Kasaian Luba and the Katangese Lunda. The Belgian colonial administration encouraged the Congolese to identify with ‘rigid’ tribal homelands. This made it easier for the administration to control the labour market; “[r]ecruitment to mines, plantations, civil service and the army became based on tribal identity”. There was mass migration to resource-rich Katanga; ethnic identities became fragmented between the immigrant Luba, from neighboring Kasai, and the Lunda, who were considered indigenous Katangese. Many Kasaian Luba reached senior positions in mining companies and Katangese administration, causing tensions between them and other Katangese. These tensions became even more pronounced in the early 1960s when the Kasaian community sided with the state against the Katangese secession movement.

49.    The ICG argues that in 1992-1993, the state “adopted an explicit policy of ethnic cleansing against the Luba in Katanga’s major mining cities, in particular Kolwezi”. Katanga’s governor blamed the Luba for economic decline and accused them of attempting to steal power at the provincial level. The ICG reports that during 1992-993, state-supported youth militia killed over 5,000 people, and displaced 1,350,000. Security forces detained 75,000 people who were eventually evacuated by humanitarian organisations to their ‘homeland’ of Kasai. In 2006, ICG reported that there was “remarkably little” public discussion of the violence, and added that “[o]ver the past few years, tensions have decreased and many Kasaians have returned to Lubumbashi and Likasi, though not to Kolwezi where most killings took place”. In 2008, the UK Home Office reported that some 750,000 Kasaians who fled Katanga during the war had not returned to the province.

50.    Some sources refer to recent Luba-Lunda ‘conflict’ or ‘tensions’, however few of these sources sufficiently elaborate of how this conflict manifestss [sic]. The late president Laurent Kabila, father of the current president Joseph Kabila, reportedly managed to bridge these tensions in the late 1990s as his father was Luban and his mother Lunda. However, as mentioned previously, Laurent Kabila was assassinated in 2001. In 2005, a United Nations High Commissioner for Refugees (UNHCR) report noted that ethnic conflict was “apparent” between the Kasaian Luba and Katangese Lunda.

51.    In 2006, the Luba-Lunda conflict reignited in the lead up to presidential elections; opposition parties in Katanga often comprised Luba members, and there were reports that opposition parties were intimidated by government-supported youth militia. At the time, ICG reported that Katanga province was divided by “tensions between southerners and northerners, between outsiders and natives, and between Mai-Mai militias and the national army”.

52.    Little additional information was located regarding the current situation for Kasaian Luba living in Katanga. In 2011, Minority Rights Group International (MRG) listed the Luba as a minority group under threat in the DRC, meaning that they are considered to be at future risk of “genocide, mass killing or other systematic violent repression”. The MRG noted that the DRC is one of seven countries that have consistently remained near the top of its watch list.

[Footnotes omitted.]

10    In the Tribunal, the appellant also advanced a claim of fear of persecution as a result of the activities of the Mai Mai militia groups. The Tribunal recorded and determined this claim in [89] as follows:

The applicant claimed at the hearing that he may face harm as a result of the activities of the Mai Mai. The Tribunal considered this claim. It accepts that the term Mai-Mai refers to community-based militia group active in the DRC, formed to defend their local territory against other armed groups. It accepts there is country information to indicate that some Mai-Mai formed to exploit the war for their own advantage by looting, cattle rustling or banditry. Mai Mai Kata Katanga, also called Mai Mai Bakata Katanga, is a rebel group in the Democratic Republic of the Congo, that claims to fight for the independence of Katanga Province. The Tribunal considered whether there is a real chance that the applicant would be targeted for serious harm by the Mai Mai and is not satisfied that on the evide4nce [sic] before it he faces such a chance. It considers, based on the country information before it, that the focus of Mai Mai in DRC is against the state’s armed forces and other militia groups. Based on the evidence of the applicant’s circumstances, the Tribunal considers the applicant would not be of any adverse interest to the Mai Mai and considers his chance of serious harm at the hands [sic] to be remote.

[Footnotes omitted.]

11    Again, prior to the assessment of the claim, the Tribunal had set out in the “Independent Country Information” section certain country information bearing upon violence in the DRC, particularly in the east, as a result of the activities of the Mai Mai, as follows:

Information on generalised violence in the DRC

53.    Violence is particularly prevalent in the eastern regions of the DRC, within the context of ongoing conflict between the government and armed groups in these areas. Reports provide differing assessments about whether the military’s defeat of the Mouvement du 23 mars (M23) militia in November 2013 has improved the security situation in the eastern areas of the country where the group was concentrated. With respect to the rest of the country, reports indicate that violence also occurs outside of the key ‘conflict zones’ of the eastern regions. It is noted that no sources were found identifying areas where violence does not occur, or is low, in the DRC.

Violence in the eastern regions of the DRC

54.    Sources consulted indicate that violence is particularly high in the eastern provinces of the country, where armed conflict between government security forces and local militia groups (also called Mai Mai) is ongoing. By way of background, in 2014 Medecins Sans Frontieres (MSF) provided the following overview of the conflict in the eastern areas of the country:

After a period of relative calm in 2010 and 2011, active fighting resumed in Katanga province, causing widespread panic and leading to massive displacement. The situation worsened in early 2013 as the Congolese army prepared for offensive operations against Mai Mai militias, and tens of thousands more were displaced. In Orientale province, intensifying clashes between the Congolese army and various militia groups have also caused significant population displacement.

55.    In its 1 September 2014 report on the human rights situation in the DRC, the UN Human Rights Council reported that ‘numerous armed groups as well as members of the Congolese defence and security forces regularly commit serious human rights violations, particularly in the eastern provinces affected by the conflict’ including North Kivu, South Kivu, Orientale and Katanga, as well as in some areas of Maniema. According to the report, more than 75 per cent of victims of ‘human rights violations’ documented by the UN Joint Human Rights Office (UNHRO) between June 2013 and May 2014 were registered in the provinces of North and South Kivu, Katanga and Orientale. In March 2014, the UN Security Council reported that ‘during the period under review, the security situation in eastern’ DRC ‘remained volatile and was marked by sporadic attacks by various armed groups.’ In its 2014 Country Operations Profile – Democratic Republic of the Congo, the UNHCR similarly reported that there was ‘ongoing instability’ in the eastern areas of the country’ and noted that ‘armed conflict is ongoing in the east of the country.’ In its 2014 annual report, Human Rights Watch stated that armed militia groups ‘continue to carry out brutal attacks on civilians across eastern Congo.’ In April 2014 the UK Foreign and Commonwealth Office (FCO) reported that ongoing fighting in the eastern provinces of the DRC has caused large numbers of displaced people:

Fighting in eastern DRC between the DRC armed forces and armed groups continues to cause the displacement of many people as civilians move to avoid the violence and shelling.

[Footnotes omitted.]

12    Before the Federal Circuit Court, the appellant sought review of the decision of the Tribunal on the ground that the Tribunal’s decision involved irrationality. In essence, the claim was that the Tribunal had rejected the claim based on ethnicity relying upon the 2006 report of the International Crisis Group (the ICG), which had been referred to particularly in [49] of the Tribunal’s decision, whereas there was later information contradicting the information in that report. The appellant contended before the Federal Circuit Court that it was unreasonable for the Tribunal to rely upon outdated information when contrary and more current information existed. The Federal Circuit Court rejected this contention and determined in [20] and [21] as follows:

20.    On a fair reading of the Tribunal’s reasons, the sentence preceding the emphasised sentence in para.79 is clearly an adverse finding taking into account the whole of the country information to which the Tribunal has had regard. It is a matter for the Tribunal to determine which country information the Tribunal accepts. It is clear in this case that the Tribunal did have regard to the most up-to-date country information available but accepted in its findings the position identified in the 2006 report in its findings in para.79.

21.    Whilst I accept Mr McIntyre’s proposition that there is other information that might have been open to the Tribunal to come to a different view, I do not accept that no reasonable Tribunal could accept the 2006 report in relation to the findings made in para.79. That adverse finding is not one that could be said to lack an evident and intelligible justification within the principles identified in The Minister for Immigration and Citizenship v Li.

13    The appellant then appealed to this Court on the following grounds:

1.    The learned trial judge misdirected himself in law in finding that there was an evident and intelligible justification for the Tribunal to accept and rely upon a 2006 country report concerning the Democratic Republic of the Congo which stated that over the past few years tensions had decreased and many of the ethnic group of the Appellant had returned to the city in the province in which he was born, in deciding that the Appellant did not face a real chance of serious harm for reasons of his ethnicity if the returned [sic] to that city, when the Tribunal also had regard to country information in 2011, 2013 and 2014 consistent with an ongoing state of ethnic violence in the province in which the Appellant was born, and inconsistent with the 2006 country report.

2.    The learned trial judge erred in law by misdirecting himself that what was in issue was whether a reasonable Tribunal could accept the 2006 report, rather, he should have directed himself to the issue of whether a reasonable Tribunal, making a decision on 19 January 2015, could reasonably reach a conclusion that the Appellant did not face a real chance of serious harm for reasons of his ethnicity when the Tribunal expressly took into account, in addition to the 2006 report, without expressing any rejection of the same, or any reason to do so, country information in 2011, 2013 and 2014 consistent with an ongoing state of ethnic violence in the province in which the Appellant was born.

14    In carefully prepared and comprehensive written submissions, Mr McIntyre SC, who appeared on behalf of the appellant, first referred to the reference in the Tribunal decision in [49] to the 2006 ICG report to the effect that, at that time, tensions had decreased and many Kasaians had returned to Lubumbashi and Likasi, though not to Kolwezi, where most of the killings took place.

15    The written submissions then argued that there was information referred to by the Tribunal which contradicted this conclusion and was more up-to-date so that it was irrational for the Tribunal to have relied upon the 2006 ICG report in those circumstances.

16    The first category of information came from [49] to [52] of the Tribunal decision itself. Firstly, attention was drawn to the Tribunal’s reference to the 2008 UK Home Office report that some 750,000 Kasaians who had fled Katanga during the war had not returned to the province. Next, the appellant’s written submissions noted the Tribunal’s reference to “recent Luba-Lunda ‘conflict’ or ‘tensions’” in [50]. Further, in [51] of the Tribunal decision the appellant relied on the report that the Luba-Lunda conflict was reignited in 2006 in the lead-up to presidential elections; and finally in this category the appellant relied upon the Tribunal’s reference in [52] to the 2011 Minority Rights Group International report, which “listed the Luba as a minority group under threat in the DRC, meaning that they are considered to be at future risk of ‘genocide, mass killing or other systematic violent repression’”.

17    The appellant’s written submissions then relied upon a second category of information set out by the Tribunal in [53] to [55], which referred to the high level of violence reported particularly in the east of the DRC. These reports were current in 2014 and, for instance, included a reference to the Médicins Sans Frontières report of 2014, which is extracted above at [11] but is set out below for convenience:

After a period of relative calm in 2010 and 2011, active fighting resumed in Katanga province, causing widespread panic and leading to massive displacement. The situation worsened in early 2013 as the Congolese army prepared for offensive operations against Mai Mai militias, and tens of thousands more were displaced. In Orientale province, intensifying clashes between the Congolese army and various militia groups have also caused significant population displacement.

18    The appellant’s argument was stated succinctly in [21] of his written submissions as follows:

It was argued for the Appellant before the primary Judge that, relying on a 2006 report, which referred to the few years previous to that, does not reasonably or logically provide a basis for a conclusion as to the risk of persecution of the Applicant at the time of the Tribunal’s decision in 2015, in the context of the findings and observations of the Tribunal, referred to above, as to the situation in 2011, 2013 and 2014. The Tribunal could not reasonably conclude, as it did at [79], that the ‘country information before the Tribunal’ (and then citing only the 2006 ICG Report) led to the conclusion that ‘the applicant does not face a real chance of serious harm for reasons of his ethnicity now or in the reasonably forseeable future if he returns to Likasi’, a township in the eastern province of Karanga [sic].

19    In essence, the appellant’s argument on the appeal was that the choice of the Tribunal to accept the 2006 ICG report over the later contradictory reports was unreasonable.

20    The primary judge did not explain why it was that he came to the conclusion that this process was not unreasonable. His Honour did not examine whether the Tribunal’s reasons revealed why it took the approach of accepting the 2006 ICG report when deciding the case in 2015. The treatment of the issue in the Federal Circuit Court was superficial. Had the reasoning been better exposed, this appeal may have been avoided. It is therefore necessary to examine what the Tribunal did.

21    The Tribunal separated each of the different claims. Thus, it treated one of the claims as being based on the appellant’s ethnicity. It treated another as based on the threat of violence from the Mai Mai. That is, in part, how the appellant put forward his claims to fear persecution. The passages from the decision of the Tribunal referred to earlier in these reasons demonstrate the process adopted by the Tribunal of separating the appellant’s different claims, and how the Tribunal then referred to and described separately the country information applicable to each claim.

22    In relation to the claim of fear of persecution based on ethnicity, the Tribunal set out the country information, including [46] to [52] referred to earlier in these reasons. In relation to the claim of fear of persecution based on violence from the Mai Mai, the Tribunal set out the country information, including [53] to [55]. The Tribunal then analysed the separate claims against the relevant country information. Part of the appellant’s arguments sought to use the post-2006 information concerning the violence feared from the Mai Mai in support of his claimed fear based on his ethnicity. But that country information did not relate to that claim. There is no basis for concluding that the Tribunal acted unreasonably by not having regard to that information in respect of the ethnicity claim.

23    The Tribunal assessed the country information directly relevant to the ethnicity claim. It concluded that the appellant was unlikely to be a target of ethnic violence. Although that finding was not explained, the conclusion is not contested in this appeal. Then, from the country information, the Tribunal concluded that whilst there was evidence of violent outbreaks, there was a pattern of significant progress since the massacres in 1992 and 1993. Violence had decreased by 2006 and large numbers who had previously fled, returned, although many had not. The only information about ethnic violence post-2006 was contained in [52] of the reasons of the Tribunal. Leaving aside the information from a 2008 UK Home Office report that many Kasaians who fled during the war had not returned to Katanga, paragraphs [50] and [51] relied upon by the appellant referred to the situation either prior to or in 2006 and, presumably, contemporaneous to or earlier than the 2006 ICG report.

24    In [52] the Tribunal indicated, firstly, that there was little additional information located regarding the current situation for Kasaian Luba living in Katanga. On the face of it, the information from the 2011 Minority Rights Group International report referred to in [52] was important information about the state of affairs in the DRC after 2006 to which the earlier evidence had been directed. The evidence was that the Kasaian Luba were “considered to be at future risk of ‘genocide, mass killing or other systematic violent repression’”. It would have been desirable, looking at the matter in retrospect, if the Tribunal had explained why it preferred the earlier evidence from 2006 to this evidence in light of the very serious allegations made in the later 2011 report. One can only glean from the brief reference, perhaps, the reasons for the Tribunal’s approach.

25    Mr French, who appeared as counsel on behalf of the Minister, drew attention to the first sentence in [52], where the Tribunal noted that there was limited information available about this particular ethnic group in the particular area in issue in this case. It may have been that that limitation points to a reason why the Tribunal placed no emphasis on the 2011 report. The Tribunal was entitled to assess the evidence contained in the country information referred to in [46] to [52], and come to the view that the picture presented from the flow of history up to 2006 was a better guide than the report in 2011. It was not unreasonable to adopt that approach and consequently the critical evidence on which the appellant relies does not support his contention that the Tribunal acted unreasonably.

26    For those reasons, the appeal must be dismissed.

27    The Minister sought costs on the basis that he has succeeded in the appeal. As explained in these reasons, one can understand a degree of puzzlement on the part of the appellant for the decision of the Federal Circuit Court. The basis upon which the primary judge came to the conclusion that the Tribunal had not acted unreasonably was, as has been explained, superficial and glib. It was not sufficient to give any insight to the appellant about the reason that it was not unreasonable for the Tribunal to rely on the 2006 ICG report. It seems unfair in those circumstances that the appellant needs to come on appeal in order to get a proper evaluation of the Tribunal’s decision, albeit that the outcome is the same.

28    In those circumstances, as the question of costs is a matter for the discretion of the Court, justice will be best served by fixing the costs of the appeal and allowing them to the Minister, but at an amount which reflects some consideration for the possibility that had the primary judge made the position as clear as it should have been, the appeal might not have been necessary. Consequently there will be an order that the appellant pay the respondent’s costs of the appeal fixed at $1,000.

Associate:

Dated:    25 February 2016