W248/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 51 (5 February 2002)

Last Updated: 5 February 2002

FEDERAL COURT OF AUSTRALIA

W248/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 51

MIGRATION - protection visa - whether Tribunal in error of law in affirming respondent's rejection of application - whether Tribunal failed properly to inquire into two bases of claim - whether Tribunal failed to make a necessary finding of fact as to circumstance of applicant's second departure from his country - whether Tribunal ignored relevant material

Migration Act 1958 (Cth) ss 476, 476(1)(b), 476(1)(c), 476(1)(e)

Applicant A & Anor v Minister for Immigration & Multicultural Affairs [1997] HCA 4; (1997) 190 CLR 225 cited

Minister for Immigration & Ethnic Affairs v Ibrahim [2000] HCA 55; (2000) 175 ALR 585 cited

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 cited

W248/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W248 of 2001

RD NICHOLSON J

5 FEBRUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W248 of 2001

BETWEEN:	W248/01A APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	5 FEBRUARY 2002
WHERE MADE:	PERTH

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.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W248 of 2001

BETWEEN:	W248/01A APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	5 FEBRUARY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1 This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 24 May 2001. The Tribunal affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa. This application is made pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act").

2 The applicant is a citizen of Burundi who arrived in Australia on 24 November 2000.

Relevant provisions

3 Under s 36(2) of the Act a non- citizen in Australia is eligible for a protection visa if that person is someone: "... to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967. The expression "Convention" will be used to mean the Convention as amended by the Protocol. The same criterion appears in Sch 2 of the Migration Regulations in which item 785 and 866 both include the same criterion.

4 Article 1A(2) of the Convention defines a "refugee" to be any person who:

"...owing to a 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it".

5 The reasons specified in Art 1A(2) are known as Convention reasons. The existence of such reasons threatening the life or freedom of a refugee in a territory to which it is proposed he or she be expelled or returned gives rise to a protection obligation prohibiting such expulsion or return as a consequence of Art 33 of the Convention.

Tribunal's findings and reasoning

1. The Tribunal accepted the applicant as a credible witness and accepted the facts of his case as he presented them at the hearing. It found his knowledge of a number of points, including geographical data, was in accordance with independent information.

2. The Tribunal found the applicant to be a citizen of Burundi, a Hutu and a former resident of Buyenzi, a suburb of Bujumbura (the capital of Burundi).

3. The applicant left home as described by him, prompted specifically by fear of involuntary conscription by fellow Hutus.

4. His subsequent testimony about his movements in South Africa and back and that all his family members are missing was accepted and he was found to be one of the displaced persons of the civil war in Burundi.

5. The applicant left his country in 1992 at a time when inter-ethnic tensions continued to fester. He was away from Burundi when the violence was at its worst from mid 1994 and throughout 1995. By late 1995 the capital of Burundi had been effectively purged of any significant Hutu presence.

6. However despite ongoing skirmishing, the applicant survived and made his way out of the country again before July 1996.

7. There was no question there had been a prolonged period of conflict in Burundi and many innocent people had been killed, many of whom were Hutus. However, the Tribunal was not of the view that the applicant's return to Burundi necessarily would give rise to a well-founded fear of persecution for reason of his Hutu ethnicity.

8. The Tribunal then said in support of the previous proposition:

"The High Court emphasised in the case of Applicant A that notwithstanding the humanitarian aims of the Refugees Convention, there are limits to its humanitarian scope.

The hardships and dangers to persons caught up in a war or civil disturbance do not, without more, amount to persecution within the meaning of the Convention. The situation today in Burundi, judging by the independent evidence, suggests a country where there is a military dominated by one group - the Tutsi - and rebel militias of the other group - the Hutu. Both these sides will engage in actions without attention to the risks of civilians. Although their activity is much diminished from the heights of violence it reached in former years, there are still violent skirmishes. Hence in areas of Burundi there still exists a state of indiscriminate violence or general danger affecting the whole community.

In such a situation, any civilian - Hutu, Tutsi, Twa (the indigenous people) or a foreign aid worker - can be at risk of becoming "collateral damage", as the Americans say. The Tribunal is satisfied that an individual Hutu - say the applicant - would not be targeted by the Tutsi authorities for simply being a Hutu: not without something additional, such as being an activist in a political party, or carrying a weapon and/or wearing a uniform, such as a rebel militiaman would do."

9. Applying this to the particular case of the applicant the Tribunal then said:

"The applicant has spent all but a few months outside his country since 1992. He has no affiliations with any political group. He has indicated no desire to join the rebels, indeed, he left the country specifically so he would not be caught up with Hutu militia. On return to Burundi, he would be simply part of the general population. If he returns to Buyenzi, he will be returning to Bujumbura, the capital, as discussed already. The situation in Bujumbura is reported by DFAT to be "currently calm ... no large-scale, targeted killings of people from particular ethnic backgrounds [but] several random attacks over the past six months ... killings were indiscriminate and within Bujumbura this violence has now been contained" (DFAT cable of January 2001 at CX49056). This cable was written into the primary decision and referred to by the Tribunal at hearing."

10. The applicant would not be sent to one of the regroupment camps established in September 1999 as these have now been closed, apparently following strong pressure from Nelson Mandela according to a report from Amnesty International. This was seen by the Tribunal as the affect of the pressure exerted by world opinion having an effect. The Tribunal noted an aspect of the Amnesty International report which, while referring to failings of the Peace Agreement, its occurrence and implementation represented the best opportunity in recent years to ensure better respects for human rights and Burundi's future, providing a framework to acknowledge and investigate past human rights abuses and to reform and strengthen institutions such as the judiciary and army.

11. The applicant did not depart from Burundi out of fear of persecution for a Convention reason.

12. If the applicant were to return to Burundi in the reasonably foreseeable future, the chance that he would be subject to harm that could be called persecution for a Convention reason was remote.

13. It followed that the Tribunal was not satisfied the applicant had a well-founded fear of persecution for a Convention reason so that Australia had no protection obligations to him and he did not satisfy the criterion set out in s 36(2) of the Act to obtain a protection visa.

Ground one: failure to properly inquire into and make findings on whether applicant had a well-founded fear of persecution for reasons including "membership of a particular social group" or actual or imputed "political opinion"

6 This ground is brought in reliance upon s 476(1)(e) of the Act so far as it applies to error of law arising from incorrect interpretation of the applicable law; alternatively, s 476(1)(b), absence of jurisdiction; and further alternatively, s 476(1)(c), absence of authorisation by the Act.

7 The particulars to this ground refer to portions of that passage of the reasons of the Tribunal as appears at point 8 above. It is contended firstly, the reference to the humanitarian scope of the Convention showed a distraction of the Tribunal from the real question. It is said that, viewed in isolation, this reference is unexceptional and not incorrect. However, it is then contended that the assertion, at a level of generality in which it is made, raises the question whether there has truly been a proper application of Art 1A(2) of the Convention into domestic law by ss 5(1), 36(2) and 65(1) of the Act. Here it is contended that in contrast to the outcome of the circumstances in Applicant A v Minister for Immigration & Multicultural Affairs [1997] HCA 4; (1997) 190 CLR 225, there can be little doubt that members of the Hutu ethnic group in Burundi constitute a "particular social group": Applicant A at 241 per Dawson J and 285 per Gummow J.

8 The second reference is the passage referring to hardships and dangers of persons caught up in a war of civil disturbance. Again, it is said this passage is not in itself incorrect. However, it is then said that the labelling of the conflict as a war or civil disturbance gives rise to the question whether an appropriate application of the preconditions for the grant of the protection visa has been applied. This is supported by reference to the fact that imprecise labels can only constitute distractions: Minister for Immigration & Ethnic Affairs v Ibrahim [2000] HCA 55; (2000) 175 ALR 585 at [146 - 147] per Gummow J and [205] per Hayne J.

9 The third particularisation is in the reference to any civilian being at risk of becoming "collateral damage". This, again, is said to show the risk of the Tribunal having been distracted.

10 The fourth particularisation refers to the final sentence of the quoted passage in point 8 above.

11 These particularisations, severally and in combination, are said on behalf of the applicant to show that the Tribunal focused on mere generalities and false issues. In particular, it is submitted, there was no identification by the Tribunal of the real issue which was whether the applicant had a well-founded fear of persecution for reasons that included (not necessarily exclusively) "membership of a particular social group", or actual or imputed "political opinion". It is submitted that the questions which inevitably flow from the text of the Convention were not addressed. In particular, no regard was had to the analysis from Ibrahim at par 102 per McHugh J.

12 As has been seen from point 8 in the earlier summary of the Tribunal's findings and reasons, the Tribunal considered and decided the applicant's claim to have a well-founded fear of persecution for a Convention reason if he was to return to Burundi because of the fact that he is a Hutu. I agree with the submissions for the respondent that this finding relevantly dealt with claims based not only upon reasons of ethnicity, but necessarily, also membership of a particular social group (the Hutus) and any imputed political opinion which may arise from being a Hutu. In those circumstances it was not necessary for the Tribunal to make specific references to "membership of a particular social group" or "imputed political opinion". The Tribunal's reasons dealt effectively with each of the three possible bases of the applicant's claim: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 at 24 per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed at 3).

Ground two: failure to make a finding on the circumstances of the applicant's second departure from Burundi

13 This ground is brought in relation to the matter referred to in point 11 of the earlier summary of the findings and reasoning of the Tribunal. It alleges that the Tribunal failed to make a finding as to the circumstances of the applicant's departure from Burundi on the second occasion in 1996. Therefore, it is said it failed correctly to apply the law to the facts contrary to s 476(1)(e) of the Act.

14 It is common ground that the reference in the above point 11 of the Tribunal's reasons is a reference to the circumstances of the applicant's 1992 departure from Burundi. What the Tribunal did say on the 1996 departure is set out in point 6 of the summary of those reasons.

15 For the respondent it is submitted that the Tribunal's reference in point 6 to "the ongoing skirmishing" is a reference to the claims by the applicant in his statutory declaration where he said that he could not stay in Burundi and there was a lot of fighting going on there and clashes between Tutsis and Hutus. The respondent's case is that it is open to implication that the Tribunal accepted this was the reason why the applicant left Burundi for a second time in 1996.

16 There are two other references in the reasons themselves which arguably support the submission of the respondent. The first occurs in the record of the applicant's further submission to the Tribunal to correct errors revealed by the written primary submission. However, I regard that reference as equivocal and possibly relating to the 1992 departure. The second reference occurred in the recounting of the circumstances of his return to Burundi in 1996 and the conditions he encountered. It is stated that as a result of the evidence of recent and violent conflict including loss of family members, "the applicant felt he had nothing left in Burundi". Nevertheless, the submission is correctly made for the applicant that in the absence of any explicit finding by the Tribunal in relation to 1996 no inference is possible.

17 Even if the ground is resolved in favour of the applicant it can, however, not assist him. It is accepted in the case for him that no remission of his application to the Tribunal would be warranted unless he succeeded on the first ground. This is because the Tribunal resolved the claim made by the applicant and concluded that the circumstances of the well-founded fear claimed by him gave rise only to a remote chance that he would be subject to harm from them on his return to Burundi in the reasonably foreseeable future. It was not, therefore, relevant for the Tribunal to make any specific finding as to the circumstances of the applicant's second departure from Burundi in 1996. It is on this second and decisive ground that the second ground can be firmly seen to have failed.

Ground three: error of law in conclusion on real chance

18 This ground is directed to the matter set out in point 12 of the Tribunal's findings and reasoning above. It is said that the Tribunal reached that conclusion by ignoring relevant material in a way affecting the exercise of its power so that it erred in law contrary to s 476(1)(e). Alternatively, the Tribunal in reaching the conclusion, purported to make a decision it did not have jurisdiction to make contrary to s 476(1)(b). Further and alternatively, it is said the Tribunal decision in this respect was not authorised by the Act, contrary to s 476(1)(c).

19 This ground is particularised in the following way. It is said the Tribunal had before it three sources of detailed material concerning country information and the general security situation in Burundi. These were a DFAT update of January 2001; an Amnesty International report of March 2001 and a US Department of State report of February 2001. It is submitted the Tribunal, nevertheless, quoted selectively from the DFAT material failing to refer to some aspects and selectively quoted from the Amnesty International material while not referring to the US Department of State material at all. It is submitted this affected the key conclusion in point 12 in relation to whether the chance of persecution would be remote or not.

20 Support for the ground is sought in affidavit material admitted into evidence. In particular, the full text of the Amnesty International report is said to show the depth and importance of independent material and reference was made to aspects of that report. It is said the error of the Tribunal in the particularised ways went beyond simply misunderstanding of the probative effect of the material, rather it is a case where the decision-maker is to be seen to have overlooked or ignored the statements concerning the nature and extent of ethnically motivated violence in Burundi (particularly, and relevantly, Bujumbura, despite the existence of the Peace Agreement). It is also said that, in relation to the Amnesty International material quoted in point 10 of the Tribunal's findings and reasoning set out above, it constitutes a selection of positive evidence and does not show a considered or balanced consideration of the Amnesty International report as a whole.

21 I agree with the submission for the respondent that this ground of review and the alleged failure by the Tribunal to have properly considered the relevant material, is in reality, an attack on the merits of the decision. It is claimed the Tribunal did not accept the material put forward by the applicant's advisor as supporting a conclusion that the applicant had a well-founded fear of persecution for a Convention reason. This invites the Court to find from an examination of the material as a whole that the Tribunal should have reached a different decision on the merits. It does not establish the Tribunal ignored relevant material within the meaning of the High Court's decision in Yusuf. Nor does it support a finding of an absence of jurisdiction or lack of authority in the Tribunal. In my view this ground is not made out.

Conclusion

22 For the above reasons I consider the application should be dismissed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson .

Associate:

Dated: 5 February 2002

Pro Bono Counsel for the Applicant:	Mr RL Hooker
Counsel for the Respondent:	Mr P Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 December 2001
Date of Judgment:	5 February 2002