Mchinangome v Minister for Immigration & Multicultural Affairs [2002] FCAFC 71; [2002] FCA 302 (19 February 2002)

Last Updated: 9 May 2002

Mchinangome v Minister for Immigration & Multicultural Affairs [2002] FCAFC 71

Mchinangome v Minister for Immigration & Multicultural Affairs [2002] FCA 302

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)

The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Mchinangome v Minister for Immigration & Multicultural Affairs [2002] FCA 302

Federal Court of Australia Act 1976 (Cth) s 24

Migration Act 1958 (Cth) s 476, 476(1)

Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 referred to

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

Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 referred to

TOFFIKI MCHINANGOME v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W377 of 2001

LEE, COOPER and RD NICHOLSON JJ

19 FEBRUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 377 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	TOFFIKI MCHINANGOME APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	LEE, COOPER and RD NICHOLSON JJ
DATE OF ORDER:	19 FEBRUARY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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	W 377 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	TOFFIKI MCHINANGOME APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	LEE, COOPER and RD NICHOLSON JJ
DATE:	19 FEBRUARY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a decision of Tamberlin J given on 6 August 2001. In his judgment his Honour dismissed an application by the appellant for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 21 April 2001. The decision was to the effect that the Tribunal affirmed the decision of a delegate of the respondent not to grant to the appellant a protection visa.

2 The appeal is brought in reliance upon s 24 of the Federal Court of Australia 1976 (Cth). The application to the Tribunal was brought in reliance on s 476 of the Migration Act 1958 (Cth) ("the Act").

3 The appellant claimed to be a citizen of Rwanda who had been living in Kenya for three years prior to his claim for a protection visa. He arrived in Australia on 13 May 2000. His application for the visa was lodged on 6 July 2000. The delegate's refusal occurred on 8 February 2001.

4 In its findings and reasons the Tribunal said it had reviewed the evidence relating to the appellant's claim that he was born and raised in Rwanda. It found the evidence did not support that claim. In reaching that view it relied on the appellant's absence of accurate geographical knowledge. It also relied on linguistic evidence to the effect that the appellant's speech was "most certainly the Kenyan coast variety of Swahili" and most likely originated from Kenya. Further the linguistic evidence was that there were no dialectic features in his speech specifically belonging to the Swahili language used in Rwanda. The Tribunal was satisfied that the appellant's failure to describe places or events in Rwanda was not simply an inability to communicate. It relied also on his complete lack of knowledge about the civil war in 1994. It concluded that "indeed, on the evidence before me, there is nothing to suggest that the applicant was in Rwanda at any time. I'm not satisfied that he is a citizen of Rwanda".

5 The Tribunal found there was a high probability that the appellant was a citizen of Kenya but did not make a conclusive finding to that effect. It pointed out the appellant had consistently stated that he is a citizen of Rwanda and rejected any suggestions that he was a citizen of Kenya. The Tribunal found that it was not satisfied that it was likely he was a citizen of Rwanda.

6 The Tribunal then considered whether, if the appellant returned to Kenya, he would have any well-founded fear of persecution for a reason recognised under the Refugees Convention. It found such chance was remote.

7 In his reasons, Tamberlin J considered the question whether the Tribunal had erred in law or principle in failing to make findings with respect to whether the appellant would be a refugee if he had established that he was a citizen of Rwanda, contrary to the finding made by the decision-maker. That is, he considered the application of the "what if I am wrong" test. He pointed out that the test is not to be applied where the Tribunal had "no real doubt": Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220.

8 Tamberlin J then turned to consider whether in the present case there was any significant doubt or lack of clarity in relation to the Tribunal's finding that the appellant was not a citizen of Rwanda. He concluded there was no indication of any real or significant doubt. In doing so he canvassed the terms of the reasons considered as a whole looking beyond the mere assertion made by the Tribunal's finding to that effect. Having found there was no real doubt he therefore, necessarily, concluded that the decision-maker had not fallen into error with respect to the application of the "what if I am wrong" test.

9 The grounds of appeal assert that the primary judge failed to consider the Act and there was no evidence to support this decision. These are not grounds of appeal. It is apparent his Honour did consider the Act and there was material to support his decision. We have treated the grounds as a broad assertion of the contention that the primary judge should have found error of law, of the type permitted by s 476(1) of the Act, in the reasons of the Tribunal.

10 We do not consider the primary judge was in error of law in his characterisation of the Tribunal's reasons. We agree the reasons show the Tribunal was in no real doubt. Therefore, applying the principles set out in Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ, at 575-576 the Tribunal could determine that the risk of the appellant being persecuted in Rwanda was an irrelevant issue, the appellant having been found not to be a citizen of Rwanda and, therefore, not at risk of being refouled to that country.

11 We have also considered whether the Tribunal was in error of law in identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or making an erroneous finding or reaching a mistaken conclusion in the sense recognised in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 at [82]. No such error is apparent.

12 For these reasons no ground of reviewable error is apparent in respect of the Tribunal's reasons. Accordingly the appeal must be dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee, Cooper and RD Nicholson JJ.

Associate:

Dated: 19 March 2002

	The Appellant appeared in person
Counsel for the Respondent:	A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 February 2002
Date of Judgment:	19 February 2002