X v Minister for Immigration & Multicultural Affairs [1999] FCA 1469 (18 October 1999)

Last Updated: 2 November 1999

FEDERAL COURT OF AUSTRALIA

X v Minister for Immigration & Multicultural Affairs [1999] FCA 1469

X v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 575 of 1999

HILL J

18 OCTOBER 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 575 OF 1999

BETWEEN:	X Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	HILL J
DATE OF ORDER:	18 OCTOBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. From henceforth the applicant's name not be published or communicated other than to those employed by the Minister for official purposes.

3. No order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 575 OF 1999

BETWEEN:	X Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	HILL J
DATE:	18 OCTOBER 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1 The applicant, Mr X, is a citizen of Ethiopia. He arrived in Australia on 4 February 1995 and studied at the University of Wollongong from which he obtained either or both of an Advanced Diploma in Teaching and a Bachelor of Computer Science degree. On 15 December 1997 he applied for a protection visa. That application was rejected and Mr X sought review of that decision from the Refugee Review Tribunal ("the Tribunal"). He was unsuccessful before the Tribunal and applied to this Court for judicial review.

2 In this Court Mr X was unrepresented. He had sought legal aid but his application was apparently unsuccessful. Not surprisingly Mr X has difficulty in understanding the distinction between errors of law on the one hand and errors of the fact on the other. Not surprisingly for someone who is not a lawyer he is unaware of the very limited jurisdiction which is conferred upon this Court to review decisions of the Tribunal. Not surprisingly he does not understand why those restrictions exist or what they mean.

3 The Tribunal, notwithstanding what seems on the face of it very minor matters of conflict, accepted Mr X as a creditable witness. In essence, Mr X claimed before the Tribunal that he had a well-founded fear of being persecuted either for his political opinion or by reason of his race. Mr X belongs to the ethnic group Amhara. To make matters even more difficult for Mr X, the appeal papers which have been prepared do not contain a transcript of the evidence before the Tribunal so, to that extent, it is difficult to know what material was placed before the Tribunal.

4 Certainly, the Tribunal's reasons pertain to documents which Mr X had himself prepared. I do not set them out in full. He said the he had been involved in organising a youth association and successfully so. This caused his arrest and mistreatment of a kind, which clearly enough would constitute persecution. He was a member of the All Amhara People Organization ("AAPO") which was apparently founded to defend the rights of Amharas being harassed in prison, tortured or executed without legal procedure.

5 This, no doubt, also was a cause of his arrest by the security forces until he was released at the expiration of about a month of torture and being beaten. He says that he has been identified by the security force as an organiser. Since he has left Ethiopia his house has been searched and his papers stolen. He believes that he will be arrested if he returns and jailed, tortured and beaten. He saw the opportunity to go overseas to study as a way of escaping Ethiopia. Ultimately Mr X obtained a passport, to which I shall return in a moment, and came to Australia.

6 In its reasons for decision, the Tribunal sets out, in summary form, the material from the Department of Foreign Affairs and Trade and other sources on the situation in Ethiopia. It notes that there are four reported cases of extra-judicial executions in 1998, cases of mistreatment of people arrested, albeit no report of detainees subject to repeated interrogation, torture or solitary confinement. The Tribunal found that although Mr X was a member of AAPO, the government really was not genuinely interested in him in the sense of wanting to imprison or persecute him.

7 It found his fear of being arrested, beaten, tortured or killed at odds with "the independent evidence" which he had referred to, and concluded that the chance that he would be persecuted in the region of the foreseeable future as a result of his membership of AAPO would be remote. In reaching its conclusion the Tribunal regarded the material with Mr X had put before it to be out of date so far as the incidents with which that material was concerned had taken place in 1997 or earlier and preferred the evidence which it set out in its reasons. It, likewise, rejected Mr X's claim that he had a well-founded fear of persecution due to race.

8 According to the Tribunal the independent evidence indicated that the Amhara were not victims of racial discrimination or persecution. It found that his claim in this regard was "at odds with this independent evidence". It also found, which is strange considering that it regarded his evidence as credible, that he did not even have a serious subjective fear of persecution following being detained in 1993. The Tribunal said it was clear this was so, because otherwise he would have gone into hiding or left the country sooner. The fact that he stayed until 1995 was said to support this view.

9 So the Tribunal rested its decisions on both matters to a large extent upon the fact that Mr X had been able to obtain a visa. In his written evidence, Mr X had said that he had obtained the necessary exit visa with the support of the Vice Minister for whom he worked who was an Amhara and who had written a letter to the Immigration Officer at the Foreign Ministry. I do not know what evidence he gave orally on this matter as there is no transcript.

10 Mr X's submissions in this Court all concern matters of fact. First, Mr X said that the Tribunal had misunderstood the way he had obtained the exit visa which was not through the normal channels. Mr X says that the Tribunal's conclusion that nothing had happened to active members and supporters of AAPO in the last 12 months was wrong. He handed to me or referred to reports, including a report of the Ethiopian Human Rights Council, to demonstrate that this was so. That report is headed: "A Corpse Over Another Corpse". It traces some shameful violations of human rights. It is dated 11 June 1999. And, of course, post dates the decision of the Tribunal. He referred to other material as I have said which may or may not have been before the Tribunal but it is not clear to me. Some of it probably was not.

11 The Tribunal is the arbiter of fact, not this Court. It would seem clear enough that there was evidence to the contrary of what the Tribunal said that was before it. However the Tribunal preferred the evidence it did. Whether it did so on any rational basis, I do not know.

12 Mr X says that his membership of AAPO was not ordinary because he was, in essence, a leader of the Youth Council. He explains why he was only detained for a month and ultimately liberated as being because the authorities did not know about his AAPO membership and detailed activities.

13 Mr X says that the authorities seek him now and will arrest him if he returns not for reasons which related to his initial detention. He says that were he to return, he would not get a fair trial in Ethiopia because there is no fair judicial system. He says he is wanted not for being an Amhara as such but for being a leader of AAPO Youth Council and an active member of AAPO. His case is summarised in written submissions as follows:

"In conclusion, my exit visa did not pass through the Foreign Ministry's enquiry or formal processes. My AAPO membership and activity is not remote and my party profile is not low. I was actively involved in AAPO activities. I was holding an elected position (AAPO Youth Council). As I noted several times in my previous submission, all Amharas are not victims of persecution. But the Amharas who have actively been involved in AAPO activities and those who strongly oppose the EPRDF's ethnic policies are the main target of persecution by the EPRDF authorities."

14 Orally, Mr X asked, in essence, that I review his case on the facts. He referred to people being taken from the airport and imprisoned, beaten or worse. He says, in essence, that if he is forced back to Ethiopia he is likely to die. If I understood him correctly, he suggested that he might commit suicide rather than face returning. If the situation in Ethiopia has, in truth, worsened or, indeed, if the real situation in Ethiopia when viewed today by the Ministry of Foreign Affairs is such that Mr X's position is truly such that his life is in danger, it would I think, be desirable for the matter to be reviewed.

15 No doubt Mr X can activate that process to the extent that it is available. Unfortunately his expectation that this Court is able to assist him is misplaced. He has not been able to advance a ground of the kind enumerated in s 476 of the Migration Act with the result that his application must be dismissed. I would, however, recommend that the relevant delegate of the Minister consider the matter in the light of such evidence that Mr X is able to give them as to the current situation in Ethiopia. I would request that if Mr X is returned to Ethiopia some attempt be made to ascertain, at least, what happens to him so that those who make decisions of fact can be truly aware of the consequences of their decisions.

16 I would order that from henceforth Mr X's name not be published or communicated other than, of course, to those employed by the Minister for official purposes. When these reasons are published, I will ensure that the name is deleted.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated: 18 October 1999

The applicant appeared in person
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 October 1999
Date of Judgment:	18 October 1999