Domingo v Minister for Immigration & Multicultural Affairs [2001] FCA 101 (20 February 2001)

Last Updated: 21 February 2001

FEDERAL COURT OF AUSTRALIA

Domingo v Minister for Immigration & Multicultural Affairs [2001] FCA 101

MIGRATION - application for protection visa - whether Tribunal committed an error of law by misunderstanding requirements of the law as to "a well-founded fear of persecution".

Migration Act 1958 (Cth) ss 36(2), 65, 430, 476, 476(1)(e)

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 referred to

Minister for Immigration and Multicultural Affairs v Amani [1999] FCA 1040 referred to

JOHN DOMINEK DOMINGO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 77 OF 2000

LEE J

20 FEBRUARY 2001

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 77 OF 2000

BETWEEN:	JOHN DOMINEK DOMINGO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LEE J
DATE OF ORDER:	20 FEBRUARY 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

The application 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 77 OF 2000

BETWEEN:	JOHN DOMINEK DOMINGO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LEE J
DATE:	20 FEBRUARY 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") which "affirmed" the decision of a delegate of the respondent ("the Minister") that the applicant not be granted a "protection visa".

2 Section 36(2) of the Act provides that:

"A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967".

3 Section 65 of the Act states that the Minister, if satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, is to grant the visa and if the Minister is not so satisfied, the grant of the visa is to be refused.

4 The applicant is twenty-seven years of age and a national of Angola. He arrived in Australia on 4 September 1999 as a stowaway. Since his arrival he has been held in a detention centre. He applied for the grant of a protection visa on 14 September 1999. On 8 February 2000 a delegate of the Minister determined that the visa not be granted.

5 The Tribunal's decision was made on 15 May 2000. The Tribunal provided reasons for its decision, as required by s 430 of the Act.

6 In those reasons the case put to the Tribunal by the applicant for the grant of a visa was recorded as follows:

"The Applicant claims fear of persecution in Angola for Convention-related reasons of `political opinion'.

The Applicant claims to have left Angola with his mother at or around the age of seven. He remembers little of his childhood in that country. He claims his father was a supporter of the national Union for the Total Independence of Angola (UNITA). He claims his father's death immediately precipitated his and his mother's flight from Angola. He claims that he learned these facts from his mother before separation from her in Mozambique. The Applicant claims he was raised by a relative in Mozambique. He claims that he cannot go back to Angola because the Popular Movement for the Liberation of Angola (MPLA) government there is opposed to UNITA, will impute his father's politics to him and therefore kill him too.

The Applicant speaks and understands basic Portuguese, which is the national language in Angola. He placed considerable emphasis in his claims on the fact that he would be homeless and jobless in Angola and has no known living relatives there. He said that if he could not work he would be forced to steal and therefore, presumably, face punishment for that. He also claimed he was afraid of being killed in the midst of widespread conflict between the government and UNITA.

...

The Applicant lived in Mozambique from 1980 to 1995. ...He does not claim that he was ever forced to leave Mozambique, where Swahili is spoken and where Portuguese is also the national language. The Applicant's last job in Mozambique was as a deckhand on a fishing boat. He then went to South Africa and lived as a vagrant."

and:

"The Applicant said he could recall his father, a stevedore, conducting meetings with other men in the family home. The Tribunal gathers from this work description that the Applicant's father was not a full-time politician. He claims to have been told that his father was killed by MPLA agents away from the house. He claims no history of political involvement for his own part. He could not say how his link to his father would be discovered or why it would necessarily lead to his own murder. He just said that he had heard that people were still being killed in the district where he had previously lived. He drew the Tribunal's attention to a 1994 BBC broadcast he had heard in which there had been a report of UNITA members and their relatives being killed."

7 The Tribunal accepted the following extracts from the US Department of State's Country Reports on Human Rights Practices for 1999 (Washington DC: US Department of State, February 2000) as an accurate statement of affairs in Angola at the time of review:

"The Government's human rights record continued to be poor, and it continued to commit numerous serious abuses. Citizens have no effective means to change their government. The second round of the 1992 presidential elections were canceled [sic] in a government agreement with the breakaway faction of UNITA. New elections were postponed indefinitely until the U.N. determines proper conditions exist to hold them. Members of the security forces committed numerous extrajudicial killings, were responsible for disappearances, and tortured, beat, raped and otherwise abused persons. The Government was unable to pay the salaries of the majority of its security service personnel. The poor discipline and poor working conditions of the police force made it the worst offender; military units generally have better discipline and a more effective chain of command. Other than those personnel assigned to elite units, the Government took no effective action to prevent security personnel from supplementing their incomes through the extortion of the civilian population. Prison conditions were life threatening. The Government routinely used arbitrary arrest and detention, and lengthy pretrial detention is a problem. The Government was unable or unwilling to punish those in the security services who were responsible for abuses. The judiciary is subject to executive influence, only functions in parts of the country, and does not ensure due process. The Government infringed on citizen's privacy rights and forcibly recruited military-age males. The Government at times restricted freedom of speech and of the press, and intimidated journalists into practicing self-censorship. The Government restricted freedom of assembly, association, and movement. The Government continued to limit independent investigations of human rights abuses, although it allowed international human rights organizations, including Human Rights Watch and Amnesty International, to conduct research in the country. Discrimination and violence against women were common; adult and child prostitution is a problem; and children and the disabled continued to suffer as a result of the ongoing conflict and poor economic conditions. The Government continues to dominate the labor movement and restricts worker rights, although there were improvements in the independent labor sector. Forced labor and child labor are problems.

UNITA also was responsible for numerous, serious abuses. UNITA forces were responsible for killings, disappearances, torture, rape and other abuse. UNITA military units reportedly pillaged rural areas; depopulated large parts of the country, killed traditional leaders, and eliminated all opposition, real or potential. UNITA tightly restricted freedom of speech, the press, assembly, association, and movement. UNITA refused all attempts to conduct investigations in areas under its control. UNITA continued forced military recruitment, including of underage males, and used forced labor for a large part of its local-level logistical support. The sexual abuse of women conscripted to work as porters was reportedly common in UNITA areas.

...

The Constitution provides for freedom of movement and residence, and freedom of exit from and entry into the country; however, the Government does not respect these rights in practice. A network of government checkpoints throughout the country interfered with the right to travel. Such checkpoints serve as a source of income for many of the country's security service personnel. Extortion at checkpoints is routine in the center of Luanda and pervasive on major commercial routes. The Government routinely cuts off access to areas of the country that are deemed insecure or beyond the administrative authority of the State. Transportation links between government- and UNITA-held territory were broken as a result of conflict. The Government did not place restrictions on emigration and repatriation. In September the police detained and harassed several dozen foreign businessmen in an effort to control currency speculation; several of the businessmen ultimately were deported.

As a result of the conflict approximately 75,000 citizens fled into neighboring countries during the year, including to the Democratic Republic of Congo, Namibia, and Zambia.

Human rights and relief workers who interviewed Angolan refugees and displaced persons reported that UNITA limits the free movement of the civilian population both by preventing persons from fleeing some areas under their control, and by displacing them to areas of government control. The patterns that emerged from the discussions suggested that UNITA uses military patrols, checkpoints, and landmines to keep persons from leaving their home areas. Refugees who fled the country and who were not part of the Ovimbundu majority within UNITA said that arbitrary public punishment, including death by firing squad or by immolation, were used to deter others from leaving. There is also some evidence to suggest a pattern of UNITA displacing persons and forcing them to flee to government-controlled cities in order to increase pressure on the Government to deal with increased humanitarian burdens.

Mines laid by UNITA forces on roads are a major impediment to the freedom of internal circulation. According to U.N. and NGO reports, UNITA uses antipersonnel and antivehicle mines to prevent government forces from entering areas under its control and to restrict movement of civilians, either by keeping them within areas it controls, or by keeping them from leaving government towns. UNITA also used landmines to make areas unsuitable for cultivation and to deny hostile populations access to water supplies and other necessities. Government use of landmines generally was confined to defensive positions and around towns under threat of UNITA attack. Estimates of the total number of landmines deployed throughout the country range into the millions. Fear of injury and death from landmines effectively imprisoned and impoverished entire communities. There were an unknown number of fatalities due to landmine explosions during the year, and there are over 80,000 survivors of landmine explosions."

8 The Tribunal accepted that the applicant's father had been "a UNITA supporter and occasional activist" and had been killed by "MPLA agents". It also accepted that the applicant's mother had fled Angola, with the applicant, in fear for their lives.

9 The central determination by the Tribunal leading to its decision that a protection visa not be granted to the applicant was as follows:

"...the applicant did not satisfy the Tribunal that he would face persecution in Angola for reasons of an imputed attachment to his late father's political beliefs. The Tribunal could find no evidence of government forces in the present day operating in such a way, although, as shown, it could find some evidence, in certain localities, of other harsh and repressive practices aimed at releasing populations from UNITA influence, and plenty of evidence of UNITA guerillas, in similar and other localities, resorting to a wide range of brutal tactics to instil fear into civilians generally."

10 The Tribunal's decision was challenged on two grounds in the argument submitted by counsel who had agreed to act for the applicant under the pro bono scheme administered by the Court under O 80 of the Federal Court Rules.

11 First, it was submitted that the Tribunal erred by requiring the applicant to satisfy it that he "would" face persecution if returned to Angola by reason of the political opinion to be imputed to him as the son of a former UNITA supporter. It was said that the relevant law required the Tribunal to determine whether it was satisfied that there was a "real chance" that the applicant may suffer such persecution. It was submitted that such an error of law by the Tribunal provided ground for review of the decision pursuant to s 476(1)(e) of the Act.

12 At the commencement of its reasons, the Tribunal set out correctly the relevant law on the meaning of well-founded fear of persecution for the purpose of the Convention and the Act. In that regard the Tribunal said as follows:

"A `real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent."

Therefore, unless subsequent reasoning of the Tribunal that explained how the Tribunal applied the law to the facts before it revealed that the Tribunal departed from or misapplied the law, due application of the law should be assumed.

13 Notwithstanding that the material before the Tribunal recorded that Government forces regularly committed substantial abuses of human rights throughout Angola, including kidnappings, extra-judicial executions, torture and rape, the Tribunal found that that material did not show that Angolan authorities resisted the propagation of UNITA influence in Angola by persecuting relatives of known UNITA supporters or activists, per se. The Tribunal relied upon that finding to conclude that the applicant now faced no risk that Angolan authorities would mete out persecutory treatment to him as the son of a former UNITA supporter eliminated by government forces in 1980. It was not submitted that the finding of fact made by the Tribunal was unsupportable or not available on the material before it. Therefore, the reasons provided by the Tribunal for the decision it made, namely, that it was not satisfied that the applicant had a well-founded fear of persecution, do not display any misunderstanding of the requirements of the law, and, therefore, no ground for review is established under s 476(1)(e) of the Act.

14 The second ground for review raised by the applicant was that the Tribunal erred in law in deciding that if the applicant did have a well-founded fear of persecution he "would have effective protection in Mozambique" and, therefore, would not be a "refugee". That was a supplementary submission that would become relevant only if the applicant succeeded on the first ground. As I have set out above, the applicant failed on that ground and, therefore, it is unnecessary to deal with the second submission and the issues it raises. (See: Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543; Minister for Immigration and Multicultural Affairs v Amani [1999] FCA 1040.)

15 It was not submitted that the applicant faced persecution for a Convention reason as an Angolan citizen affected by the manner in which the conflict between Government and UNITA was conducted by the respective forces, or by the conduct of Government or UNITA forces towards Angolan citizens, and that the Tribunal had failed to conduct a review proceeding which determined that issue.

16 The application must be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:

Dated:

Counsel for the Applicant:	P A Tottle
Solicitor for the Applicant:	Tottle Christensen
Counsel for the Respondent:	M T Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 November 2000
Date of Judgment:	20 February 2001