Worku v Minister for Immigration & Multicultural Affairs [2000] FCA 27

FEDERAL COURT OF AUSTRALIA

Worku v Minister for Immigration & Multicultural Affairs [2000] FCA 27

MIGRATION – refusal of protection visa – challenge to finding by Refugee Review Tribunal on ground it failed to comply with s 430 of the Migration Act 1958 (Cth) – no error of law or other ground of review made out. Migration Act, 1958, ss 430, 476 (1) (e) Menen Worku Bobassa v Minister for Immigration & Multicultural Affairs N 230 of 1999 Whitlam J 24 January 2000 Sydney IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 230 OF 1999

BETWEEN: MENEN WORKU BOBASSA

APPLICANT

AND: MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: WHITLAM J

DATE OF ORDER: 24 JANUARY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's 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 230 OF 1999

BETWEEN: MENEN WORKU BOBASSA

APPLICANT

AND: MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: WHITLAM J

DATE: 24 JANUARY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 ("the Act") to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 17 February 1999. 2 The applicant is an Ethiopian national. She was born in Addis Ababa on 23 July 1972. Her father is an Oromo and her mother is an Amhara. In 1992 the applicant went to India in order to study at a college in New Delhi. She returned to Ethiopia at the end of each school year in 1993, 1994, and 1995. In 1996 the applicant renewed her passport at the Ethiopian Embassy in New Delhi on 30 May, was granted a visitor's visa by the Australian Embassy in New Delhi on 8 July, arrived in Australia on 25 August, and applied for a protection visa on 15 October. Her visa application was refused by a delegate of the respondent ("the Minister") on 21 October 1997. The Tribunal affirmed the delegate's decision. 3 The applicant claimed to fear persecution in Ethiopia on account of her Oromo ethnicity and her active support in India of the Oromo Liberation Front ("OLF"). She also claimed that her father had been arrested and detained in Ethiopia in early 1996 because of his support for the OLF and that agents of the Ethiopian government had tried to kidnap her in India in March 1996. 4 The Tribunal prepared a statement under s 430(1) of the Act. It commenced by summarizing (at pp 2-7) the claims made and evidence submitted by the applicant in her visa application, a departmental interview, a hearing by the Tribunal and subsequent correspondence with the Tribunal. The Tribunal then set out (at pp 8-9), with citation to authorities, its understanding of the Convention definition of refugee and of the correct approach to fact-finding. Next, it referred (at pp 9-14) to further evidence and material before it under the sub-headings "Background on Ethiopia" and "Oromo ethnicity and the OLF". The Tribunal then set out (at pp 14-17) what it described as an "assessment" of the applicant's claims. It stated: "I did not find Ms Worku Bobassa to be a credible witness. I do not believe that she was a member of the OLF in India, nor that she was pursued and harassed by Ethiopian government agents in India in 1996 as a result of her activities on behalf of the OLF. In the first place, I have seen nothing to suggest that the Ethiopian government pursues or harasses ordinary members or supporters of the OLF who are living outside Ethiopia in the manner claimed by Ms Worku Bobassa and I find the suggestion that they would expend any of their limited resources pursuing a young student who had done nothing more than distribute a few leaflets to three or four fellow students far-fetched and implausible. Secondly, Ms Worku Bobassa's evidence regarding the OLF and her own activities while a member was unconvincing. For example, she initially described herself as an "OLF activist and student representative" working under the instructions of members of the OLF executive in India. However, when pressed for details by the Department officer and at the Tribunal hearing, said that she had only distributed leaflets to a small number of students and was unable to provide much information about how the OLF in India [sic]. Furthermore, beyond making general statements, she knew very little about the OLF's aims or policies and she was unable to name even one of its leaders. While I accept that many supporters of the group may not be very well-informed about its structure or policies, and acknowledge that Ms Worku Bobassa was residing outside Ethiopia after 1992, I do not believe that a relatively well-educated person who was engaged in trying to persuade others to join the group would know so little it [sic] and would be unable to name even one leading figure. Furthermore, Ms Worku Bobassa told the Department that she believed that the authorities had begun arresting OLF leaders in 1993/94 and only later moved on to detaining lower level members. As noted in the overview set out above, the greatest number of OLF members and supporters were detained in 1992 when the group left the TGE [Transitional Government of Ethiopia] and returned to armed struggle. This was prior to Ms Worku Bobassa's departure from Ethiopia. The number of detentions lessened after 1993. While it is true that there was an upsurge in detentions in 1996, there is no suggestion in the sources which I consulted that this occurred because the authorities had moved on from targeting leaders of the group to rounding up ordinary members. It appears to have occurred because of an upsurge in OLF activity and those detained in Addis Ababa appear to have been prominent members of the Oromo community. I do not believe that any Oromo who was concerned about situation of his or her people who [sic] have been unaware of the developments which took place in 1992 … I find that Ms Worku Bobassa fabricated the claim that she was an OLF member and was harassed by the Ethiopian authorities in India to support her application for a protection visa. I do not believe that Ms Worku Bobassa's father was arrested in 1996 and is still detained in Ethiopia today because of his membership of or support for the OLF. As noted above, I believe that she has fabricated claims in support of her protection visa application and I believe that this claim has also been fabricated. The fact that an applicant has fabricated or exaggerated some claims does not necessarily mean that all of their evidence should be dismissed as lacking in credibility. However, in this case Ms Worku Bobassa has fabricated claims which are central to her case. Furthermore, she persisted with these false claims after problems with her evidence were pointed out at the Department interview and the Tribunal hearing. In these circumstances, she cannot be regarded as a forthright or credible witness and I am not prepared to accept her claims regarding her father's arrest and continued detention without a convincing account of his circumstances or reliable corroboration. Ms Worku Bobassa has proved neither. … After considering all of the evidence, I am not satisfied that Ms Worku Bobassa has ever been involved in the OLF, nor that she or her father have ever experienced problems with the Ethiopian authorities because of their association with the group. I am therefore not satisfied that she has a well-founded fear of persecution on return to Ethiopia because of her involvement in or association with the group. I accept that Ms Worku Bobassa's father is an Oromo and that she is therefore also an Oromo. However, apart from the problems relating to her own and her father's claimed association with the OLF, which I do not accept as true, she has never experienced any problems in Ethiopia because of her ethnicity. While there is no doubt that many Oromo people living in the Oromo regions of Ethiopia have suffered as a result of the conflict in their region and the activities of local and possibly federal government troops and officials, the evidence before me does not suggest that Oromo people in Addis Ababa are generally at risk of serious harm amounting to persecution merely because of their ethnicity (see US Department of State Profile May 1997) and I am not satisfied that Ms Worku Bobassa has a well-founded fear of persecution because of her ethnicity." 5 In the second last paragraph of the above excerpt, the Tribunal was plainly addressing the "political opinion" reason in the Convention definition. Accordingly, the Tribunal concluded (at p 17) that it was not satisfied that the applicant had a well-founded fear of persecution in Ethiopia for any of the reasons contained in the Convention. 6 Counsel for the applicant pressed only some of the grounds in his client's amended application for an order of review. The first ground pressed invoked ss 430 and s 476 (1)(e) of the Act. In his submissions counsel regurgitated the following particulars in the amended application: "A. When making its observations and findings as to "Oromo ethnicity and the OLF" based on the material before it the Tribunal concluded that in Ethiopia person who were Oromon [sic] were detained if it was believed or suspected they were OLF members or sympathisers or if they were suspected of OLF activities. One military campaign was described as being accompanied by harassment, shootings and arrests of those believed to be OLF members and sympathisers. Detentions have continuously [sic] with upsurges from time to time including as recently as 1999. Abuses of human rights are referred to. In light of its findings on the material it considered then apart from the credit of the Applicant once it had found the Applicant was an Oromon [sic] the Tribunal was required in accordance with s 430 of the Act to make findings and set out its findings as to one or more of the following: (i) whether there was a real possibility the reality of which increased from time to time that persons who were Oromon living in Ethiopia might be detained or harassed or otherwise harmed or persecuted merely because of a suspicion or belief that they were sympathised [sic] or associated with the OLF or were involved in OLF activities whether or not the basis of such suspicion or belief were [sic] true and/or (ii) whether or not there was a real risk that members of the Oromo people might be detained or harassed or otherwise harmed or persecuted on the basis of such a belief or suspicion that was not well founded and /or (iii) whether a person such as the Applicant who was distributing leaflets to students of the kind contemplated ran a particular risk of being suspected as being in the OLF or an OLF supported [sic] even though the Tribunal found that she was not involved in the OLF (iv) whether there was a real possibility that the detention of persons who were Oromon might occur in circumstances which involved abuses of human rights and/or (v) whether an affirmative finding as to any one or more of the above does as a matter of fact and/or law amount to persecution based on ethniticity [sic]. B. The Tribunal's finding that the evidence before it "… does not suggest Oromo people in Addis Ababa are generally at risk of serious harm amounting to persecution merely because of ethnicity" - involved an incorrect interpretation of the applicable law in that it was too confined and /or - involved an incorrect application of the law to the facts in that it was not consistent with the findings referred to in A. above. C. The failure of the Tribunal to be satisfied that the Applicant had a well founded fear of persecution because of her ethnicity was In light of its observations and findings as to "Oromo ethnicity and the OLF" the Tribunal." 7 The allegations in item A of the above particulars commence, however, by misapprehending the facts found by the Tribunal. I have set out in full the Tribunal's relevant findings of fact. What are initially described in those particulars as the Tribunal's "observations and findings" are no more than selective extracts from its earlier description of some of the evidence and material before it. The Tribunal's findings expressed in the last paragraph from the passage I have set out are entirely adequate to deal with the Convention reason of race, that is, as the particulars put it, "once it had found that the Applicant was an Oromon [sic]". The matters listed in sub-items (i)-(iii) of the particulars were, of course, already closed off by the Tribunal's findings as the applicant's credit on her claims concerning actual and imputed political opinion. The other particulars in items B and C at once contest the facts found by the Tribunal and misstate those facts. Such a challenge, whilst anyway insupportable, is impermissible. 8 Counsel for the applicant did not cite authority to link a failure to meet the requirements of s 430 to an error of law under s 476(1)(e). Nonetheless, in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 Wilcox J held (at 34) that the Tribunal's failure to make findings on facts alleged in material before it may constitute such an error. In the present case, however, counsel for the applicant has failed to indicate any evidence or material before the Tribunal, which is contrary to its findings on material questions of fact and to which the Tribunal has not referred. Further, there is, in my opinion, no obligation upon the Tribunal to give reasons for rejecting evidence or material inconsistent with the findings of fact it has made: Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 and Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740. It follows that the ground of review under s 476(1)(e) is not made out. 9 The other ground relied upon by counsel for the applicant was that specified in s 476 (1)(g). The particulars supplied in support of this ground were as follows: "A. There was no evidence which would justify the Tribunal's findings that the evidence before it "… does not suggest that Oromo people in Addis Ababa are generally at risk of serious harm amounting to persecution merely because of ethnicity" B.1 There was no evidence to suggest that the Ethiopian Government did not pursue or harrass ordinary members or supporters of the OLF living outside Ethiopia in the manner claimed by the Applicant. B.2 There was no evidence to suggest what resources were available in relation to the treatment of persons distributing material such azs [sic] that distributed by the Applicant. B.3 In any case the facts found by the Tribunal as to what the Applicant did by way of distributing pamphlets is not consistent with the applicants statements/evidence in that regard." 10 However, as counsel for the Minister correctly submits, the ground in s 476(1)(g) is limited by s 476(4) of the Act. Neither par (a) or (b) of that subsection has any application in the present case, and counsel for the applicant did not submit otherwise. The particulars in item B.3 are incomprehensible. The Tribunal did not, in fact, find the applicant distributed any leaflets. On the contrary, it found that the applicant fabricated the claim that she was an OLF member. This ground of review is also not made out. 11 The application will be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.