Mpelo v Minister for Immigration & Multicultural Affairs [2000] FCA 608

FEDERAL COURT OF AUSTRALIA

Mpelo v Minister for Immigration & Multicultural Affairs [2000] FCA 608 SIMON LEGO MPELO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 235 OF 2000 LINDGREN J 8 MAY 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 235 OF 2000

BETWEEN: SIMON LEGO MPELO

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 8 MAY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 3. Orders 1 and 2 not be entered prior to 30 May 2000. 4. The applicant have liberty to re-list the matter on 24 hours' notice prior to 30 May 2000 for the making of any further submissions on his behalf. 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 235 OF 2000

BETWEEN: SIMON LEGO MPELO

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 8 MAY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT (ex tempore)

Introduction

1 The applicant ("Mr Mpelo") applies under s 476(1) of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("RRT") affirming a decision of a delegate ("the Delegate") of the respondent ("the Minister") not to grant him a protection visa. 2 Section 29 of the Act provides that subject to the Act the Minister may grant a non-citizen permission, to be known as a visa, to do one or both of the following: (a) travel to and enter Australia; (b) remain in Australia. 3 Section 496 of the Act provides that the Minister may, by writing signed by him or her, delegate to a person any of the Minister's powers under the Act. It is not in dispute that the Minister delegated all relevant powers to the Delegate. Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied. 4 Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as "amended" by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention"). 5 Article 1A(2) of the Convention provides that a refugee is any person who: "owing to 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, is unable or, owing to such fear, is unwilling to return to it." 6 Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in clause 866.221 of Schedule 2 to the Migration Regulations 1994, which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. 7 The RRT's decision was a "judicially reviewable decision" (s 475(1)(b) of the Act); Mr Mpelo was entitled to apply to this court for a review of it on certain grounds (s 476); and the Court has jurisdiction provided by Part VIII of the Act, but no other jurisdiction, with respect to it (ss 485, 486). 8 Mr Mpelo's case is that he is outside the country of his nationality, Democratic Republic of Congo, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of, perhaps, membership of a particular social group or political opinion (see later). Procedural background 9 On 25 October 1999 Mr Mpelo arrived at Port Botany as a stowaway and without documentation. He was taken into immigration detention at Villawood Immigration Detention Centre. On 8 November 1999, he applied, through Macpherson & Kelley, Migration Agents of Dandenong, Victoria, for a protection visa (visa subclass 866). (The form of application bears the date 1 November 1999.) The Delegate refused the application on 29 November 1999. On 1 December 1999 Mr Mpelo applied to the RRT for review of the Delegate's decision. The RRT conducted a hearing on 11 February 2000. On 14 March 2000 it affirmed the Delegate's decision. 10 Mr Mpelo filed the present application in this Court on 20 March 2000. The proceeding was before this Court for directions on 31 March 2000. Mr Mpelo was unrepresented. I made directions including a direction fixing the matter for hearing today. Mr Mpelo said at the time that he would wish to seek legal representation and I informed him that he should understand that representation would have to be arranged in time for today's hearing. 11 On the hearing today Mr Mpelo is again unrepresented and has handed to me certain papers showing that he applied to the Pro Bono Schemes conducted by the Law Society of New South Wales and the Bar Association of New South Wales. Mr Mpelo states that he has inquired of the Bar Association and been informed that no decision has yet been taken on his application. Accordingly, he has asked that today's hearing be adjourned. 12 There is no indication that Mr Mpelo will have the services of a legal representative and I think that sufficient time has been allowed for him to obtain such representation. However, I propose to direct that the order which I will make dismissing his application be not entered for a period of three weeks during which time Mr Mpelo or any lawyer on his behalf will be at liberty to have the case re-listed on twenty four hours' notice for the purpose of making submissions. The present application for review of the RRT's decision 13 In his application filed on 20 March 2000 by which the present proceeding was commenced, Mr Mpelo did not identify any ground of his application. In fact, apart from identifying the decision of which review is sought as being an RRT decision dated 15 March 2000 reference N99/30920, Mr Mpelo answered all other parts of the standard form of application for an order of review with the words "Details will be sent at a later date". 14 Ms Watson, who appears for the Minister, submits that the application should be dismissed pursuant to O 20 r 2(1)(a) as modified by O 54B r 5 of the Federal Court Rules, that is, on the ground that no reasonable basis for the application has been disclosed. I agree and should record that I invited Mr Mpelo this morning to make any submission that he might wish to make in support of his application and he said that he did not feel able to do so as this was a matter on which he would need legal advice. 15 Ms Watson submits in the alternative that the RRT's Reasons disclose no ground of review permitted to the Court. While I agree that they do not, there is always the possibility that a solicitor or barrister representing Mr Mpelo and studying the case closely may discern such a ground of review. I remain open to persuasion that a ground of review described in s 476(1) of the Act exists, but if no submission is made within the three week period to which I have referred, I will remain satisfied on the material before me that no such ground of review is available. In order to reach that stage of satisfaction, I have studied the Reasons for Decision of the RRT which I will now outline. The Reasons for Decision of the RRT 16 The RRT commenced its Reasons for Decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a "refugee". It then turned to consider Mr Mpelo's claims and evidence. The RRT first recounted the claims Mr Mpelo made soon after he was found as an unauthorised passenger and the next day at Villawood Detention Centre and, later, those he made in writing with professional assistance. 17 Mr Mpelo claimed he was fleeing for his life. He had no travel documents. He claimed he had fled the Democratic Republic of Congo, his home country, after being forcibly conscripted to "fight the rebels". Government agents had taken him on the night of 21 September 1999. He had not received prior notice that he was required to render military service. When Mr Mpelo's father had struggled against his son being taken, he was shot. 18 Mr Mpelo was taken for training to a camp in the forest. He claimed that he would be sent to fight after only four days' training and that he would be killed. On 22 September, he escaped with other new conscripts. He escaped by scaling a fence. Then he walked in the jungle for ten days. He walked to the Congo/Angolan border where he received a lift in a truck to a port. The driver suggested he escape by ship. He stowed away on a ship on 9 October 1999 without knowing its destination. He followed workers on board and was apparently not noticed. 19 The RRT noted: "He fears returning to Congo as he would be 'sent back to the army and killed', being considered 'a traitor and treated as such'. As it is the Congolese Army who would wish him harm, he cannot expect protection from the authorities". 20 The RRT noted that Mr Mpelo's story had at first seemed an implausible one, citing inconsistencies between the accounts given in the first interview and his written claims. However, in the "Findings and Reasons" section of its Reasons for Decision, the RRT accepted that Mr Mpelo was a transparently honest witness. It concluded that any discrepancies should be viewed as demonstrating problems of communication rather than an intention to deceive. 21 Mr Mpelo was born in Kinshasa, the capital of Congo, was married and had two young children (twins). The RRT's inquiries established that there was no formal system of registration at a certain age for national service. Mr Mpelo told the RRT that after his father was shot, his father was taken away in an ambulance alive and that he was unaware of his father's current state of health as he had had no contact with his family. 22 The Congolese army took Mr Mpelo with other men in a truck to a region known as Bas-Zaire, several hours out of Kinshasa. The conscripts could discern nothing in common amongst themselves except that they were all being relatively young and able bodied. They were installed in a camp in the jungle. The following morning they were photographed and their particulars were recorded. There was no briefing session and no one in authority told them anything about their situation. There were rumours that they would be trained very quickly and sent into combat against the rebels. 23 Some of the conscripts (there were about fifty in all) broke open the tent and ran off, leading the way out of the camp, which apparently was not well secured. Mr Mpelo also ran into the jungle, heard some gun fire but kept running. He and about four others remained together for about ten days in the jungle, travelling south until they reached the border. Mr Mpelo, now by himself, approached a highway and received a lift on a passing truck and arrived at a port. It was on 9 October 1999 that he decided to stow away on a cargo ship. The RRT noted that according to its own inquiries the ship on which he had arrived as a stowaway at Port Botany had departed from Durban, South Africa on 9 October 1999. 24 This was consistent with Mr Mpelo's testimony that he heard English being spoken at the port. The RRT also noted that the ship had docked in Fremantle before travelling to Sydney. The presiding Member asked Mr Mpelo why he had not disembarked there. He claimed that he was unaware that the ship had docked and was unwilling to let anyone see him during the journey for fear of being cast overboard. Accordingly, he did not emerge until he was certain that the ship had docked. 25 The RRT could discern no political affiliation of Mr Mpelo. He stated that his father had supported the previous President, Mr Mobutu, but, unlike other members of Mr Mobutu's party, did not leave it when Mr Mobutu's power was waning. Although Mr Mpelo's father had later attended a few political meetings, he appeared to suffer no adverse consequences since Laurent Kabila had become President. Apparently none of Mr Mpelo's brothers were targeted for conscription. 26 The RRT questioned Mr Mpelo about the effect in Kinshasa of the fighting and the mood in Kinshasa when the fighting had been much closer. He was asked about the "Lusaka Accord", a ceasefire agreement signed between Kabila and the rebels in July 1999, but he had not heard of this. He was unaware of any change in the general situation of lawlessness and hardship. The RRT thought that Mr Mpelo was not being harmed by anyone in particular, and that he was not suffering in any way different from the rest of the citizens of Kinshasa. 27 It was put to Mr Mpelo that he had advanced no Convention reason for any suffering which he may suffer or has suffered. The RRT's decision notes: "He replied that he ran away to protect himself. He does not want to go back because he does not want to die. By leaving the country, he became a traitor. If he returned, he would be arrested at the airport and no-one would be able to intervene and help him". 28 Mr Mpelo made no claims, nor did the evidence before the RRT reveal, that he had suffered any harm, let alone harm amounting to persecution, in Congo before his departure. The RRT reviewed country information to the effect that life in Congo was marked by civil disturbance, rebellion, a declining economy, and a declining human rights record. However, Mr Mpelo made no claim that he feared persecution within the Kabila administration for reasons of race, religion, nationality, membership of a particular social group or political opinion. His fear was of conscription and its consequences. 29 In reviewing the military situation in Congo, the RRT found a general state of disorganisation, discontentment among soldiers and fighting between rival military groups. It found no evidence of a formal system of national service. The RRT accepted Mr Mpelo's account of his abduction by army personnel and his escape from the army barracks and from his country, noting that independent evidence supported these matters. But it also noted that Mr Mpelo had made no claims that he was targeted for any particular (much less Convention) reasons. 30 The RRT considered whether Mr Mpelo's act of leaving the training camp would result in the authorities imputing to him an anti-Government political opinion which might be injurious to him in the reasonably foreseeable future. The RRT found that it would not, firstly, because there is no indication that he was officially inducted into the army or reliably recorded as such; secondly, because the army and the Government were unlikely to track the conscription in an orderly manner; thirdly, because evidence before the RRT showed that the Government's need for conscripts will diminish rather than increase in the reasonably foreseeable future; and fourthly, because the RRT considered that the mass break-out from the camp would not be considered individual desertion from the army and Mr Mpelo would not be regarded as holding a political opinion for having escaped. 31 The RRT concluded as follows: " … the applicant has made no claims that he has ever suffered persecution for a Convention reason (or any other reason) in the past. He has left his country for a reason which has no Convention nexus: a dislike of being conscripted into the armed services. If he returns to his country, he may suffer the consequences of his actions which led him to depart; however, this should be seen as punishment for the breach of a generally applicable policy. There is no indication that conscription in his case was applied singularly and for a Convention reason; nor that any punishment associated with failing to do military service will be applied in a manner other than that which it is applied universally in that country. The Tribunal is satisfied that the chance that the applicant will be harmed for a Convention reason in the reasonably foreseeable future is remote". Reasoning on the present application for an order of review 32 I have given the above somewhat detailed account of the Reasons for Decision of the RRT because Mr Mpelo is unrepresented and I hesitate to dismiss his application only on the ground that he has not disclosed any reasonable basis for the application, either in the form of application to the Court or orally today. 33 It seems to me that the RRT considered Mr Mpelo's application carefully and concluded that the fear which he propounded was of conscription and its consequences. The RRT correctly appreciated that ordinarily this does not constitute persecution for a Convention reason: Murillo-Nunez v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 150; Timic v Minister for Immigration and Multicultural Affairs [1998] FCA 1750; Mijoljevic v Minister for Immigration and Multicultural Affairs [1999] FCA 834; Mehenni v Minister for Immigration and Multicultural Affairs (1999) 164 ALR 192. 34 I do not think that a ground of review permitted to the Court is established in this case. Conclusion 35 For the above reasons the Court orders that: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 3. Orders 1 and 2 not be entered prior to 30 May 2000.