Cole v Minister for Immigration & Multicultural Affairs [2001] FCA 76

FEDERAL COURT OF AUSTRALIA

Cole v Minister for Immigration & Multicultural Affairs [2001] FCA 76 MIGRATION – appeal from decision of primary judge dismissing application for review of Refugee Review Tribunal ("RRT") refusing refugee status – whether trial judge had erred in not finding appellant had well-founded fear of persecution for a Convention reason – whether trial judge erred in not accepting RRT had erred in finding compelling evidence of material or substantial change in circumstances Migration Act 1958 (Cth), s 476(1)(e)

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, cited Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 175 ALR 585, cited JOHN COLE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS No V 827 of 2000 SPENDER, MARSHALL, GOLDBERG JJ MELBOURNE 16 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 827 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: JOHN COLE

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SPENDER, MARSHALL, GOLDBERG JJ

DATE OF ORDER: 16 FEBRUARY 2001

WHERE MADE: MELBOURNE

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

VICTORIA DISTRICT REGISTRY V 827 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: JOHN COLE

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SPENDER, MARSHALL, GOLDBERG JJ

DATE: 16 FEBRUARY 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from the judgment of a single judge of this Court (Heerey J) given on 27 September 2000 whereby an application by the appellant John Cole for an order of review under Part 8 of the Migration Act 1958 of a decision by the Refugee Review Tribunal made on 28 April 2000 affirming a decision of a delegate of the Minister not to grant a protection visa to the appellant, was dismissed. 2 Mr Cole is a 24-year-old male citizen of Sierra Leone. The Tribunal accepted some aspects of his accounts of events in Sierra Leone, but did not accept other parts. The Tribunal accepted that the appellant's father was a member of President Kabbah's army and was killed by rebel troops in 1997 because he refused to assist them in the overthrow of President Kabbah. The Tribunal was satisfied that whatever connection the appellant had with the rebels was not such that would result in a real chance that he would be persecuted should he return to Sierra Leone. The Tribunal accepted that his mother took the appellant and his sister to Kenema after his father's death and that their house was attacked in that village. In his initial account he stated that he fled "into the bush" and that his sister was unharmed, while his mother's arm was hacked off. At the hearing, he stated that when he returned his sister was bearing the marks of an assault. He also said that he had shot one of the rebels in self defence when the deceased searched for him at the back of the house. The Tribunal said: "It does not accept the later account that his sister was assaulted and that he killed a rebel. Nor does it accept that he then joined the rebels who, it seems, were pleased to have him join there [sic] cause." 3 The Tribunal accepted that the appellant and a friend went to South Africa where the friend was killed by criminals. The Tribunal found that: "…since the Applicant fled Sierra Leone, there have been significant changes in the situation." 4 The Tribunal referred in some detail to various sources of country information, and noted in respect of some aspects that, "…as submitted by the Applicant's adviser, not everything was going perfectly to plan" and: "…the information before the Tribunal, including that referred to by the Applicant, makes it clear that the peace agreement has not been a complete success." Importantly, the Tribunal continued: "On the other hand, it is equally clear that Freetown and its surrounding areas have been secured by the government and UN forces and that the UN has strongly committed itself to keeping the peace in those areas while it seeks to spread that peace by persuading the rebels to take advantage of the amnesty offered under the peace agreement and give up their arms. Freetown has not been attacked since government forces regained control there in early 1999. The UN has made a strong moral and financial commitment to securing the peace in Sierra Leone and has longer term plans to increase its military and civil presence to achieve its resolutions. As pointed out by the Applicant's adviser, referring to Somalia as a case in point, some UN missions have failed. However, the Tribunal is satisfied that, at least for the reasonably foreseeable future, Freetown and the surrounding areas, including the area where the Applicant lived just outside the capital city, will remain under the control of the peacekeeping forces and people in those areas can go about their daily lives without a real chance of being persecuted." 5 Two arguments were advanced for the appellant by his counsel, Mr Justin Serong, who appeared pro bono. The first is the submission that Heerey J erred in not finding that the appellant had a well-founded fear of persecution for a Convention reason when he left Sierra Leone. It is argued for the appellant that once the Tribunal accepted his evidence about the attack on his home in Kenema, it could not in law conclude that the attack did not occur for a Convention reason. It was submitted for the appellant that his claim that the rebels attacked Kenema looking for "those who refused to support them" should have been accepted, and that such a reason was within the Convention. The appellant referred to the observation of Gummow J in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 175 ALR 585 at paragraph 147: "The notions of "civil war", "differential operation" and "object" or "motivation" of that "civil war" are distractions from applying the text of the Convention definition. 6 It was submitted for the appellant that in this particular case the Tribunal was so distracted, with the result that the notions of "the general non-discriminatory violence of a civil war" and the rebels' motivation in that conflict being "a fight for control of territory", have been allowed to occlude the necessary Convention reason for the persecution. 7 The second argument for the appellant, while its formulation varied in the course of submission, amounted to the assertion that the material before the Tribunal did not permit it to conclude that there was compelling evidence of a material or substantial change in Sierra Leone since the appellant departed.