FEDERAL COURT OF AUSTRALIA Minister for Immigration and Multicultural Affairs v "X" [2001] FCA 858 MIGRATION – application for protection visa - decision of Refugee Review Tribunal – whether reasons of Tribunal failed to comply with s 430 of the Migration Act 1958 (Cth) –whether fear of harm from sporadic outbreaks of ethnic or religious violence can constitute persecution - whether error of law by Tribunal affected decision. Migration Act 1958 (Cth) ss 5, 36(2), 65, 430(1), 430(1)(b), 430(1)(c), 430(1)(d), 476(1)(a), 476(1)(e) Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 – applied Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 - considered Adan v Secretary of State for the Home Department [1999] 1 AC 293 - cited Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 - cited MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v "X" V 427 OF 2000 BLACK CJ, LEE AND MERKEL JJ MELBOURNE 6 JULY 2001 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 427 OF 2000 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT AND: "X" RESPONDENT JUDGES: BLACK CJ, LEE, MERKEL JJ DATE OF ORDER: 6 JULY 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The order of the primary judge be set aside and in lieu thereof the application for review of the Tribunal's decision be dismissed. 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 427 OF 2000 BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT AND: "X" RESPONDENT JUDGES: BLACK CJ, LEE, MERKEL JJ DATE: 6 JULY 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT THE COURT: 1 This is an appeal by the appellant ("the Minister") from orders made by a judge of this Court (North J), which set aside a decision made by the Refugee Review Tribunal ("the Tribunal") that the respondent not be granted a "protection visa" and which directed that the matter be returned to the Tribunal for re-determination. 2 The respondent is a citizen of Kenya. On 17 April 1998, he arrived in Australia with a companion ("Y"). Both boys were sixteen years of age. They travelled to Australia as stowaways on an oil tanker. They had boarded the vessel in Mombasa in February 1998. They were removed from the vessel by officers of the Minister's department and placed in "immigration detention" where they were held until released some time later. 3 On 7 May 1998, the respondent lodged an application for a protection visa under the Migration Act 1958 (Cth) ("the Act"). Pursuant to s 65 of the Act, the Minister, if satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, is to grant the visa, but if the Minister is not so satisfied, the grant of the visa is to be refused. 4 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." 5 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". The term "protection obligations" is not defined. 6 The Convention is a treaty pursuant to which the Contracting States agree to apply the provisions of the Convention to "refugees". Article 1(A) of the Convention provides: "For the purposes of the present Convention, the term 'refugee' shall apply to any person who: … (2)… 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;…" Exceptions to the foregoing are set out in, inter alia, Articles 1C(5), 1D and 1E. 7 As a Contracting State, Australia has undertaken the obligations imposed on Contracting States by the Convention. Numerous obligations in respect of refugees are set out in the Convention, including undertakings by a Contracting State not to discriminate against a refugee and to offer to a refugee some of the opportunities available to a national of that State. All of the foregoing may come within a generic description "protection obligations" as that term is used in s 36(2) of the Act. 8 His Honour summarised the "relevant and important aspects" of the respondent's case as follows: "[The respondent] is a Muslim and lived in Likoni, which is a suburb of Mombasa. In August 1997 there was fighting between Christians and Muslims in the Likoni area. [The respondent] claimed that there were riots which were caused by the resentment of Muslims towards Christians. Many Christians had come from the highlands and settled on the coast. The Muslims believed that the Christians were taking their jobs. The Muslims lived in the area first and wanted the Christians to go back to the highlands. In August 1997 riots erupted when some Muslims raided a police station and stole weapons. Police from Nairobi came to quell the riots. The police were a mixture of Muslims and Christians. Shortly afterwards, the police raided the house of [the respondent's] neighbours and then came to his house. When the police arrived he was in the toilet. He heard noises and shouting and became frightened. He then escaped through the back door which was not guarded by police. When he returned after an hour, the house had been ransacked and his mother's face was swollen. [The respondent] went with his friend to live on the beach after the police raid. The police did not return to his house to search for him. The police came to the beach at the time of the raid on [the respondent's] home and one week later, but did not visit the beach again. [The respondent] believed that his father and brothers were taken to prison because they were Muslim and were suspected of being involved in the violence. [The respondent] did not know why they were suspected of such involvement. [The respondent's ] father was a member of the KANU (Kenyan African National Union) Party. [The respondent] was frightened of being harmed by Christian gangs. He and his friend were beaten up by one such gang because they had a boat which the gang wanted. The gang threatened to kill them if they did not hand over the boat. [The respondent] said he feared returning to Kenya because he thought he would be arrested like his father and brothers. The guns stolen from the police station had still not been recovered, and [the respondent] feared that, having fled Kenya, he would be suspected of having stolen the guns. He also feared that he would be imprisoned on return for having left illegally without documents. In summary [the respondent] feared that he would be arrested because he is Muslim, because he is a member of a family that had already been the subject of persecution and suspicion, and because he is a member of the Digo tribe. He feared that he would be arrested, jailed and subjected to torture and possibly execution." 9 After his arrival in Australia the respondent was informed by telephone by his step-brother in Kenya that his father had died in custody in Mombasa and that his mother had also died. No details of the circumstances of the deaths were provided. 10 His Honour found that the reasons of the Tribunal disclosed that grounds for review of the Tribunal's decision arose under s 476(1)(a) and (e) of the Act. First, his Honour found that the Tribunal had failed to comply with the requirements of s 430(1)(d) of the Act by failing to refer to material which "contradicted" the conclusion of the Tribunal on a material question of fact, namely, as to the likelihood of violence continuing "in the Mombasa area" (s 476(1)(a)). Second, his Honour found that in two respects the Tribunal applied an incorrect interpretation of the law by stating that, for there to be a real chance that the respondent would suffer persecution for a Convention reason, he would have to show that he would "suffer differential impact…over and above the ordinary risks of civil unrest", and by failing to understand and apply the correct meaning of the term "persecution" (s 476(1)(e)). The s 430 issue: 11 The Tribunal found that even if it were satisfied that the respondent's father had been arrested in the circumstances described by the respondent and that his parents had both subsequently died, nevertheless, the respondent did not have a well-founded fear of persecution. This conclusion appears to have been based primarily upon a finding that the Kenyan authorities did not have an interest in the respondent, who had no political profile and was 16. The respondent did not fit the profile of those whom the authorities regarded as responsible for earlier trouble. The second relevant finding was that the violence and the reaction of authorities thereto was a discrete event which, at the time of decision, had dissipated and was no longer of any significance in either racial, religious or political terms. The Tribunal's reasoning on the question of violence included the following: "In addition to its findings in relation to other issues, the Tribunal found that any fear of persecution held by the respondents could not be said to be 'well-founded' because the outbreaks of violence in Mombasa had ceased." 12 Before the primary judge the respondent argued that the Tribunal's treatment of this question was flawed because the Tribunal did not deal with a news release by Amnesty International dated 8 April 1998 ("the Amnesty Report") which had been submitted to the Tribunal but to which it made no reference in its reasons. 13 The relevant parts of the Amnesty Report, identified by the trial judge , are as follows: "NAIROBI. 8 April – A coalition of three major human rights groups today called Kenya 'a powder keg waiting to explode' and warned the government to stop using 'divide and rule' tactics that are likely to plunge the country deeper into violence. … The delegation found the situation particularly serious in the Rift Valley, where killings continue sporadically after the recent mass attacks. More than 100 people have been killed and thousands displaced since the latest violence began in January 1998. 'Kenya is a powder keg waiting to explode, all the signs are there' said Edge Kanyongolo, a spokesperson for the delegation, speaking at a press conference today in Nairobi. 'The downward spiral of violence and ethnic hatred is resulting in increasing human rights violations, and will not end until the government stops using divide and rule tactics'. Survivors of violence in the area describe an ongoing 'war' in which members of previously mixed communities attack each other with arrows and pangas (machetes). In the first wave of incidents, in Laikipia, guns were also used. Many survivors are afraid to return to their homes, citing the lack of security in the area and the apparent unwillingness of the authorities to prevent further attacks. The government has systematically failed to investigate and punish armed aggressors, and to protect frightened, angry and displaced people. The human rights delegation expressed fears that the supporters of the ruling party are instigating political violence, but blaming the incidents on spontaneous outbursts of ethnic hatred." 14 The respondent argued that the Amnesty Report indicated that, contrary to the Tribunal's finding, there was a continuing likelihood of further outbreaks of violence in Kenya. It was submitted to the primary judge that in not referring to the Amnesty Report the Tribunal had failed to make a "finding on a material question of fact" and so had failed to discharge its statutory obligations under s 430(1) of the Act. That failure, it was said, amounted in turn to a failure to observe a procedure required to be observed in connection with the making of the Tribunal's decision, so as to give rise to a ground of review under s 476(1)(a) of the Act. 15 Section 430(1) of the Act provides: "Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." Section 476(1)(a) provides for the review by the Federal Court of a judicially reviewable decision on the ground: "that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed ... ." The Minister's response at first instance was that s 430(1) did not provide for procedures "required…to be observed in connection with the making of the decision" and that even if it did the Tribunal was not obliged to refer to evidence that tended to contradict its positive findings. In any case, it was said, the Amnesty Report referred, as a matter of fact, not to the region surrounding Mombasa, but to the distant Rift Valley. As to the latter point, the trial judge did not agree; he interpreted the Amnesty Report as "a commentary on the threat of violence throughout Kenya" (at [52]). 16 The trial judge was faced with conflicting lines of authority as to the Minister's two primary arguments. After reviewing the cases, his Honour preferred the approach taken to both issues by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Yusuf (1999) 95 FCR 506. Thus, he held at [54] that a failure to satisfy the requirements of s 430(1) was amenable to review on the ground contained in s 476(1)(a), and at [84], that in order to fulfil those requirements the Tribunal was bound to refer to material inconsistent with its decision. The judge found that the Tribunal's finding that there was no indication of continuing violence in the Mombasa area, and that the violence complained about had dissipated in two or three months, was a finding on a material question of fact. He held that although the evidence supporting that conclusion was referred to, the Tribunal's failure to refer to the later evidence contained in the Amnesty Report, which, he said, contradicted the conclusion of the Tribunal, was a failure to fulfil the obligation cast upon the Tribunal by s 430(1)(d). 17 Both of the critical issues were subsequently considered by a Full Court of five in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 ("Singh"). Singh confirmed the correctness of the approach favoured by the trial judge regarding the relationship between s 430(1) and s 476(1)(a). On the question of the need to refer to evidence tending to contradict positive findings of material fact, however, the Court in Singh disapproved of the approach taken by the Full Court in Yusuf. The majority stated, at [46]: "There is no specific requirement in s 430 for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made. That is the view endorsed by the decisions referred to in par 12 above, and in our view it is consistent with the language of the section. The decision of the Full Court in Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 1726 provides another illustration of this approach. There the Court held that the RRT was not obliged to analyse material submitted by the applicant, and to give reasons for not accepting any of it that might be thought to be inconsistent with the conclusions it reached. The endorsed view is subject to the important qualification that if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT's actual reasoning process: see Durairajasingham (supra)." The reference to Durairajasingham is a reference to the decision of McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. 18 Subsequent to the hearing of this appeal, an appeal to the High Court in Yusuf was determined: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ("Yusuf")) The majority of the High Court (Gleeson CJ at [9]-[10], Gaudron J at [34]-[35], McHugh, Gummow and Hayne JJ at [68] and [77] and Callinan JJ at [217]) held that s 430 does not oblige the Tribunal to make findings on matters of fact said to be objectively material to the decision the Tribunal is required to make under the Act, and a statement to the contrary in Singh ([47]-[48]) was disapproved. Therefore, failure to make such a finding of fact could not be a failure to comply with a procedure required by the Act to be observed and, thus, no ground for review on that basis could arise under s 476(1)(a) of the Act. Implicit in the foregoing statement was the further statement that s 430(1)(d) did not impose an obligation on the Tribunal to refer to relevant evidence not relied upon by the Tribunal for the making of the finding of fact. However, the High Court in Yusuf pointed out that failure by the Tribunal to make a relevant finding of fact and take account of relevant considerations may support a finding of actual or constructive "jurisdictional error" or error of law providing a ground for review under s 476(1)(b), (c) or (e) of the Act: Yusuf per Gleeson CJ at [10]; per McHugh, Gummow and Hayne JJ at [76]-[83] and per Gaudron J at [38]-[44].) 19 It follows that his Honour erred in law in holding that the Tribunal, by failing to refer to the Amnesty Report which his Honour said "contradicted" the finding of fact made by the Tribunal, failed to comply with a procedure set out in s 430(1)(d) of the Act. 20 On the hearing of the appeal, counsel for the respondent further submitted that to make the finding of fact that violence had ceased in Mombasa the Tribunal must have rejected the Amnesty Report and as the Tribunal had not included that rejection as part of the reasons set out in its statement of reasons, as required by s 430(1)(b), ground for review of the Tribunal's decision arose under s 476(1)(a). 21 Although it may be acknowledged that a failure by the Tribunal to include in the s 430 statement its reasons for making the decision or the findings on material questions of fact actually made by it may attract the ground of review provided by s 476(1)(a) (see Durairajasingham per McHugh J at [65]), the respondent's submissions must be rejected. The impugned section of the Tribunal's reasons concerns the respondent's claimed fear of persecution consequent upon arrest by the authorities in Mombasa. The context shows that the "violence" to which the Tribunal was referring was the violence that had led to, and followed, the attack on the police station in Likoni and the subsequent police investigation. Indeed, it was in support of the claim that the respondent feared ill-treatment if arrested and detained that the Amnesty Report was cited in the written submissions made to the Tribunal on his behalf. While the report predicts future outbreaks of violence in Kenya generally, it is not directed to the violence associated with the police station incident in Likoni, which is what the Tribunal was directing its attention to at this point in its reasons. There was no failure to set out the reasons relied upon by the Tribunal. The differential impact issue: 22 A differential impact issue was also the subject of argument. The argument requires consideration of the respondent's claim to having a well-founded fear of being persecuted for reason of religion. The claim, the Tribunal's discussion of the claim and the material relied on by the respondent to support it, can be summarised as follows: · as a result of the longstanding conflict between Christians and Muslims the "Muslims had revolted and started to kill the Christians" in August 1997 and "this had created a lot of discrimination against the Muslims"; · the Askari (the police) did not support or protect the Muslims; · the respondent's father and brothers were detained by the Askari and taken to prison because they were Muslims who were suspected of being involved with the violence; · the respondent fled to live on the beach for 6 months as, although he had not himself been harmed, he "was in constant fear of the Christian gangs who were terrorising the area" and "were agents of the government who were persecuting him for being Muslim…"; · the respondent, and his friend with whom he was living on the beach, were threatened and beaten by Christian gangs who demanded the boat they had found and hidden; 23 It was submitted to the Tribunal on behalf of the respondent that he would not enjoy reasonable protection and any due process of law if he were returned to Kenya as: · he fears sporadic outbreaks of inter-ethnic and religious conflicts will continue; · he will be arrested and gaoled by the Askari, subjected to torture and possibly executed because he is a Muslim; · he is in serious risk of persecutory harm. 24 The Tribunal dealt with the claim (following Adan v Secretary of State for the Home Department [1999] 1 AC 293) by stating: · a "differential impact, or fear of persecution for Convention reasons over and above the ordinary risks of ethnic warfare, must be shown"; · it was "not satisfied that [the respondent] has suffered a differential impact, or fear of persecution for Convention reasons over and above the ordinary risk of ethnic religious warfare"; · although Muslims were targeted by the authorities after the violence, that was "a legitimate security measure as the Muslims had started the ethnic/religious unrest by raiding the police station and stealing guns which they then used to kill Christians"; · there is "no evidence…that Muslims were generally detained and executed as claimed by the applicant"; · that it was therefore not satisfied that "there is a real chance that [the respondent] will suffer a differential impact or persecution for a Convention reason over and above the ordinary risks of civil unrest and that [the respondent's] fear of being caught up in sporadic outbreaks of inter ethnic and religious conflicts or in random violence is not a fear of persecution within the meaning of the Convention". 25 One of the reasons given by the RRT for rejecting the respondent's claim of a fear of religious persecution was that, as there was no evidence of such persecution occurring "generally", a claim of a fear of being targeted as a Muslim in sporadic outbreaks of inter religious conflicts or violence is not a fear of persecution for a Convention reason. As was pointed out by Gaudron J in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 175 ALR 585, at [24]: "In a number of cases, this Court has emphasised that, for the purposes of the Convention, '[persecution]…for reasons of race, religion, nationality, membership of a particular social group or political opinion' is conduct which is discriminatory on one or other of those grounds and which is sufficiently serious to constitute persecution. In cases where, for example, conduct is aimed at a particular religious group, its discriminatory nature may be so obvious that there is no necessity to characterise it as such or to analyse what is involved in the notion of 'discrimination'. In a context of shifting clan allegiances and clan warfare, however, discrimination may be difficult to perceive unless the elements of what is involved in that notion are kept in mind." [Footnotes omitted] 26 While her Honour was in dissent in that case, the point made in the above passage was not in question. 27 The Tribunal erred in concluding that a fear of harm as a result of being a Muslim who would be targeted as such, in "sporadic outbreaks of inter ethnic and religious conflicts or in random violence" would not represent fear of persecution for a Convention reason. Such a fear is plainly for a Convention reason. The question for the Tribunal was whether there was a real chance of that harm occurring to the respondent if he returned to Kenya. An issue arises, however, whether the error affected the decision of the Tribunal. 28 Under s 476(1)(e) of the Act an applicant must establish that the decision involved an error of law, but as was stated by Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 384 something more than "the mere occurrence of error is necessary". Their Honours added that an error is not involved in a decision "if it did not contribute to the decision or if the decision must have been the same regardless of the error". 29 The essential finding by the Tribunal was that what occurred in or about Mombasa in August 1997 was an isolated incident that would have no sequelae connected with race, religion or political opinion for citizens of Kenya resident in or about Mombasa. Once the Tribunal reached that conclusion, any error in the Tribunal's understanding of the meaning of persecution in circumstances of past civil disorder lost its significance. The reason for that is that the Tribunal had concluded that there was no real chance that the respondent would suffer such harm in the future as the civil violence had ceased. In that context, the Tribunal's conclusion that there was "not a real chance that [the respondent] will be persecuted in the reasonably foreseeable future" should not be treated as a conclusion that was based upon or affected by its erroneous understanding of what may constitute religious persecution. The "sur place" issue: 30 The same conclusion must follow in respect of a submission that the Tribunal erred in failing to determine whether the respondent had a well-founded fear of persecution by reason of events that occurred after his arrival in Australia, namely, the identification of the respondent to Kenyan authorities in conversations conducted between officers of the Minister's Department and Kenyan authorities in respect of the identity, background and family situation of the respondent. Having determined that the decision of the Tribunal was to be set aside, it was unnecessary for his Honour to deal with that issue but it is apparent that the essential finding of the Tribunal discussed above made that ground of review untenable. Conclusion: 31 The appeal must be allowed, the orders made by his Honour set aside and the application for review of the Tribunal's decision dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and Justices Lee and Merkel. Associate: Dated: 6 July 2001 Counsel for the Appellant: Mr AL Cavanough QC Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondent: Mr RM Niall Solicitor for the Respondent: Erskine Rodan and Associates Date of Hearing: 8 November 2000 Date of Judgment: 6 July 2001