Mchinangome v Minister for Immigration & Multicultural Affairs [2001] FCA 1089

FEDERAL COURT OF AUSTRALIA

Mchinangome v Minister for Immigration & Multicultural Affairs [2001] FCA 1089 MIGRATION – where applicant claims to have been born and raised in Rwanda – where RRT not satisfied that the applicant was a citizen of Rwanda – "what if I am wrong" test – whether the reasons given by the decision-maker expressed any significant doubt or lack of clarity.

WORDS & PHRASES – "What if I am wrong?"

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 applied TOFFIKI MCHINANGOME v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 134 of 2001 TAMBERLIN J PERTH 6 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 134 OF 2001

BETWEEN: TOFFIKI MCHINANGOME

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 6 AUGUST 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: The application for review is 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 134 OF 2001

BETWEEN: TOFFIKI MCHINANGOME

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 6 AUGUST 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 In this matter, the applicant arrived in Australia on 13 May 2000 after stowing away on a vessel departing from Kenya. His claim was that he was a citizen of Rwanda who had been living in Kenya for the past three years. Shortly after his arrival, on 6 July 2000, the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 8 February 2001, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa. On 12 February 2001, the applicant applied for review of that decision. The matter came before the Refugee Review Tribunal ("the RRT") and, on 21 April 2001, the RRT published its decision in which it affirmed the decision not to grant a protection visa. 2 The facts relevant to the background and the claims of evidence are fully set out in the decision of the RRT and I will not repeat them here. In its findings and reasons, the RRT was not satisfied that the applicant was a citizen of Rwanda and found that there was nothing to suggest that the applicant had been in Rwanda at any time. The applicant's claim was that he was born and raised in Rwanda. He claimed to be a Hutu who would be subject to persecution on ethnic grounds if returned to Rwanda. 3 The decision-maker had regard to the language spoken by the applicant, and his evidence as to the language spoken by his parents. After reviewing the evidence in some detail, and particularly having regard to the linguistic material, the decision-maker made an affirmative finding that the applicant was not a citizen of Rwanda. In relation to the question of his relationship with Kenya, the RRT expressed the view that a conclusive finding could not be made that he was a citizen of Kenya, although the probability that this was the case was considered to be very high. It was pointed out that the applicant speaks the language of Kenya and, on his own admission, has lived in Mombasa, which is a coastal Kenyan town. He appeared to have a lack of knowledge in relation to details of locations and matters transpiring in Rwanda, but nevertheless consistently stated that he was a citizen of Rwanda and rejected any suggestion that he was a citizen of Kenya at any time. 4 The grounds of the Amended Application, which was filed in Court this morning, raised the question whether the RRT had erred in law or principle in failing to make findings with respect to whether the applicant would be a refugee if he had established that he was a citizen of Rwanda, contrary to the finding which was made by the decision‑maker. As I understand it, the basis for this submission is what has been referred to in a number of authorities as the "what if I am wrong" test. Under this test, the decision‑maker is required to ask whether, in the event that a finding is wrong, an applicant might come within the Convention definition of a refugee. Underlying this formulation is the basic requirement that it is not sufficient simply to find on the balance of probabilities that a person might be exposed to detriment within the meaning of the Convention if returned to a country, but that it is necessary to take into account whether there is a "real chance". This latter test is a lower threshold, of course, than the threshold of the balance of probabilities. 5 This test or criterion has been adopted by the Court in a number of cases, and most relevantly for present purposes in the case of Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In that case, Sackville J, with whom North and Kenny JJ agreed in substance, said at 241: "If a fair reading of the reasons as a whole shows that the RRT itself had 'no real doubt' … [that the] claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A 'fair reading' of the reasons incorporates the principle that the RRT's reasons should receive a 'beneficial construction' and should not be 'construed minutely and finely with an eye keenly attuned to the perception of error'." In the decision of Kenny J in that case, her Honour expressed the question as being whether the findings of the RRT were clear and unequivocal. 6 The question in the present case is whether it can be said that the reasons given by the decision‑maker expressed any significant doubt or lack of clarity in relation to the RRT's finding that the applicant was not a citizen of Rwanda. In my view, when one considers the approach taken by the decision‑maker, and the language used, there is no indication of any real or significant doubt in the view reached by the RRT in its reasons, and in the mind of the decision‑maker, that the applicant was not a citizen of Rwanda. Of course, regard must be had to the substance of the decision as a whole. It is not sufficient for a decision-maker to simply 'mouth' an assertion as a certainty if it is apparent from the reasons, when read as a whole, that there was some doubt. 7 It repeatedly emerges from the decision that expressions are made as to satisfaction of the decision-maker as to the applicant's lack of connection with Rwanda and the implausibility of his claims to have any connection with Rwanda. This is to be contrasted with the language used by the decision‑maker in relation to the question of the applicant's connection with Kenya. When dealing with that question, the decision‑maker states, at 13: "I am satisfied that the chance of his suffering harm amounting to persecution for a Convention reason if he were to be returned to Kenya is remote. I am satisfied that the applicant does not have a well-founded fear of persecution for a Convention reason in relation to Kenya." 8 The decision‑maker expressed some difficulty in making a conclusive finding that the applicant was a citizen of Kenya, although the probability of this being the case was said to be very high. When one compares this with the language used by the decision-maker in relation to the finding with respect to the applicant's connection with Rwanda, it is evident that there was no basis for a conclusion that there was doubt in the mind of the decision-maker. It is apparent that the decision-maker did not entertain the same degree of confidence in the finding in relation to the applicant's citizenship of Kenya. 9 In these circumstances, I consider that the decision‑maker did not fall into any error with respect to applying the principle of whether there is a real chance and in applying the particular formula as to the "what if I am wrong" test. I am not satisfied that any failure emerges or is disclosed in the reasons for decision of the decision‑maker in relation to this approach. Accordingly, the decision of the Court is that the application for review is dismissed and it follows that costs should follow the event and the applicant should pay the costs of the Minister of this application. 10 I am indebted to Counsel, particularly to Mr Mohen, for taking on the difficult task of examining this application and presenting an argument to represent the interests of the applicant. His work has been of considerable assistance to the Court. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.