Odhiambo v Minister for Immigration and Multicultural Affairs [2001] FCA 1092

FEDERAL COURT OF AUSTRALIA

Odhiambo v Minister for Immigration and Multicultural Affairs [2001] FCA 1092 MIGRATION - protection visa – application for review of a decision of the Refugee Review Tribunal Migration Act 1958 (Cth)

Zhou v Minister for Immigration & Multicultural Affairs (2000) FCA 811 referred to

SIMON ODHIAMBO v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 155 OF 2001 TAMBERLIN J PERTH 8 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 155 OF 2001

BETWEEN: SIMON ODHIAMBO

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 8 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 155 OF 2001

BETWEEN: SIMON ODHIAMBO

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 8 AUGUST 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant, who claims to be a citizen of Sudan, arrived in Australia on 13 May 2000. The history of his arrival and the factual background are fully set out in the decision under review and I will not repeat them here. Suffice to say that the applicant's claim is that he will face persecution from the government and those who practice Islam throughout Sudan as a result of his Christian beliefs if he returns to Sudan. He therefore claims to be a refugee on the basis of religious belief. 2 The decision-maker in the Refugee Review Tribunal ("the RRT") concluded that he was unable to accept that the applicant is a national of Sudan. He was therefore satisfied that the applicant had fabricated the claim of his origin in Sudan and his claims of persecution and was not satisfied that the applicant had a well-founded fear of persecution in Sudan for a Convention reason. He then went on to say that having found that the applicant is not from Sudan, and in the light of the linguistic analysis of the applicant's speech which indicates that he speaks Swahili almost as his mother tongue and has grown up in a native coastal Swahili environment, and that he speaks the Kenya coastal variety of Swahili, he was satisfied that the applicant is a national of Kenya, albeit one without any documentation. 3 The applicant takes issue with this finding of the RRT. He says that he is not a liar and that he knows that he came from Sudan and that there has been a serious error in the conclusion reached by the RRT. I should say that in reaching its conclusion as to the origin of the applicant and his nationality for the purposes of assessment, the decision-maker expressed strong doubts as to the credibility of the applicant having regard to a number of matters including different versions he gave as to his background, the circumstances in which he fled and his arrival in Australia. These inconsistencies influenced the decision-maker in forming a view as to whether or not to believe the applicant. In addition, there were several varied accounts of how the applicant came to leave his town and the decision-maker thought that it was physically impossible for the accounts of the voyage stated by the applicant in the hearing to be true. 4 The decision-maker took into account, of course, that the applicant was young when he allegedly left Sudan and that the traumatic events which he asserted had occurred might affect the applicant's behaviour and memory. However, the applicant's vagueness and lack of local and geographic knowledge of Sudan, the several different versions of how he left Sudan and arrived in Kenya, and his statements in relation to the language Dinka, led the decision-maker to conclude that he was unable to accept that the applicant had been truthful about his origins. 5 In my view, this conclusion was not a final ruling independent of the linguistic evidence, but was a step on the way towards the ultimate finding which was made. The consequence of this is that if the linguistic analysis evidence could be shown to have been wrong or incorrect or if it could be demonstrated that an error was made by the RRT in principle, in the way in which it approached this evidence, then the applicant may have some prospect of succeeding. There is nothing before me or in the evidence, however, to contradict the material which came from the linguistic analysis or from the applicant, apart from his assertion that he came from Sudan. 6 In my view, it was open to the decision-maker to rely on this material: see the decision in Zhou v Minister for Immigration & Multicultural Affairs (2000) FCA 811, by way of comparison, where the Court considered the use of this type of linguistic evidence. Accordingly, since the applicant relies on the claim that there was a mistake in relation to the finding concerning his origins in Sudan and the finding that he is a national of Kenya, I do not consider that there has been any error in principle or law which would warrant judicial review in this case. 7 It is not for this Court to determine whether the decision made by the decision-maker was right or wrong in its factual conclusion but whether, in reaching that conclusion, the decision-maker applied wrong principles or otherwise breached the standards laid down in the Migration Act 1958 (Cth). As I stated earlier, I am not satisfied that there has been any such error and, accordingly, I dismiss the application for review with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.