NACE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1088

FEDERAL COURT OF AUSTRALIA

NACE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1088 NACE V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N179 OF 2004 STONE J 24 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 179 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NACE

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 24 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. 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

NEW SOUTH WALES DISTRICT REGISTRY N 179 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NACE

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE: 24 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Federal Magistrate Barnes; [2003] FMCA 589 in which her Honour dismissed an application for review of a decision of the Refugee Review Tribunal ('Tribunal') having found that there was no jurisdictional error in the Tribunal's decision. On 18 September 2002 the Tribunal had affirmed a decision of a delegate of the respondent refusing to grant the appellant a protection visa.

The appellant's claims and the tribunal's decision 2 The appellant is a citizen of Uganda who came to Australia on 22 October 2000 as a representative of Uganda in the Paralympics swimming team. In paragraphs [2]- [6] of her reasons for judgment, Federal Magistrate Barnes accurately summarised the factual background to the appellant's claim and the decision of the Tribunal. I gratefully adopt her Honour's summary which is as follows: 'In her protection visa application [the appellant] claimed that a customer of her mother's small retail business had recruited her to spy on persons in hotels who were suspected of planting bombs in Kampala and to report suspicious looking persons. She understood that Sam, the person who recruited her, worked for the UPDF (Uganda Peoples Defence Force). She claimed that she did not observe anyone suspicious and that she reported this to Sam each Sunday when he visited her home. She also claimed that her mother had been the subject of extortion by persons whom she suspected were members of the ADF (Allied Democratic Forces) who were fighting the government. She claimed that the family was in crisis and that she was working for the UPDF against her will and that her mother was supplying food to the ADF against her will. Her mother had told her not to return to Uganda. In her application to the Tribunal she claimed that as a woman she was a member of a particular social group in Uganda. She claimed that as she had a working knowledge of the UPDF intelligence operations her life was in danger if she returned to Uganda and as she had lost her father (who had died in 1979) she had no male figure to protect her. The Tribunal held a hearing on 12 August 2002. In the hearing the applicant clarified that in July 1999 she had been asked to work for Sam. She suggested to the Tribunal that he worked for the ISO (Internal Security Organisation). She made an additional claim that she had been provided with a "radio" through which she was told what to do and where to go and that she was required to record conversations in the bars she was told to visit. She claimed that she handed in tapes to the barmen as instructed and that she worked three times a week in this activity from July 1999 until February or March 2000. She also claimed that she had been given a second job by Sam in February or March 2000 to act as a female decoy, to involve herself with a man who was wanted by the government and then to poison him. She claimed that she refused this job and as a result she was threatened. Subsequently she was allowed to discontinue her surveillance work in the bar although she was warned by Sam because she refused the poisoning task. She claimed that shortly afterwards her mother's shop was vandalised and that she and her mother had received anonymous threatening letters. She went to stay with her grandmother, but after she had been there about three months the house was "hit" from the outside and part of it collapsed. Her mother continued to encounter difficulties in the shop. At the same time the applicant was involved in a swimming programme and from early 2000 on was training for the Paralympics. The applicant claimed that if she returned to Uganda she would be required to kill the man wanted by the government and that then she would be killed. The Tribunal put a number of inconsistencies and concerns about the applicant's claims to her (in particular the fact that her additional claims, relating to the decoy and killing jobs, the attack on her mother's shop and the threatening letters she claimed to have received, were raised for the first time before the Tribunal and were not referred to in the original application). It also raised with her its view that her claims were implausible. Tribunal decision In its reasons for decision the Tribunal found that the applicant was not a credible witness. It found that the applicant's claims were inconsistent at various stages including within the hearing, that they were utterly implausible and not supported by independent evidence. It accepted, on the basis of independent evidence, that there were incidents of bombing in Kampala during 1998 and 1999 which were well-documented and that the government had established a specialised police anti-terrorism squad. It rejected as utterly implausible a claim that an inexperienced young woman would be recruited as a spy as the applicant claimed. It also rejected as implausible the claim in relation to the decoy and killing job that she said she had refused to do for the ISO. It had regard to the fact that no serious harm had befallen the applicant as a result of her claimed refusal and that she had continued her regular routine of swimming training thereafter. It found such claim to be lacking in credibility and also rejected the claim that she had received threatening letters. Her claims were said to be mere assertions and were found not to be based on true incidents involving the applicant. The Tribunal found, given the stability of the present government, that any harm suffered in 1979 (the year the applicant was born) which killed her father and brothers and left her with a disability was a one-off event. The Tribunal was prepared to accept the claims concerning the break-in to the applicant's mother's shop, but found that any intimidation or extortion related to the mother's role as a shopkeeper. It was also prepared to accept that the applicant's grandmother's home was knocked down or damaged in some way. However it regarded these incidents as separate and individual incidents and not part of a series of events designed to harm the applicant for Convention reasons. The Tribunal was not satisfied that the applicant had suffered harm, let alone harm amounting to persecution, for a Convention reason in the past. It was satisfied that the chance that such harm would befall the applicant in the reasonably foreseeable future was remote. It was not satisfied that the [appellant] had a well-founded fear of persecution within the meaning of the Convention.'