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Cases

MIGRATION - appeal from single Judge to Full court - whether primary Judge erred in holding that decision of Refugee Review Tribunal had not involved an error of law within the meaning of Migration Act 1958 (Cth) (s 476) - whether primary Judge erred in holding Tribunal had not failed to take into account relevant material or made other errors of law which constitute jurisdictional error - whether primary Judge erred in holding Tribunal had not failed to consider consequences if it were wrong on findings of fact - where appellant Liberian citizen of Krahn ethnicity - no reviewable error of law.

Yakubu v Minister for Immigration & Multicultural Affairs [2002] FCAFC 57 (

Yakubu v Minister for Immigration & Multicultural Affairs [2002] FCAFC 57 (14 March 2002); [2002] FCA 241
Last Updated: 8 May 2002


Yakubu v Minister for Immigration & Multicultural Affairs [2002] FCAFC 57
Yakubu v Minister for Immigration & Multicultural Affairs [2002] FCA 241



NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
Yakubu v Minister for Immigration & Multicultural Affairs [2002] FCA 241


MIGRATION - appeal from single Judge to Full court - whether primary Judge erred in holding that decision of Refugee Review Tribunal had not involved an error of law within the meaning of Migration Act 1958 (Cth) (s 476) - whether primary Judge erred in holding Tribunal had not failed to take into account relevant material or made other errors of law which constitute jurisdictional error - whether primary Judge erred in holding Tribunal had not failed to consider consequences if it were wrong on findings of fact - where appellant Liberian citizen of Krahn ethnicity - no reviewable error of law.

Migration Act 1958 (Cth) s 476

Abebe v Commonwealth (1999) 73 ALJR 584 cited

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 cited

Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 cons

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 cited

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 cons

Wu Shan Liang v Minister for Immigration and Multicultural Affairs (1996) 185 CLR 259 cited

X v Minister for Immigration and Multicultural Affairs [1999] FCA 697 considered

HUSEIN YAKUBU V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO. N 1225 OF 2001

BEAUMONT, BRANSON & DOWSETT JJ

14 MARCH 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA


NEW SOUTH WALES DISTRICT REGISTRY
N 1225 OF 2001




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

BETWEEN:
HUSEIN YAKUBU

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:
BEAUMONT, BRANSON & DOWSETT JJ

DATE OF ORDER:
14 MARCH 2002

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 1225 OF 2001




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

BETWEEN:
HUSEIN YAKUBU

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
BEAUMONT, BRANSON & DOWSETT JJ

DATE:
14 MARCH 2002

PLACE:
SYDNEY




REASONS FOR JUDGMENT
BEAUMONT & DOWSETT JJ:

INTRODUCTION

1 This is an appeal from a judgment of Kenny J given on 1 August 2001, which, in turn, was an appeal from a decision of the Refugee Review Tribunal ("the Tribunal") made on 26 February 1999, affirming the decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") not to grant Mr Yakubu a protection visa.

2 Mr Yakubu, who was born on 19 April 1970, claims to be a citizen of the Republic of Liberia and of Krahn ethnicity. He arrived in Australia on 21 May 1997 and applied for a protection visa on 26 June 1997. On 20 March 1998 the Minister refused Mr Yakubu.

3 On 2 April 1998, Mr Yakubu applied to the Tribunal for a review of that decision. On 26 February 1999, the Tribunal affirmed the decision of the delegate, finding that it was not satisfied that Mr Yakubu had a well-founded fear of being persecuted in Liberia by reason of his Krahn ethnicity and political opinion. He appealed from the decision of the Tribunal to the Federal Court, claiming that the Tribunal had made an error of law.

4 Before the Tribunal, Mr Yakubu claimed that he had a well-founded fear of persecution if he returned to Liberia because he was a Krahn and had been persecuted in the past. In a statutory declaration dated 25 June 1997, which accompanied his protection visa application, Mr Yakubu stated that he was a supporter of Roosevelt Johnson and an active member of his political party, the United Liberian Movement ("ULM") (semble the United Liberation Movement of Liberia for Democracy).

5 According to Mr Yakubu, his political activities ended when his father and his brother were abducted and killed in early 1993 because of their political activities. He claimed to have been arrested, tortured and threatened with death until his escape from Liberia in March 1997.

6 The Tribunal found that it was "not satisfied that simply being of Krahn ethnicity faces a person with a real chance of persecution in Liberia" (at 13). It also found that it had doubts about the credibility of Mr Yakubu's account of events given the fact that he had a false identity card. It did not accept his account of his detention and escape as credible (at 16). Nor did it accept his claim that he was politically active yet remained unhindered in his village until 1996.

7 Before Kenny J, Mr Yakubu's case was, in essence, that the Tribunal had failed to consider a raft of evidence that was fundamental to his core claim that, simply by reason of being Krahn, he had a well-founded fear of persecution if he returned to Liberia. Mr Yakubu's counsel submitted that the Tribunal's failure amounted to jurisdictional error, because the Tribunal had failed to take into account relevant material.

8 Kenny J found: (i) that the Tribunal did take into account the evidence relating to the prevalence of persecution of persons of Krahn ethnicity in coming to its decision (at [32] - [33]); and (ii) that the Tribunal did take into account the evidence relating to Mr Yakubu's distribution of literature and involvement in radio broadcasts in coming to its decision (at [36]). Accordingly, her Honour ordered that the appeal be dismissed, with costs.

9 Mr Yakubu now appeals from the whole of the judgment of Kenny J. There are two grounds of appeal:-

(1) Her Honour, it is submitted, erred in finding that the Tribunal had not failed to take into account relevant material which it was bound to take into account and that such failure constituted jurisdictional error.

(2) Her Honour, it is contended, erred in finding that the Tribunal had not made other errors of law which constitute jurisdictional error.

10 In order to understand the issues that arise in the appeal, it will be necessary to refer further to the process of reasoning in the Tribunal and at first instance in this Court.

THE TRIBUNAL'S FINDINGS, REASONS AND CONCLUSION

11 In its reasons, the Tribunal described, at some length, the nature of Mr Yakubu's claims and the evidence he relied upon to support them. In the course of this description, the Tribunal noted the following ( at 6 - 7):

"The Applicant submitted material on the situation of the Krahn in Liberia, pointing to the support of some of them for previous regimes and to the hostility of other Liberians towards them, particularly the current government.
It was submitted that General Samuel Doe, who ruled Liberia from 1980 to 1989, was from the Krahn tribe, a small group which made up only approximately 4% of the Liberian population. During Doe's period in power, he placed many Krahn in positions of power. According to information supplied by the Applicant's adviser,

`Doe was from a small ethnic group, the Krahn, who live primarily in eastern Liberia near the frontier with Ivory Coast. Krahn make up only four per cent of the Liberian population, yet Doe appointed Krahn in disproportionate numbers to key government posts; a Krahn directed government security forces and the army chief of staff was Krahn. Such blatant favoritism created growing resentment against the Krahn, particularly among the two largest ethnic groups, the Mio and the Mano ...

After the failed coup, Doe and the Krahn dominated army lashed out at Gio and Mano civilians ... Krahn civilians reportedly helped soldiers hunt down non-Krahn in Doe's home base of Grand Gedah county. No soldiers were ever prosecuted or disciplined ...

... As Liberia hurtled into economic disarray and intensifying repression, Taylor and his small group of guerillas at first limited their targets to soldiers and government officials, Doe responded with predictable brutality, sending two infantry battalions to Nomba county where they killed, tortured and arrested civilians, targeting Gio and Mano ... Taylor's forces responded in kind, summarily executing Krahn civilians and widening their attacks to include Mandingos, who had become identified as pro-Krahn ... (`Liberia: an avoidable tragedy' Current History, pp.213-217).'

The Applicant claimed that he and other family members had supported Roosevelt Johnson rather than Doe. They had not taken part in any of the Doe-initiated brutalities."

12 The Tribunal went on to note this (at 8):

"The applicant claimed that young Krahn males were particularly at risk in Liberia because of their assumed association with Doe. He stated that Charles Taylor would neither forgive nor forget the part played by Krahn in the civil war. Submissions were made that the Krahn remain government targets."
13 The Tribunal noted the following claims, inter alia, by Mr Yakubu as to his family background (at 9):

"He claimed that he did not know his mother's whereabouts. He had last seen her in the family village in Tchien in 1992. He thought that his father and two brothers had been abducted and killed - he had not seen them since 1992. In other submissions, he named the date of the alleged killing of his father and two brothers as 1993."
14 The Tribunal noted that Mr Yakubu made the following "political" claims (at 9 - 10):

"Political claims: In his statutory declaration which accompanied his application for a protection visa, the Applicant stated that he was a supporter of Roosevelt Johnson and an active member of his political party, the United Liberation Movement (ULM). He described the party as consisting mainly of people from the minority Krahn group which was his own ethnic group. The chronology he offered of his own activities at this time was as follows:
1984: membership of the Krahn Youth Association

l990s father one of the financial sponsors of Roosevelt Johnson and the ULM

Applicant distributed literature opposing Charles Taylor and the West African Forces; broadcast on a pirate radio station

1993: father and two brothers abducted and killed;

Applicant escaped from Monrovia and went into hiding in Tiehnpo, remained there one year

July 1994: West African forces took over Tienhpo. Applicant protested against their abuse of citizens.

12 April 1996: arrested by Charles Taylor's forces. Detained for a year

10 March 1997: escaped from prison; stayed two days with his uncle and then walked for four days to the border village of Yuka.

16 May 1997: flew to Amsterdam on a Netherlands passport, remained in that country for three days then taken to Brussels from where he boarded a flight to Australia.

The Department officer questioned the Applicant about his use of the acronym ULM for what was usually known as ULIMO. The Minister's delegate noted that the Applicant had difficulty in explaining the history and development of the Johnson faction and that he had used an incorrect acronym for the United Liberation Movement of Liberia (ULIMO). He had referred to it as the United Liberian Movement or ULM, a group which could not be identified from other sources. It was pointed out to him that Doe was overthrown in 1989, at a time when ULIMO did not exist. The Applicant at that time stated that he did not know anything much of Prince Johnson who was the leader of the group which overthrew Doe.

In response the Applicant's adviser stated that it was a mere quibble and that the Applicant had clearly explained his involvement with the party and with the Roosevelt Johnson faction within the party.

At his Tribunal hearing, the Applicant stated that his father supported anti-Doe people. His father secretly gave money to Johnson. The Applicant was asked why he himself would be against the work of ECOMOG. He responded that it was because they supported Charles Taylor. He said he did not want Krahn hegemony but the Krahn would not be safe as long as Taylor was in place. When ECOMOG had come to his town he had thought life would be more secure but it was not. He joined others in trying to hinder the movements of trucks; he wrote pamphlets and offered other forms of resistance. He had stayed most of the time indoors so as to avoid arrest.

The Applicant stated that although the international community might find the Taylor government to have restored some stability, Taylor was still responsible for deaths, including the president of the University of Liberia. He submitted that although Johnson had been asked to join that Taylor government in a ministerial capacity, that rapprochement had not lasted long and by September 1998, Johnson had fled to Nigeria where he was in `protective custody'.

The Applicant described the help he had received from an uncle by marriage. At his hearing the Applicant described his uncle as not a blood relative but a person married to his aunt. He was a general merchant who had a business in Tiehopo. Although his business suffered during the civil war, he had continued to trade in and out of the Ivory Coast. The Applicant also stated that his uncle had his own army. He protected himself by not sleeping at one place and armed himself. The Applicant claimed that he had heard that his uncle was now on the run."

15 With respect to the alleged deaths of Mr Yakubu's father and brothers, the Tribunal noted this (at 11):

"Alleged deaths of father and brothers: The Applicant gave varied details on this. He submitted to the Department that he did not know when his brother Issan had been killed but he last saw him in 1992. He also was not sure when his brother Bobo was killed but he last saw him in late 1992. He stated that both brothers were members of ULIMO. At his interview with a Department officer, he stated that he thought the abductions of his father and brothers happened in early 1993. His uncle had told him of their deaths although the deaths were never actually confirmed. He himself was in Monrovia at the time. It was assumed that they had been killed by Charles Taylor's forces."
16 The Tribunal noted Mr Yakubu's account of his imprisonment as follows at 10 - 11):

"Account of imprisonment: The Applicant claimed that he [had] been abducted in 1996. Since 1994 he had been living in his home village which was occupied by West African forces. He stated at one time that he was taken from his home, at another that he was taken from a friend's house. He claimed that he was handcuffed, blindfolded and taken in a truck with some others to a village not far from Tchien. He was asked why he would be blindfolded if it was night. He responded that it was so he would not know the way back.
He claimed he had to live for days without food. He was continually tortured and humiliated by the guards. In that time he was never allowed outside. He claimed also that he did not know where he was taken, and that he was held in a windowless cell with about thirteen other people. Two of them were killed. He claimed that he did not know why he was not killed. He knew three others who were held with him; two of them were politically active. The prison was within a military camp. He was asked about the whereabouts of Roosevelt Johnson and asked him to name other people who belonged to the ULM (sic).

The Applicant described the way in which he was able to escape. He had not had any warning that he would be able to escape. He claimed that a door into the corridor was left open. He walked out and broke a window to actually get out of the prison. He thought there would be guards but there were none. He did not know why he was the only one who took the opportunity to escape but he thought his uncle must have made the escape possible. Two men were waiting on the outside to take him back to his village. They called him by name. However, he did not ask them the name of the place where he had been held and he did not recognise any of the villages they passed through on the way back home. The Applicant stated that he did not know if escapes were common.

The Applicant claimed that he stayed in the village for two days and then his uncle helped him to leave. He went by foot to a border village on the Ivory Coast where he was met by his uncle's associates. He was taken to Abjerdin where he stayed for about four days before being given the necessary documents to leave for Europe."

17 Having gone on to note that in order to be a refugee under the Convention, it was necessary for Mr Yakubu to be outside his country of nationality, and for him to hold a well-founded fear of persecution for at least one of the five grounds listed in the Convention, the Tribunal turned first to Mr Yakubu's claims of his identify and nationality as follows (at 12):

"Identity and nationality: The Tribunal rejects the Liberian identity card submitted by the Applicant as valid evidence of his identity and nationality. It accepts the assessment of the Document Examiner that it was similar to other such cards which have been found to be fraudulent. It accepts the evidence of the Liberian representative of the African Communities Council of Victoria that the crest is facing the wrong way and that false documents are very easy to obtain. Added to the evidence of these two people is that from the UNHCR which indicates that no Liberian identity cards have been issued since 1992. The Tribunal also found unreliable the evidence of the Applicant as to how he obtained it. His answers on this matter were inconsistent and contradictory to his claim to have escaped from prison and therefore have needed to escape from Liberia. It is implausible that he would have spent time applying to a government office for a card and/or filling out forms for such a card at his uncle's house. The Tribunal does not accept that the identity card is simply an unreliable document: it is satisfied that the evidence before it permits the conclusion that it is false.
However, this does not of itself mean that the Applicant is not of Liberian nationality. The Tribunal accepts that acquiring any genuine Liberian papers would have been difficult over the long period of civil war. However, the finding that the identity card is false does go to the matter of the reliability of other evidence given by the Applicant, much of which, as will be indicated below, the Tribunal has been unable to accept."

18 The Tribunal went on to find that Mr Yakubu's knowledge of Liberia was sufficient to support his claim to be a Liberian.

19 The Tribunal then addressed Mr Yakubu's claim of Krahn ethnicity as follows (at 13):

"Krahn ethnicity: The Tribunal accepts that the linguistic map of Liberia is extremely complicated and that there is evidence that the language claimed by the Applicant to be his own first language, that of Tchein, is one found in Liberia. There was evidence before the Tribunal that in Liberia the key ethnic identifier is, to a large extent, language. As is indicated throughout this decision, there are serious doubts as to the veracity of the Applicant. However, he has consistently claimed to be a Krahn and the Tribunal has no contra indications that he is not.
The Applicant submitted evidence that it was not safe for Krahn to live in Liberia while it was governed by Charles Taylor and while the memories of Doe-inspired and Krahn instigated atrocities was still fresh. He claimed that simply being Krahn meant that he could face a real chance of persecution.

The Tribunal accepts the information submitted that many Krahn are reluctant to return to Liberia even though the international community has accepted that the election of 1997 was a reasonably reliable expression of the people's will. However, it does not accept that all Krahn are at risk of persecution. There are a number of Krahn ministers in the government. While there have been incidents in which Krahn have been attacked, these have been apparently located usually in Monrovia and involve those know[n] to be or suspected of having links with Roosevelt Johnson. As is indicated below, the Tribunal has been unable to accept the Applicant's claim to have a political profile.

The Tribunal is not satisfied that simply being of Krahn ethnicity faces a person with a real chance of persecution in Liberia."

20 In relation to Mr Yakubu's claims of his detention and subsequent escape, the Tribunal said (at 13 - 14):

"Applicant's account of detention and escape: The Tribunal is unable to accept this account as credible. According to the Applicant, this was a relatively recent event and yet he was unable to give consistent and sensible answers to very basic questions. He changed his mind about the place from which he was taken. He gave inconsistent answers on the people whom he alleges were taken with him. His inability to know where he was held is implausible as his own evidence was that it was a mere thirty minutes from his own village and yet he did not know what place it was. The Applicant has stated that he lived in Monrovia from 1988 to 1994, but he gave his village address from 1971 to 1996 as being that of Tiehupo. While this is acceptable in that having a village base and a city address would be normal, the Tribunal finds it unconvincing that he would not know all those places with[in] half to an hour's distance from the place where he lived for most of his life. He must have travelled often from Monrovia to his village; it simply is implausible that he would not know all the roads leading out from his village.
The Tribunal also shares the positive state of disbelief of the Minister's delegate that he should have been questioned about the whereabouts of Roosevelt Johnson at a time when it was well-known the latter was in Accra, and even making broadcasts on Ghana radio. It would be perverse indeed to ask him questions to which the answer was already known.

The Tribunal found his description of his escape to be entirely implausible. It gained the impression at his hearing that he was making up details as he went along. The account of having a door left open through which only he went, the lack of any guards, the ability for two men to find him in the dark, and his failure to discuss with them the location of his prison and how they had come to find him undermine the veracity of the account. The Tribunal is unable to accept that somehow his uncle bribed the guards sufficiently to let him, and only him, escape. The Tribunal has compared his halting account with information submitted by his adviser on the escapes from prisons and military camps in Liberia. The contrast is that these were camps from which prisoners (plural) escaped, apparently when the prisons were abandoned by their guards. Such information does not overcome the Applicant's inability to give a consistent and credible account. The Applicant's claim to have studied at a university does not sit well with his ignorance of the most serious incident he allegedly would have experienced in his life."

21 Turning to Mr Yakubu's political affiliation claims, the Tribunal made these findings (at 14 - 15):

"Political affiliation: The Tribunal also does not accept his claim to have been politically active as he has claimed and yet remain unhindered in his village until 1996. According to the account given in his first submission to the Department, the West African forces came to his village in July 1994. Although he has claimed to have protested against the soldiers at that time, including throwing stones at them, nothing happened to him until 1996, about the time when those armed force allegedly left his village. He also claimed that he spent most of the time indoors. The Tribunal finds this implausible in the light of the less-than tender treatment of civilians by various militias, including the West African Army. Had he been present in that village and had he been engaged in anti-army activities, it is difficult to believe he would have escaped an early detention. While he has argued that it was the forces of Charles Taylor which had reason to target him, the Tribunal finds it implausible that he could have remained free had he actually confronted the West African soldiers in the way he has claimed. The Tribunal does not believe this evidence.
There is no doubt that terrible and violent things have happened in Liberia. However the Tribunal is unable to accept that the Applicant himself had been subjected to this violence. It is possible that his father and brothers [were] killed in the fighting. Such incidents were possible and almost probable. However, although the Applicant was convincing on his Liberian nationality, he was not at all convincing on his activities and his treatment in Liberia. It has grave doubts as to whether he was even in Liberia at the time claimed. It notes that he travelled from Europe to Australia and it has no evidence other than that given by the Applicant that he was in Europe merely for a few days. According to his original application he has never had a passport and he used the one given to him by his uncle to get from the Ivory Coast to the Netherlands and then to Australia. However, there is no evidence that he used this false passport to exit Africa.

The Tribunal notes that the air ticket used by the Applicant to come to Australia was issued on 7 May, that is, even before the Applicant left the Ivory Coast. While it is possible that detailed arrangements were made for him in advance, it is not a reassuring detail. It could be argued that it was precipitate to purchase an air ticket before it was even clear that the Applicant would be able to get to Europe. The Tribunal does not see this as a determining fact except insofar as it adds to the doubts that he was in Liberia at the time he has claimed and subjected to the treatment he has claimed."

22 With respect to Mr Yakubu's claims about the disposition of his family, the Tribunal said (at 15 - 16):

"Disposition of the Applicant's family: The Applicant has claimed that his father and two brothers were abducted and killed by the forces of Charles Taylor. This is not implausible but the Applicant was unable to reassure the Minister's delegate about this. His answers to her questions were hesitant and his final claim was that he had not seen them since 1992. He also was unable to be sure that they had been abducted by Taylor's forces. The Tribunal finds that it is not possible to draw a firm conclusion from his claim that they are dead or, if they are, the events which surrounded their deaths. The only fact which is available is that he himself has not seen them since 1992 or 1993.
The Tribunal has noted the considerable part played in the Applicant's affairs by his aunt's husband. It has found it difficult to understand the uncle's situation given that he appears to have been able to operate an import/export business even while armed forces which he does not support occupied his village. According to late evidence from the Applicant his uncle had his own private army and this could explain his ability to remain unharmed. The Tribunal does not accept the Applicant's very late claim that he had heard his uncle had disappeared.

The Tribunal accepts the admonitions of the UNHCR Handbook on Procedures and Criteria for determining Refugee Status that:

`The requirement of evidence should ... not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself'.

Australian courts also have warned decision-makers that it is not appropriate to take an overtly stringent approach to questions of credibility.

`... a liberal attitude on the part of the decision-maker is called for, since it is a known fact that a person who claims to be a refugee may have difficulties in proving his allegations. This should not, however, lead to an `uncritical acceptance of any and all allegations made by suppliants.' (Randhawa v MILGEA (1994) 52 FCR 437 (Full Federal Court, 11.8.94).

The Tribunal has taken a liberal approach in accepting the Applicant to be Liberian and Krahn. It has not been able to be satisfied that the core claims he has made, to have been a politically active person who was imprisoned for a time, escaped and fled his country, are genuine. It has considered whether his claim that his Krahn ethnicity is enough to put him at risk of harm and it has not been satisfied that this is so."

23 Finally, the Tribunal added the following general observations (at 16 - 17):

"General issues in repatriation and humanitarian considerations: The Tribunal accepts that many Liberians who fled their country during the period of the civil war are reluctant to return as there remain many economic, social and political problems. While President Taylor has signed a human rights document, there are many examples of mistreatment and abuse of citizens by police and soldiers. Citizens also remain vulnerable to small armed groups who halt travellers and demand money. The sources referred to in submissions made by the Applicant, such as Amnesty and Human Rights Watch, as well as others, such as the United States Department of State Country Reports on Human Rights Practices for 1997, note the significant improvement in stability in Liberia since Charles Taylor's leadership was validated by the 1997 elections. They also note that the country has a long way to go to rebuild its infrastructure and to convince its own citizens that the state is there to protect their security. ECOMOG continues to operate as an African armed force to compel the peace.
The Tribunal accepts that the Applicant's fear of returning to Liberia is genuine and reasonable in that the country is not yet stable and at peace. However, it is not satisfied that it has sufficient facts on which to draw a conclusion that the Applicant faces a differential risk for reason of his race or his political opinion."

24 The Tribunal then expressed the conclusion that, on a consideration of the evidence as a whole, it was not satisfied that Mr Yakubu satisfied the Convention criteria picked up by s 36(2) of the Migration Act 1958 (Cth) ("the Act").

THE GROUNDS OF THE APPEAL FROM THE TRIBUNAL'S DECISION

25 By his application for an order of review dated 1 April 1999, Mr Yakubu appealed from the Tribunal's decision.

26 On 1 July 1999, North J made an order for referral under the Victorian Bar Pro Bono Scheme.

27 By his amended application, signed by counsel then appearing for Mr Yakubu, the following grounds of review were relied upon:

"C. GROUNDS
1. The decision involved an error of law being an error of law involving an incorrect interpretation of the applicable law and an incorrect application of the law to the facts as found by the RRT within the meaning of s.476(1)(e) of the Act in the following ways:

1.1 The RRT misconstrued and misapplied the definition of `refugee' contained in Article 1A(1) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (`the Convention') by failing to apply the correct test for determining whether the applicant had well founded fears of persecution and failed to determine whether on the facts of the case the applicant would suffer persecution on the grounds of:

1.1.1 imputed political opinion; being supporters of Roosevelt Johnson;

1.1.2 race; being persons of the Krahn ethnicity.

1.2 The RRT erred in the manner contended for in paragraph 1.1 above by not considering the evidence provided to it as a whole; such evidence tending to the conclusion that the applicants do have a well founded fear of persecution. The evidence the RRT failed to consider is:

1.2.1 Evidence submitted by the applicant's advisers in a submission dated 16 November 1998 that persons of Krahn ethnicity, whether they be politically opposed to Charles Taylor or not were likely to be persecuted by killing, torture and arbitrary arrest.

1.2.2 Evidence submitted by the applicant's advisers in a submission dated 16 November 1998 that persons who were known or perceived supporters of Roosevelt Johnson were likely to be subjected to persecution.

1.2.3 Evidence provided by the applicant to the RRT by Statutory Declaration declared 25 June 1997 and, orally on 8 November 1998, that the applicant had supported Roosevelt Johnson by distributing literature and broadcasting propaganda on a private radio station.

1.3 Further, the RRT also erred in that by not considering the evidence as a whole, in particular, the evidence referred to in paragraphs 1.2.1 to paragraphs 1.2.3 above it constructively failed to exercise its jurisdiction.

2. Further, by failing to consider the whole of the material before it the RRT has erred in that it has foreclosed reasonable speculation upon the chances of persecution emerging from a proper consideration of the totality of the evidence. It has not asked: `What if I am wrong?'"

THE REASONING AT FIRST INSTANCE

28 Her Honour cited, by way of introduction, the following description of Liberia's origins (at [7]):

"The origins of the Republic of Liberia, the capital of which is Monrovia, is described in the New Encyclopaedia Britannica (15th ed, vol 7) as follows:
`The people most closely associated with the founding of the Liberian state were black freedmen (freed slaves) from the New World, known historically as the Americo-Liberians, who migrated to Liberia mostly between 1820 and 1865. ... [They] have remained a minority of the country's population.

...

President William V S Tubman was Liberia's president from 1944 until his death in 1971. His successor was overthrown in a 1980 coup that terminated more than a century of rule by the True Whig Party and also marked the end of the Americo-Liberians' long political dominance over the indigenous, inland-dwelling Africans. Economic deterioration was one of the reasons for the coup, but the coup's victorious People's Redemption Council could bring no immediate relief. Presidential and legislative elections were held in 1985; General (formerly Master Sergeant) Samuel K Doe, leader of the 1980 coup and subsequent military ruler of Liberia, was elected president and took office in 1986.'"

29 Kenny J went on to observe (at [8]):

"Civil war, primarily between the Krahn and the Gio and Mano peoples, broke out in around 1989-1990. Doe, who was a Krahn, was later killed. A multinational West African force attempted to restore order, while the leaders of two rebel groups, Charles Taylor and Prince Johnson, contended for power. Various provisional governments were established during the 1990s. Fighting again broke out in 1996 between soldiers of Roosevelt Johnson's United Liberation Movement of Liberia for Democracy (ULIMO - J) and forces loyal to Charles Taylor and another individual. The fighting died down in the same year. Roosevelt Johnson's supporters remain predominantly ethnically Krahn. In 1997 Charles Taylor was elected president of Liberia. See also Encyclopaedia Britannica at www.britannica.com, Article `Liberia'."

30 Her Honour, noting (at [22]) the grounds of review stated in the amended application (see par 1.2 cited above), said (at [23]):

"At the hearing, the applicant's case was, primarily, that the Tribunal had failed to consider a `raft' of material that was fundamental to his core claim that, simply by reason of being a Krahn, he had a well-founded fear of persecution if he returned to Liberia. That is, he relied primarily on the matter identified in par 2.6.1 and, to a lesser degree, on the matters set out in pars 2.6.2 and 2.6.3. The applicant's counsel submitted that the Tribunal's failure amounted to jurisdictional error, because the Tribunal had failed to take into account relevant material."
31 Turning to the first particular of this ground of review, Kenny J said (at [32]):

"Whether or not the material concerning the prevalence of persecution of persons of Krahn ethnicity, contained in the letter of 16 November 1998, constituted a relevant consideration in the common law sense, I accept, as the respondent submitted, that the Tribunal took it into account in making its decision. It referred to this material under the heading "Claims and Evidence" - subheading "Krahn ethnicity", specifically noting that:
`The Applicant submitted material on the situation of the Krahn in Liberia, pointing to the support of some of them for previous regimes and to the hostility of other Liberians towards them, particularly the current government.'"

32 Her Honour also noted (at [33]), as confirmation that the Tribunal had directed its mind to the submission, to the passage in the Tribunal's reasons cited above, ending with the quotation from Current History ("Liberia: an avoidable tragedy").

33 Kenny J went on to note (at [34]) the Tribunal's finding (cited above) on the subject "Krahn ethnicity" accepting that many Krahn are reluctant to return, but not accepting that all Krahn are at risk of persecution. Her Honour concluded (at [34]) that it was "plain enough that the Tribunal considered the claim being made as to Krahn ethnicity and the material that the applicant relied on in support of it".

34 Turning to the second particular of this ground of review, Kenny J said (at [35]):

"The foregoing discussion also discloses that the Tribunal not only turned its mind to the November 1998 submission, it also took account of the applicant's further submission that known or perceived supporters of Roosevelt Johnson were likely to be subjected to persecution. Thus, it accepted that there were incidents where Krahn had been attacked, that these attacks were usually in Monrovia, and had involved persons known or suspected of having links with Roosevelt Johnson. It did not accept that Krahn ethnicity alone was sufficient to give rise to a well-founded fear of persecution. Nor did it accept that the applicant had a relevant political profile."
35 Addressing next the third particular of this ground of review, her Honour stated (at [36]:

"The applicant's claim that the Tribunal did not take into account evidence that he had supported Roosevelt Johnson by the distribution of literature and in radio broadcasts also fails. Under `Claims and Evidence' - subheading `Political Claims', the Tribunal specifically referred to the 25 June 1997 Statutory Declaration and to the applicant's evidence at the hearing. It recorded the applicant's claim that, during the 1990s, he had distributed literature opposing Charles Taylor and the West African forces and had broadcast on a pirate radio station. Whilst the Tribunal did not specifically refer again to this aspect of his political profile claim, in its `Findings and Reasons', the Tribunal did discuss the evidence regarding his political profile generally. The Tribunal rejected his claim to have been politically active, `and yet remain unhindered in his village until 1996'. It stated that `although the Applicant was convincing on his Liberian nationality, he was not at all convincing on his activities and his treatment in Liberia'. It found that it was not satisfied that the applicant was a `politically active person who was imprisoned for a time, escaped and fled his country'. There is nothing in the Tribunal's reasons that supports the proposition that it did not consider the applicant's claims concerning his distribution of literature and broadcasting on radio. The Tribunal was not required to deal with this material specifically in its `Findings and Evidence': cf Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 593 per Kirby J and Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [39] per McHugh J."
36 By way of general observation, Kenny J added (at [37]):

"Questions of the weight and the cogency of evidence are matters for the Tribunal. There is no basis in this case to infer that the Tribunal did not take into account the material placed by the applicant before it."
37 Turning to the next ("What if I am wrong?") ground of review, her Honour said (at [38]):

"At the hearing, the applicant did not press strongly a submission that the Tribunal had erred because it had failed to enter into consideration of whether its findings might be wrong. Nonetheless, the submission remained alive. I accept, however, that as the respondent submitted, the Tribunal did not commit any reviewable error in this regard. See Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed) and 255 per Kenny J."
THE GROUNDS OF THE APPEAL TO THE FULL COURT

38 As mentioned above, the grounds of the appeal to the Full Court were stated by Mr Yakubu in his notice of appeal dated 22 August 2001 as follows:

"1. Her Honour erred in finding that the ... Tribunal had not failed to take into account relevant material which it was bound to take into account and that such failure constituted jurisdictional error.
2. Her Honour erred in finding that the ... Tribunal had not made other errors of law which constitute jurisdictional error."

THE ARGUMENT PRESENTED IN SUPPORT OF THE APPEAL ON THE HEARING BEFORE THE FULL COURT

39 Counsel now appearing for Mr Yakubu relied upon an argument before us which, it was submitted for the Minister, departed from the contentions put to her Honour. In order to understand the issues that now arise, it will be necessary to set out the submissions, dated 8 February 2002, now relied upon on behalf of Mr Yakubu, as follows:

1. "At the hearing of this appeal only 1 issue will be raised. Should [her] Honour have held that the Tribunal erred in its interpretation or application of the requirement that a fear of persecution be `well-founded'. This was raised by ground 1.1 in the Amended Application (AB 2). [Her] Honour noted at [38] of the reasons that the Appellant did not press strongly a submission that the Tribunal had failed to consider whether its findings might be wrong but it remained a live issue and [she] found that the Tribunal had not erred in this regard (AB 115).
Introduction

2. The Tribunal accepted that Mr Yakubu was a national of Liberia (AB 97.2) and was of Krahn ethnicity (AB 97.3).

3. The information before the Refugee Review Tribunal (AB 91.1), as supplemented by [her] Honour at [7]-[8] (AB 104), was to the following effect. Liberia was established in the nineteenth century by former slaves from the United States of America. These `Americo-Liberians' dominated Liberian politics until 1980.

4. In 1980, Samuel Doe led a successful coup and became the military ruler and later the President. Doe was from the Krahn ethnic group, which comprises 4% of the Liberian population. Under Doe, Krahn were disproportionately appointed to key Government positions. This favouritism created resentment against the Krahn, particularly amongst the 2 largest ethnic groups, the Mio and the Mano.

5. In l989, a civil war started between with the Krahn on one side and the Mio and the Mano on the other. Doe was killed in 1990. A multinational West African Force attempted to restore order and Charles Taylor and Prince Johnson, the leaders of the 2 rebel groups, contended for power. Krahns feared reprisals and fled the country.

6. In 1991, former supporters of Doe formed the United Liberation Movement of Liberia for Democracy (ULIMO). Its forces entered Liberia in 1991 and were involved in clashes with the forces of Charles Taylor. In 1994, the ULIMO split into 2 separate militias, with one, the ULIMO-J, being led by Roosevelt Johnson.

7. In 1997, elections were held and Taylor was elected President. Roosevelt Johnson was given a ministerial portfolio and later offered a diplomatic posting.

8. In September 1998, there was a gun battle between Johnson's supporters and government troops. Johnson took refuge in the United States embassy, from where he was flown by helicopter to Nigeria (AB 81.9).

Mr Yakubu's case

9. Mr Yakubu was born in Ghana in 1970 to Liberian parents (p 24 para 2). His father held a diplomat position in Ghana and had a business there (p 87.5). The following year, his family was forced to return to Liberia, where they lived at the village of Tiehnpo (p 15 & 24 para 2).

10. In 1984, Mr Yakubu became a member of the Krahn Youth Association while at high school. Through this group he became involved in anti-government activities (p 25 para 4).

11. After President Doe was overthrown, Mr Yakubu's father financially sponsored the ULM (ie the ULIMO) and Roosevelt Johnson (p 25 para 4).

12. Mr Yakubu was a supporter of Roosevelt Johnson and active member of his party, the ULM (p 24 para 4 & 5). His father and brothers were active members of ULM and, because of their involvement, his father and 2 brothers were abducted and killed in early 1993. Mr Yakubu escaped a similar fate because he was in Monrovia at the time (p 25 para 6). Mr Yakubu had last seen them in 1992 and his uncle had told him of the deaths, although they had never been confirmed, and it was assumed that they had been killed by Charles Taylor's forces (AB 95.7).

13. After the death of his father and brothers, Mr Yakubu went into hiding in Tiehnpo at a family friend's home. In July 1994, the West African Forces came to Tiehnpo and Mr Yakubu protested against the soldiers (p 25 & 26 paras 6 & 7). On 12 April 1996, Mr Yakubu was arrested and detained for nearly a year by Charles Taylor's forces who tortured and mistreated him. With the help of an uncle, he escaped and made his way to the Ivory Coast, Amsterdam and then Australia (p 26-27 paras 8- 11).

14. The rest of Mr Yakubu's family have disappeared and been looted and had their homes destroyed (p 28 para 13).

15. The main basis Mr Yakubu gave for his fear of Convention persecution in Liberia was his Krahn ethnic[ity], his support of Roosevelt Johnson and his association with the ULM. The Tribunal rejected these aspects of Mr Yakubu's case and [her] Honour found that the Tribunal had not erred in so doing. That finding is not challenged.

Whether fear `well-founded'

16. It was also part of Mr Yakubu's case that -

(1) his father and brothers were active members of ULM and supporters of Roosevelt Johnson (AB 91.5) and, because of their involvement, his father and 2 brothers were abducted and killed in early 1993 (AB 30.6);

(2) the rest of Mr Yakubu's family have disappeared, been looted and had their homes destroyed (p 28 para 13); and

(3) he was at risk because he comes from a family who had a profile of opposing Charles Taylor and is a member of the Krahn ethnic group that may be targeted by the new regime (AB 74.7 & 84);

17. The Tribunal accepted that Mr Yakubu's fear of returning to Liberia was genuine and reasonable but was not satisfied that there were sufficient facts on which to draw a conclusion that he faced a differential risk for reason of his race or political opinion (AB 101.1).

18. The Tribunal accepted there were incidents where Krahn had been attacked who were known or perceived supporters of Roosevelt Johnson (AB 97.6).

19. The Tribunal accepted that Mr Yakubu's father and brothers may have been killed in the fighting (p 99.2) and found it was `not implausible' that they had been killed by the forces of Charles Taylor but that it was not possible to draw a firm conclusion that they are dead or, if they are, about the events which surrounded their deaths. The Tribunal concluded that the only fact which is available is that Mr Yakubu himself had not seen them since 1992 or 1993 (AB 99.7).

20. In [MIMA v Rajalingam 93 FCR 220 at 239-240], Sackville J, with whom North J agreed, stated -

`61 The RRT performs its fact-finding task as an administrative decision-maker. Although the civil standard of proof is not irrelevant to the process, the RRT cannot simply apply that standard to all fact-finding. Moreover, the RRT must frequently make its assessment on the basis of fragmented, incomplete and confused information. It has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision-maker/investigator. As Gummow and Hayne JJ remarked in Ex parte Abebe (at par 191):

`t is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.'

Even applicants with a genuine fear of prosecution may not present as models of consistency or transparent veracity.

62 In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a `real substantial basis' for the applicant's claimed fear of persecution .....

63 Although the `What if I am wrong?' terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a `well-founded fear of being persecuted' for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute `an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found'.'

21. In [Kalala v Minister for Immigration and Ethnic Affairs [2001] FCA 1594 (12 November 2001)], North and Madgwick JJ stated:

`6 It is, however, commonly the case that the decision-maker either cannot satisfactorily establish what has occurred in the past or actually reaches, as a matter of probabilities, a conclusion as to the past which is adverse to an applicant's claims. In either case it follows, from the lack of necessity for a balance of probabilities assessment of the validity of the fear, that this cannot by itself be an end of the matter. There may be a real and substantial basis for thinking that past events, having a character relevant for the applicant's future, may have occurred notwithstanding either that the truth of the matter cannot be established or that it is actually unlikely that those events did occur. The same is true of imputing a relevant character to past events which themselves are either not in doubt or as to which it has been recognised that there is at least a real and substantial basis for concluding that they may have occurred.

7 In such cases, the degree of probability, even if well below 50 per cent, that the subject events occurred and/or that they bore the subject character needs to be assessed to determine whether an applicant has a well-founded fear of persecution: Abebe per Gleeson CJ and McHugh J at 544-5 (c.f. Kirby J in Wu Shan Liang v Minister for Immigration & Multicultural Affairs (1996) 185 CLR 259 at 294). If there is, in the sense mentioned, an unacceptable risk that the events occurred or had such character, they are to be taken into account in assessing whether there is a real chance of Convention-related harm to the applicant. If there is a real chance that some event occurred or bore a certain character, that circumstance may powerfully affect the assessment of whether fear of future harm befalling an applicant, if returned to his or her country of nationality, is well-founded.

...

25 The learned primary judge correctly found that the Tribunal had concluded that the events described in the article did not give rise to an independent ground for fear of persecution for a Convention reason regardless of what did or did not occur at Tingi Tingi. However, this conclusion cannot, in our opinion, reasonably be said to be one about which the Tribunal had no real doubt. Not only was the Tribunal unsure as to whether the reported events occurred but also, in examining the information about the incident, the Tribunal was simply unclear as to a number of other important factors such as why it occurred and who attended at the appellant's father's house. Although the Tribunal need not express findings in a manner that manifests its degree of conviction or confidence in the correctness of its findings (Rajalingam per Sackville J at 240), in this case the Tribunal Member acknowledged the difficulties in making findings in relation to the article even though concluding that its contents did not support the appellant's application. Further, it is important that the reasoning in Rajalingam should not be misconstrued so as to furnish a means whereby, in the process of judicial review, mere lip service is paid to the relevant principles to be drawn from Chan, Guo and Abebe. Accordingly, the Tribunal was obliged to consider the chance of the appellant's persecution on political grounds on a standard less than the balance of probabilities. The Tribunal Member expressly refrained from drawing any conclusions about the incident described in the article which would have provided some basis for him to reach the position which the learned primary judge seems to have attributed to him, namely that, the motivation of the visitors at the appellant's father's house was definitely not Convention related. To the extent that his Honour so found, in our respectful opinion, he fell into error.'

22. As was the case in Kalala, the Tribunal acknowledged the difficulty in making findings about what had happened to Mr Yakubu's father and brothers and expressly refrained from drawing any conclusions about what might have happened or what implications it might have for Mr Yakubu.

23. The Tribunal made no finding about Mr Yakubu's evidence that the remaining members of his family had disappeared and their homes had been looted and destroyed. It is reasonable to infer that the Tribunal either overlooked this evidence or put it to one side because it was not possible to draw any firm conclusions from it. Be that as it may, that evidence supports the view that it was part of Mr Yakubu's case that all members of his family were at risk because of its political profile.

24. The Tribunal did not reject Mr Yakubu's evidence about his father and brothers and found some aspects of it plausible. In those circumstances, the Tribunal erred by failing to consider whether there was a `real and substantial basis' for concluding that they might have been killed because they were known supporters of Roosevelt Johnson and Mr Yakubu may be at risk because of his family's political profile.

25. [Her] Honour should have found that the Tribunal had erred.

26. The same point could also have been put as a failure by the Tribunal to have regard to a relevant consideration. Namely, was the Appellant at risk of persecution because he came from a family who had a profile of opposing the Charles Taylor [sic]? The Tribunal's reasons suggest that it truncated its consideration of this issue because of its erroneous application of the well-founded test.

27. [Her] Honour's orders and the Tribunal's decision should be set aside and the matter remitted to the Tribunal for hearing according to law."

CONCLUSIONS ON THIS APPEAL

40 Given the reliance now placed, on behalf of Mr Yakubu, upon the reasoning in Rajalingam and in the more recent (12 November 2001 - after the decision of Kenny J here) decision in Kalala, it will be necessary to analyse what was decided in those cases in their context.

41 In Rajalingam, the primary Judge had held that the Tribunal had erred in law by failing to ask itself the question "What if I am wrong?" in relation to its findings of fact on the past treatment of the applicant, and that the failure had affected the Tribunal's consideration of the question whether the applicant had a well-founded fear of persecution. The Minister appealed to the Full Court (Sackville, North and Kenny JJ). The appeal was allowed, the orders made by the primary Judge set aside; in lieu thereof, it was ordered that the application be dismissed.

42 The reasons for allowing the appeal were summarised in the FCR headnote as follows:

""(1) A decision-maker engaged in deciding whether an applicant for refugee status has a well-founded fear of persecution must not foreclose reasonable speculation about the chances of persecution occurring in the future. For that reason, the decision-maker cannot simply apply the civil standard of proof to all fact-finding. (60-61, 136)
(2) Where a decision-maker is uncertain as to whether some alleged event occurred or finds that the event probably did not occur but might have occurred, the reasonable speculation in which the decision-maker must engage may well require the decision-maker to take account of the chance that the event occurred. (62-63, 137)

(3) However, the decision-maker is not required to express findings in relation to alleged past events in a manner which makes explicit its degree of conviction or confidence that the findings are correct. (64)

(4) Nor is it permissible for a court exercising powers of judicial review to impute to a decision-maker a lack of conviction or confidence in its findings of fact, so as to warrant a holding that the decision-maker should not have relied on those findings to decide that the applicant's fear of persecution was not well-founded. Such an approach would involve the Court in reviewing the merits of the decision-maker's decision. (65, 141)

(5) If a fair reading of the decision-maker's reasons shows that the decision-maker had no real doubt that claimed events had not occurred, there is no warrant for holding that the decision-maker should have considered the possibility that its findings were wrong. (67, 140)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411; 160 ALR 543; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 73 ALJR 746, explained.

Abebe v Commonwealth (1999) 73 ALJR 584; 162 ALR 1; X v Minister for Immigration and Multicultural Affairs [1999] FCA 697, considered ...."

43 In our opinion, when viewed in that context, it appears that the observations of Sackville J at [61] - [63] now relied upon for Mr Yakubu, do not demonstrate that the Tribunal erred in law here in the process of its fact-finding. As Sackville J went on to observe (at 241, [67]):

"In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had `no real doubt' (to use the language in Guo) 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': Wu Shan Liang [(1996) 185 CLR 259] at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. ..."
44 And, as Kenny J there observed (at 255 [140]):

"... In deciding whether it has a relevant satisfaction for grant of a protection visa, the Tribunal is required to bear in mind the totality of the case. That ... includes any relevant uncertainty that it entertains as to whether claimed events in the applicant's past may ground a fear of persecution for a Convention reason. In that respect, the Tribunal is required to do no more than to satisfy itself in accordance with commonsense and the ordinary experience of mankind."
45 Nor, in our view, upon analysis, can the observations of North and Madgwick JJ in Kalala (at [6] - [7], [25]) assist Mr Yakubu here.

46 The context in Kalala is, plainly, distinguishable for present purposes. That is identified in the catchwords as follows:

"IMMIGRATION - appeal - review of decision of Refugee Review Tribunal (`the Tribunal') affirming refusal to grant protection visa - Tribunal uncertain about information in a newspaper article - need for Tribunal to be satisfied of something that may be constituted by a mere, although a real and substantial, possibility - whether Tribunal should have applied `real chance' analysis - onus of proof - need for Tribunal to consider any possible grounds of Convention related persecution raised by material before Tribunal even if not advanced by applicant." (Emphasis added)
47 Moreover, after the passage (at [7]) relied upon by Mr Yakubu, North and Madgwick JJ went on the say (at [8] - [9]):

"Such assessments of the degree of probability (it is actually the degree of possibility, unless the term probability is used in a mathematical sense) about past events and their characterisation will often be difficult. Even where full judicial review might be available, it would be only sensible to allow some considerable scope for reasonable variation of individual approach on the part of decision-makers. But these matters provide no reason for failure to insist that such assessment be undertaken.
It is such an approach which, by other words, the `What if I am wrong?' doctrine requires. Useful at appellate level as that expression may have been to analyse alleged error, it can have some drawbacks as guidance for many decision-makers. The `What if I am wrong?' formulation may invite unhelpful and irrelevant mental responses (including `What if I am right?' cf. Merkel J in Somanader v Minister for Immigration & Multicultural Affairs (2001) 178 ALR 677 at 684, and `Well, I have done my best, and hope that I am, after all, right'). Further, an invocation thus to speculate is apt to be perceived as an invitation to a mere guessing game, at which a conscientious decision-maker is, by temperament and training, unconsciously likely to bridle: in the introductory `boilerplate' self-direction commonly employed by Tribunal Members and employed by the Member in the present case, `mere speculation' is, on the authority of Guo, rightly disparaged. We note that Sackville J with whom North J agreed in Rajalingam at 240 and Burchett J in Ponnudurai v Minister for Immigration & Multicultural Affairs [2000] FCA 91 at para 15 also evinced some lack of enthusiasm for the `What if I am wrong?' formulation."

48 In other words, it is not helpful to attempt to generalise in this area, as the particular circumstances must be the central focus of the Tribunal's consideration.

49 In our view, the ratio of the majority in Kalala is explained at [26] of the reasons of North and Madgwick JJ as follows:

"In our opinion his Honour should have held that:
(a) this was a case in which a fair reading of the Member's reasons does not show that the Tribunal `had no real doubt' (using the terminology of Guo) that claimed events had not occurred or that the Tribunal regarded the `probability' of such events as so low as to be negligible; and

(b) a Chan `real chance' analysis was thereby necessitated; which

(c) the Tribunal failed to undertake.

Despite correctly identifying the way in which the Tribunal approached its analysis of the appellant's claim, the learned primary judge erred in assuming, in effect, that the Tribunal had applied the Chan test."

50 The present case is not analogous. Here, as was submitted by Mr Markus for the Minister -

* A consideration of the Tribunal's reasons, as a whole, is called for when assessing whether the Tribunal did consider the possibility that its findings might be wrong, and whether it had engaged in appropriate speculation as to whether the applicant has a well-founded fear of persecution.

* If one examines the Tribunal's reasons, the following observations can be made:

(a) The Tribunal correctly set out the general principles to be applied in assessing claims of a "well-founded fear of persecution" under the Refugees Convention.

(b) The Tribunal gave the benefit of doubt to Mr Yakubu in relation to a number of matters, including his citizenship and ethnicity.

(c) The Tribunal did not accept that "simply being of Krahn ethnicity faces a person with a real chance of persecution in Liberia".

(d) The Tribunal rejected Mr Yakubu's core claims of having a political profile (i.e. that he had been active politically, that he had been imprisoned for a time, that he had escaped and fled Liberia, etc.) on credibility grounds.

(e) The Tribunal was aware of, and dealt in some detail with, the appellant's claims that his father and brothers were abducted and killed by Charles Taylor's forces:-

(i) The Tribunal did note these claims, the fact that Mr Yakubu gave "varied details on this", that he stated that he heard about the deaths from his uncle, and that it was "assumed" that Charles Taylor's forces were responsible.

(ii) The Tribunal concluded that the only fact "which is available" is that Mr Yakubu himself had not seen his father or brothers since 1992 or 1993. The Tribunal observed that Mr Yakubu's evidence before the delegate was hesitant on this issue, and that Mr Yakubu himself was engaging in speculation when claiming that his relatives were abducted by Taylor's forces. The Tribunal also expressed some difficulty in reconciling Mr Yakubu's evidence in respect of the circumstances and activities of his uncle. In all the circumstances, the Tribunal was unable to draw any firm conclusion that Mr Yakubu's father and brothers are dead, let alone about the events which may have led to their death. In so finding, however, the Tribunal acknowledged that "terrible and violent things happened in Liberia" during the early 1990s; and that it was therefore not implausible that Mr Yakubu's father and brothers were abducted or killed.

* Contrary to Mr Yakubu's submissions, the Tribunal, whilst not being satisfied on this matter, allowed for the possibility that his father and brothers have been abducted and killed, and that this may have occurred at the hand of Charles Taylor's forces.

* What the Tribunal was not satisfied of, even allowing for the above mentioned possibility, was that Mr Yakubu had a relevant political profile. The Tribunal did not have any real doubt about this finding and ultimately concluded that it was not satisfied that it had "sufficient facts on which to draw a conclusion that (Mr Yakubu) faces a differential risk for reason of his race or his political opinion" i.e. that the risk of persecution faced by Mr Yakubu was other than remote, insubstantial or a fair fetched possibility.

* On the facts as found by the Tribunal, and allowing for the possibility that Mr Yakubu's father and brothers have been abducted and killed by Charles Taylor's forces, the Tribunal was not satisfied that he faced a real chance of persecution on return to Liberia.

* Mr Yakubu's submissions assert that an alternative way of putting the argument on his behalf is that the Tribunal failed to have regard to the question whether he was at risk of persecution because he came from a family who had a profile of opposing Charles Taylor. But the fact that the Tribunal dealt with this issue both under the heading of `Claims and Evidence' and under the heading of `Findings and Reasons', demonstrate that the assertion is untenable.

ORDERS

51 The appeal should be dismissed, with costs.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours Justice Beaumont and Justice Dowsett.



Associate:

Dated: 14 March 2002

IN THE FEDERAL COURT OF AUSTRALIA


NEW SOUTH WALES DISTRICT REGISTRY
N 1225 OF 2001




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

BETWEEN:
HUSEIN YAKUBU

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGE:
BEAUMONT, BRANSON & DOWSETT JJ

DATE:
14 MARCH 2002

PLACE:
SYDNEY




REASONS FOR JUDGMENT
BRANSON J:

52 I agree with Beaumont and Dowsett JJ that this appeal should be dismissed with costs. I express my general agreement with their Honours' reasons for judgment.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.



Associate:

Dated: 14 March 2002

Counsel for the Applicant:
Mr C Colborne




Solicitor for the Applicant:
The appellant appeared in person




Counsel for the Respondent:
Mr A Markus




Solicitor for the Respondent:
Australian Government Solicitor




Date of Hearing:
14 February 2002




Date of Judgment:
14 March 2002

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