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2 The appellant claims to be a 19 year old citizen of Uganda. He arrived in Australia on 13 May 2000 after stowing away on a marine tanker from the port of Mombassa in Kenya. On 3 July 2000 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act) on the ground that if he is returned to Uganda he will be persecuted for reasons of his race. A delegate of the respondent refused that application on 12 February 2001. On 26 April 2001 the Refugee Review Tribunal (the Tribunal) affirmed that decision. The appellant applied for judicial review of the Tribunal's decision. On 28 August 2001 Tamberlin J dismissed his application. This is an appeal from the judgment of Tamberlin J.

Abila v Minister for Immigration & Multicultural Affairs [2002] FCAFC 15 (1

Abila v Minister for Immigration & Multicultural Affairs [2002] FCAFC 15 (13 February 2002)
Last Updated: 24 February 2003


Abila v Minister for Immigration & Multicultural Affairs [2002] FCAFC 15
Abila v Minister for Immigration & Multicultural Affairs [2002] FCA 110



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
Abila v Minister for Immigration & Multicultural Affairs

[2002] FCA 110


PAUL ABILA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

No. W 399 of 2001

DRUMMOND, MANSFIELD & EMMETT JJ

13 FEBRUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY
W 399 OF 2001



ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
PAUL ABILA

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT


JUDGES:
DRUMMOND, MANSFIELD & EMMETT JJ


DATE OF ORDER:
13 FEBRUARY 2002


WHERE MADE:
PERTH




THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay to the respondent costs of the appeal.

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 399 OF 2001



ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
PAUL ABILA

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT




JUDGES:
DRUMMOND, MANSFIELD & EMMETT JJ


DATE:
13 FEBRUARY 2002


PLACE:
PERTH





REASONS FOR JUDGMENT
DRUMMOND J:

1 I agree with the orders proposed by Mansfield J and with his reasons.

MANSFIELD J:

2 The appellant claims to be a 19 year old citizen of Uganda. He arrived in Australia on 13 May 2000 after stowing away on a marine tanker from the port of Mombassa in Kenya. On 3 July 2000 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act) on the ground that if he is returned to Uganda he will be persecuted for reasons of his race. A delegate of the respondent refused that application on 12 February 2001. On 26 April 2001 the Refugee Review Tribunal (the Tribunal) affirmed that decision. The appellant applied for judicial review of the Tribunal's decision. On 28 August 2001 Tamberlin J dismissed his application. This is an appeal from the judgment of Tamberlin J.

3 As the appellant's application for review was made to the Court prior to 2 October 2001, references to the Act are references to the Act as it stood before it was amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) effective from 2 October 2001.

THE TRIBUNAL'S DECISION

4 The appellant claimed to have been born in the village of Sondo near the city of Jinja in Uganda. He claimed to be of Nubian ethnicity and a native speaker of Mnubi and Swahili. He claimed that in 1996 guerilla fighters attacked his village and took his father because they thought he supported the government. He told the Tribunal that he has not seen his father since and that he believed the guerillas had killed his father. He further claimed that in late 1997 guerillas once again attacked his village, killing people and burning homes, including his own. He said that his mother ran away from the village in the attack, and that while the attack continued he fled to the border and crossed illegally into Kenya. He was then aged 14 or 15. He stayed in Kenya until he hid on a vessel which arrived in Australia. The appellant claimed that the 1996 and 1997 events caused him to flee Uganda, and that he feared persecution by guerilla forces in Uganda should he return to Uganda. He said that the government would be unable to protect him, as it had been unable to protect his father.

5 With apparent hesitation, the Tribunal was prepared to accept that the appellant is from Uganda. However, it rejected his claims to be a refugee. Firstly, it did not accept that the incidents in 1996 and 1997 occurred as he claimed, or that his father was taken by rebel guerillas, or that his mother was lost to him as everyone ran away from the village in the 1997 attack. It reached this conclusion after consideration of independent country information about Uganda. Its reasoning is encapsulated in the following passage:

"Independent information is that there have been violent rebel groups operating in Uganda for many years. But there is nothing to indicate that attacks such as those the applicant described have occurred in the area he claims to be from, that is Jinja, only about seventy kilometres east of the capital Kampala at the time he has claimed. Rebel activity occurs in the north, west and south west and there are no reports of such activity as the applicant described in the south eastern part of the country where he claims to have lived: the only report about rebel activity in the south east concerned the bomb blasts in Kampala in 1999. There is no information of which I am aware to support the applicant's suggestion that such incidents as that which he claimed occurred in his village would not have been reported: the evidence indicates that freedom of the press is generally respected in Uganda and I do not accept that there have been constraints on the reporting of rebel violence. Such activity, which the applicant's evidence indicated was not an isolated attack and which was very brutal, in Jinja would have been a major concern for the government and it would have led both to a significant deployment of security forces, such as has occurred in other areas in which rebels are active, as well as to reporting of associated events. I consider that such activity would have come to the attention of international observers which have reported on incidents in other parts of the country."
6 Consequently, as the appellant did not come from those parts of Uganda where the rebel groups operated, and there is no reason why he would go to those dangerous areas if he returned, the Tribunal considered that he presently faces no real chance of being attacked by such groups if he returns to Uganda. The appellant claimed at the hearing that there was rebel activity in the area where he comes from, but the Tribunal identified material upon which it relied, and upon which it was entitled to rely, to reach the view which it expressed. The Tribunal also considered, and rejected, the possibility that the area of activities of those rebel groups might extend into the area where the appellant comes from.

7 In addition, the Tribunal did not accept that the appellant's Nubian ethnicity would lead him to face persecution if he were to return to Uganda. The evidence of the appellant was that the events which he claimed to have happened in 1996 and 1997 "could have happened to anyone who had been there". There was no other material before the Tribunal to suggest that Nubi people in Uganda were the target of discrimination or mistreatment. The Tribunal therefore concluded that any fear of mistreatment on the appellant's behalf could not be said to be for a Convention reason in any event.

8 The Tribunal, in the light of those findings, did not need to address whether the appellant could secure effective protection in Kenya, where he lived in excess of two years before stowing away to Australia.

THE APPLICATION TO THE PRIMARY JUDGE

9 On the application before Tamberlin J, the appellant had the assistance of written submissions from senior counsel. The submissions identified two possible grounds of review. The first was based upon s 476(1)(g) and s 476(4)(b) of the Act. It concerned the Tribunal's rejection of the appellant's claims that the 1996 and 1997 events occurred. Tamberlin J summarised this submission in [8] of his reasons as follows:

"The substance of the submissions was that there was no evidence to justify the RRT's conclusion that the applicant's father was not taken by guerilla forces in 1996 and never seen again, presumed killed, and that the applicant's village was not attacked in 1997 by guerillas, who killed people and burnt houses, including his family's house. It was also said that an absence of evidence of a limited kind concerning a fact is not logically capable of establishing that the fact did not occur: Charaev v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 554 at [21]. It was submitted that the RRT made the findings because it concluded that it had obtained no published information which suggested that guerilla activity had occurred in the area of the applicant's village and that the absence of such published information could not possibly justify the findings made. It was said that the RRT did not reject the applicant's own evidence as incredible and recognised that apart from the main rebel groups in Uganda, other small groups emerged from time to time."
10 Tamberlin J rejected this submission. After an extensive review of decisions of the Court touching upon the question, his Honour concluded that s 476(1)(g) and s 476(4)(b), as a matter of construction, could not apply where the decision is based on the non-existence of a particular fact rather than on the existence of the fact. As the complaint of the appellant was about the findings of the Tribunal that particular facts did not exist, namely that the 1996 and 1997 attacks had not occurred, the appellant could not bring his attack within s 476(1)(g) of the Act so as to succeed on the no evidence ground.

11 Moreover, as his Honour noted, there was evidence from which the non-existence of the events of 1996 and 1997 could be inferred. That evidence was in part that freedom of the press was generally respected in Uganda, so that publicity of such events as the appellant alleged would be unlikely to be suppressed. Also, as those claimed events were not isolated events, the independent country information indicated that the government would have made a significant deployment of security forces to the area, and then those matters would have come to the attention of international observers. The extensive reports of guerilla activity in other parts of Uganda, and the absence of any reports of guerilla activity in the appellant's area, in the circumstances provided an evidentiary foundation for the Tribunal's conclusion.

12 Finally, on this aspect of the case, his Honour observed that on the appellant's own evidence neither he nor his family were targeted by reason of his Nubian race or any other Convention reason, so the Tribunal could properly conclude that those claimed incidents provided no foundation for a well-founded fear of persecution under the Refugees Convention.

13 The appellant's second submission was that the Tribunal erred in concluding that he did not have a well-founded fear of persecution for reasons of race or membership of a particular social group, identified as "those opposed to or unwilling to participate in guerilla activity".

14 Tamberlin J rejected this submission at [30]:

"...this description does nor [sic] delineate any social group within the meaning of the definition of a "refugee". It does not designate a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. Nor can a common fear of persecution on its own amount to a relevant description of a particular social group".
15 In so finding, his Honour relied on the reasoning in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 in which McHugh J said (at 241) that the term "membership" in conjunction with "particular social group" denoted a group "perceived by people in the relevant country as a particular social group". Tamberlin J held (at par [32]) that the description of the particular social group proffered by the appellant did not satisfy the criteria in Applicant A:

"Opposition or unwillingness to participate in guerilla activity might arise for a great variety of different reasons, such as disagreement with the objectives of that activity, family concerns, religious beliefs, personal convenience, fear, infirmity, inability or ill health, to mention just a few. It cannot be said that there is any common unifying or internal connection between members of a group so described in the context of the Refugees Convention as amended by the Refugees Protocol which defines "refugee".
16 In addition, his Honour concluded at [28] that the appellant's evidence to the Tribunal that the incidents he claimed occurred in 1996 and 1997 "could have happened to anyone who was there" precluded him from claiming that the persecution he feared in Uganda was for reasons of his Nubian ethnicity. Accordingly, the fear of persecution, even if well-founded, was not for the Convention reason of the appellant's race or his membership of a particular social group.

17 For these reasons, Tamberlin J was not satisfied that any reviewable error was disclosed in the Tribunal's reasons for decision. He dismissed the application.

THE APPEAL

18 In his notice of appeal, which was filed by him in person, the appellant claims:

"There was no evidence or other material to justify [sic] by the making of the decision that the applicant did not have a well-founded fear of persecution by reason of his gorilla [sic] activity, real or imported. The possibility of just disappearing is a danger of a returned [asylum] seeker in Uganda."

That ground of review engages s 476(1)(g) as explained and limited by s 476(4)(b) of the Act. Those provisions are in the following terms:

(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
...

(g) that there was no evidence or other material to justify the making of the decision.

(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

...

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

19 The appellant's contention sought to challenge the Tribunal's finding that events said by him to have occurred in Uganda in 1996 and 1997 did not in fact occur on the basis that there was no evidence on which the Tribunal could base its finding that those events did not occur and that the non-existence of those facts did not exist.

20 The short answer to that contention is that, as Tamberlin J found, there was evidence from which the Tribunal could infer that the claimed attacks in 1996 and 1997 did not occur. That evidence is referred to at [11] above. The circumstance which was addressed in the case of Charaev v Minister for Immigration & Multicultural Affairs (2000) 178 ALR 554, where the absence of evidence of a limited kind concerning a fact was found not to be logically capable of establishing that it did not occur, does not arise. Moreover, the appellant did not attribute to the perpetrators of those claimed attacks any motive related to a Convention reason, in particular that they occurred by reason of the Nubian race of the victims. As the Tribunal concluded, even if those events occurred, they could not give rise to a well-founded fear of persecution for a Convention reason. That is sufficient to dispose of the appeal.

21 In that circumstance, it is not necessary to address the proposition that the "no evidence" ground of review in s 476(1)(g) of the Act is not available where the Tribunal has found that a particular fact did not exist. The appellant raised no other matters to demonstrate error on the part of the learned judge at first instance. As noted earlier, he claimed at the hearing that there was rebel activity in the area where he comes from, but the material upon which the Tribunal relied to reach an opposite conclusion was identified by it and no error of law is shown by the Tribunal in relying upon that material. The appellant did not seek to challenge the decision rejecting his claim to be a member of a particular social group, namely "those opposed to or unwilling to participate in guerilla activity".

22 For those reasons I consider that no error has been shown in the decision appealed from and the appeal should be dismissed. The appellant should pay to the respondent costs of the appeal.

EMMETT J:

23 I agree with the reasons given by my brother Mansfield that the appeal should be dismissed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond, the Honourable Justice Mansfield & the Honourable Justice Emmett.




Associate:

Dated: 15 February 2002

Counsel for the Appellant:
The appellant appeared in person.






Counsel for the Respondent:
Mr M Ritter






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
13 February 2002






Date of Judgment:
13 February 2002


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