Mateus Calado v Minister for Immigration & Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

MIGRATION - application for review of decision of Refugee Review Tribunal that the applicant is not a refugee - claim of persecution on the ground of race - whether error of law in relation to the interpretation of the term "race" - consideration of race and language - whether failure to act according to substantial justice and the merits of the case.

TAMBERLIN J

SYDNEY

19 DECEMBER 1997

THE COURT ORDERS THAT:

1.   The decision of the Refugee Review Tribunal on the question of persecution on the ground of race be set aside.

2.   The matter be remitted to the Refugee Review Tribunal for determination in accordance with law on the question of persecution on the ground of race.

3.   The respondent pay the applicant's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

The applicant seeks review of a decision of the Refugee Review Tribunal ("RRT") of 4 September 1997, which affirmed a decision of a Ministerial delegate refusing a protection visa. The RRT decided that the applicant was not a refugee and, therefore, was not a person to whom Australia has protection obligations.

The term "refugee" is defined in Article 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") as a person who:

"...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country...."

The applicant is a thirty-three year old male who claims to be from Angola and who arrived in Australia on 4 April 1997. He claimed to be a refugee on the basis that he would be persecuted if returned to Angola. The claimed grounds of persecution were race (that he belonged to the Bakongo, an ethnic group within Angola); religion (that he was a Jehovah's Witness); and political opinion. The RRT was not satisfied that any of these three grounds had been made out.

At the outset it should be pointed out that the RRT concluded the applicant lacked credibility. The reasons are set out in its decision but in summary they include the inconsistency of the applicant's testimony with country intelligence and information; inconsistency in his recounting on arrival at the airport of his reasons as to when and in what circumstances he left Angola; how and when he came to Australia; the failure to mention religion as a ground at the airport; the failure to mention race as a ground at the airport; his lack of knowledge of the religious teaching and tenets of the Jehovah's Witnesses faith; and the inconsistencies in his membership of a political group yet claiming to be a Bakongo who was in danger of persecution because of his race.

There was ample material, in my view, for the RRT to reach the conclusion as to his general lack of credibility.

The application for review was filed on 22 September 1997. The grounds of the application for review are expressed as follows:

"1. PROCEDURES THAT WERE REQUIRED BY THE MIGRATION ACT TO BE OBSERVED IN CONNECTION WITH THE MAKING OF THE DECISION WERE NOT OBSERVED.

2. THE DECISION INVOLVED AN ERROR LAW, BING (sic) AN ERROR OF LAW INVOLVING AN INCORRECT INTERPRETATION OF APPLICATION OF LAW OR AN IMPROPER APPLICATION OF THE LAW TO THE FACT AS FOUND BY THE DECISION MAKER.

3. OMISSION OR ERROR IN DATE CANNOT BE PERFECTED.

4. ABOUT MY RELIGIOUS CLAIMS, THE DECISION MAKER WANT TO DENEID (sic) ME THE RIGHT OF MY RELIGIOUS PRACTICE WHICH I SOLEMNLY BELIVE (sic) ON AND WHICH STILL REMAIN MY RELIGION EVEN HERE IN DETENTION CENTRE. SO I HAVE SEEN NO GENIUNE (sic) REASON WHY I WAS REFUSE ON THIS CLAIM.

5. I WAS SERIOUSLY DISTURB WHEN I LEARNT FROM THE DECISION MAKER THAT I AM NOT FROM THE BAKONGO TRIBE AND THAT SIMPLY BECAUSE I SPEAK PORTUGUES (sic) THAT DOES NOT QUALIFY ME TO HAVE COME FROM ANGOLA WHICH IS UNBELIVABLE (sic) AND I CANNOT ACCEPT THAT."

In relation to the claims based on religion and political opinion I am not persuaded that any reviewable error has been made out. I am satisfied that it was open to the RRT to reach the conclusions which it did on those matters.

In relation to the Convention ground based on persecution for reasons of race, however, the decision of the RRT calls for closer examination.

Race and language

The relevant section of the reasoning in relation to the claim based on race reads:

"The Applicant also made a claim on the ground of his race, that is, as a Bakongo, he would be at differential risk in Angola. He said that in 1993, he was injured when MPLA `armed people' to massacre Bakongos. The Tribunal notes that Amnesty International; (`Angola- From war to ... what? No reconciliation without accountability', Amnesty International, 1995), reported the January 1993 killings and other abuses of people belonging to the Bakongo ethnic group which took place in Luanda and other areas, as following reports that `Zairian mercenaries had assisted UNITA in its attack on Soyo and that a Bakongo commando was in Luanda to assassinate President dos Santos'. The Tribunal also notes that there are about 1,300,000 Bakongo in Angola, about 25% of the total population. They are the third largest ethnic group in the country, and the distinguishing factor about Bakongos is the language they speak. The Tribunal notes that the Applicant did not make this claim at the airport interview. The Tribunal has noted above that this claim to be Bakongo would appear at odds with his alleged claim to have been a member of the JMPLA. The Applicant speaks Portuguese which is not a particularly distinguishing feature of Bakongos: opinion from Professor Cherry Gertzel, provided to the Tribunal on 26 August 1997.

Having regard to those matters, and in the light of the general lack of credibility of the Applicant, the Tribunal is not satisfied that the Applicant is a Bakongo.

After considering all the evidence, the Tribunal is not satisfied that the Applicant has a well-founded fear of return to Angola on a Convention ground." (Emphasis added)

Ultimately, the RRT was not satisfied that the applicant was a Bakongo. In the passage quoted above the RRT appears to accept that Bakongos have been killed and abused in 1993 in Luanda and elsewhere and that a Bakongo commando was stated to have had plans to attack the President. Reliance is placed on the 1995 the Amnesty International report.

In order to consider the above passages in perspective, it is necessary to bear in mind the earlier material relating to race which is set out in the decision under review. That material reads as follows:

"Race

Johnston, Patrick, Operation World, 1993, Crossroad Distributors, at page 91, states that there are about 1,300,000 Bakongo in Angola and they are the third largest ethnic group in the country.

`Angola-From war to ...what? No reconciliation without accountability', Amnesty International, 1995, reports that in January 1993 killings and other abuses took place in Luanda and other areas of people belonging to the Bakongo ethnic group, which spans `northern Angola and southern Zaire' the killings followed reports that Zairian mercenaries had assisted UNITA in its attack on Soyo and that a Bakongo commando was in Luanda to assassinate President dos Santos'.

`Angola: a) information about a Tela Matan da Simao, an FNLA leader in Luanda, reportedly killed in Luanda by the MPLA after the September 1992 elections b) information about FNLA members being targeted for persecution following the 1992 elections'. IBRDC, AGO10-5 December 1994, page 2, reports human rights violations against the Bakongo people, based on their ethnicity. These violent attacks appeared to have occurred because the Bakongo were identified as Zairians, who were perceived as colluding with UNITA during the fighting in 1993.

`Angola: AGO19091.F of 1 December 1994, information on the treatment of the Bakongo by the Kimbundu', DIRB, 15 October 1996, states

`According to Encyclopedia of the Third World, the Bakongo are located in northwest Angola and make up 25 per cent of the population (1992, 41)... According to 6 November 1994, Los Angeles Times report, the Kimbundu support the Popular Movement for the Liberation of Angola (MPLA), while the Bakongo support the National Front for the Liberation of Angola (FNLA). This source states that there is a deep enmity among Angolans based on ethnicity and ideology (ibid).

A 7 August 1994 The Dallas Morning News report attributes these tribal animosities to the legacy of slavery: "The Ovimbundi tribe, in Huambo and the rest of the central highlands, fought the Kimbundu tribe on the coast. They fought the smaller Bakongo and Luanda groups in the north. The divisions continue today and help explain why Angola's battle goes on." (ibid).

A 20 May 1994 St Louis Post-Dispatch states that `Jonas Savimbi's, leader of the National Union for the Total Liberation of Angola (UNITA), unwillingness to accept the results of the democratic elections of September 1992 led to the renewal of the 16-year-old civil war that has pitted his Ovimbundu followers (Bakongo allies) against their Kimbundu and mixed-race compatriots.' (ibid)'.

`Zaire: Information on whether the Bakongo are one of the tribes established within the 1 August 1885 territorial limits of Zaire, particularly with reference to article 4, section II of Law No 81-002 of 29 June 1981 concerning Zairian nationality', ZAR25990.E, 31 January 1997, states,

`The New Encyclopaedia Britannica describes the Bakongo or Kongo as a group of Bantu-speaking people who live in Zaire, Angola and Congo (1989, 947). Africa on a Shoestring indicates that the Kongo kingdom was one of the great kingdoms to have emerged by the end of the 14th century....'

An opinion from Professor Cherry Gertzel, provided the Tribunal on 26 August 1997, states,

`The Bakongo peoples ...[all speak] the Kongo language... Language being a crucial source of identity and one of the most important means of distinguishing people ...'"

At the hearing before me the applicant, who was not represented, spoke in English. He appeared to have a limited capacity to communicate in English. He says that he is not fluent in English and I accept that. However, I accept that he is fluent in Portuguese. A Portuguese interpreter was made available to him throughout the hearing before me, but he refused to use her services or speak in Portuguese to communicate with the Court. He had used that language before the RRT. There is substantial evidence that he is able to converse with apparent fluency in that language.

Prior to the hearing the applicant had requested an interpreter skilled in the Bakongo language which is spoken in the north-eastern sector of Angola. It is a language spoken by the Bakongo people. No such interpreter was available although efforts were made to obtain one. I am satisfied, however, that from a linguistic viewpoint, the applicant was not in any way disadvantaged because he had throughout the hearing before me, an opportunity to make his views known to the Court through the Portuguese interpreter. He also communicated reasonably well in English although I would not regard him as fluent in English or able to deal with difficult concepts in that language.

I think it is probable that the applicant did not want to speak Portuguese at the hearing before me because he perceived that he had failed before the RRT, at least partly, because he had presented his case in Portuguese and demonstrated a fluency in that language. The RRT had, as is evident from the above quotation, referred to his speaking Portuguese on a number of occasions in its reasons. The most significant reference by the RRT is to Portuguese not being "a particularly distinguishing feature of Bakongos."

Whatever the applicant's reasons for not availing himself of the interpreter in the hearing before me, the fact is that he was concerned, to say the least, about the perceived way in which his familiarity with that language had disadvantaged him in the eyes of the RRT.

The gravamen of his complaint, as I understand it, is that the RRT erred in not accepting that he belonged to the Bakongo ethno-linguistic group because he spoke Portuguese. This complaint calls for a conclusion, based on a fair and reasonable interpretation of the RRT decision, as to the way in which and grounds on which the RRT rejected the claim that he was a Bakongo.

As Counsel for the Minister points out, there are throughout the reasons for decision a number of references in the material before the RRT, and in the records of the RRT, to the Bakongo language and to Portuguese. These include references to the applicant being saved from beating and massacre because he spoke Portuguese and to him conversing in Portuguese whilst in Angola. In his request for a hearing of 8 July 1997, the applicant filled in the box relating to Language by inserting the word "Portuguese" and in the Dialect box with a reference to "Kikongo". In his application for review received on 13 June 1997 he referred to his "language" as Portuguese. In his airport interview he referred to his language as Portuguese and his dialect as Kikongo. These references indicate that the applicant has consistently stated, since his arrival, that Kikongo is one of his dialects, which I take to mean languages. The language referred to as Kikongo is the language of the ethno-linguistic group known as the Bakongo. This group appears to be alternatively known as Quicongo. The description "Quicongo" clearly is phonetically identical with the reference to "Kikongo" which I take to be the language of the Bakongo community.

On an application for review, the reasons of the RRT must be considered fairly and reasonably as a whole and not with any predisposition to seek out error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

The references in the definition of "refugee" to race, religion, nationality and social groups are not discrete, independent categories but rather they overlap. In some circumstances persons of the same race may also form an independent social community or have the same nationality. A common language may be a feature of such communities or groups. As Hathaway points out in The Law of Refugee Status, 1991 at pp 144-145:

"In addition to notions of formal nationality, it is generally suggested that nationality encompasses linguistic groups and other culturally defined collectivities, thus overlapping to a significant extent with the concept of race. Because many such groups share a sense of political community distinct from that of the nation state, their claims to refugee protection may reasonably be determined on the basis of nationality as well as on race."

When considering the meaning of the expression "race" in a case such as the present, it is appropriate to take into account the "popular" understanding of the term which accords importance to physical appearance, skin colour and ethnic origin. There can be no single test for the meaning of the expression "race" but the term connotes considerations such as whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of colour, and national or ethnic origins. Another consideration is whether the characteristics of members of the group are those with which a person is born and which he or she cannot change. These questions are discussed by Brennan J in The Commonwealth v Tasmania (1983)158 CLR 1 at 243-244. At the latter page his Honour said:

"As the people of a group identify themselves and are identified by others as a race by reference to their common history, religion, spiritual beliefs or culture as well as by reference to their biological origins and physical similarities, an indication is given of the scope and purpose of the power granted by par (xxvi). The kinds of benefits that laws might properly confer upon people as members of a race are benefits which tend to protect or foster their common intangible heritage or their common sense of identity. Their genetic inheritance is fixed at birth; the historic, religious, spiritual and cultural heritage are acquired and are susceptible to influences for which a law may provide. The advancement of the people of any race in any of these aspects of their group life falls within the power."

In that case his Honour was concerned with the meaning of the expression "race" in the Australian Constitution which in par (xxvi) confers power on the Commonwealth parliament to make special laws for the people of any race. Of course, in interpreting the conferral of a constitutional power it is appropriate that the term should be given a liberal and practical interpretation. In my view, a similar approach should be taken in considering the Convention in the present case. In the course of his discussion of "race", Brennan J referred to UNESCO studies on race and racial discrimination which indicate the difficulties of giving any precise definition to the term. The native language of individuals, in my view, is clearly an important part of the cultural heritage and group identification of that person. In the present case it is evident that the appropriate language for consideration of the persecution question is the native language spoken by the Bakongo.

In considering the subjects of language and race the RRT reasoning proceeds as follows: There was a massacre of Bakongos in 1993. They are said to be 25% of the total population and constitute the third largest ethnic group. They are distinguished by the language they speak which, on the evidence, can be described as Kikongo. The RRT noted that the applicant at the airport interview did not make a claim of racial persecution on the ground that he was a Bakongo. The claim to be a Bakongo was inconsistent with his claim to have been a member of the youth wing of the Popular Movement for the Liberation of Angola ("JMPLA"). I interpolate that the applicant had said that, in 1993, he was injured when the MPLA armed people to massacre Bakongos. This appeared to the RRT to be inconsistent with his claim that he was a Bakongo and a member of the youth wing of the MPLA. The RRT then noted that he spoke Portuguese and commented that this fact was not "a particularly distinguishing" feature of Bakongos. There is then a reference to Professor Gertzel's statement. Immediately following that observation is the conclusion that:

"Having regard to those matters, and in the light of the general lack of credibility of the Applicant, the Tribunal is not satisfied that the applicant is a Bakongo." (Emphasis added)

In my view, this approach discloses an error of law in relation to the interpretation of the term "race" as used in the Convention. At a critical point in the reasoning, the RRT, in my view, has referred to fluency in Portuguese as being an important indication that the applicant is not of the Bakongo community. It must of course be pointed out that what is asserted in that observation, namely that the applicant speaks Portuguese "which is not a particularly distinguishing feature of Bakongos", is literally correct. But reading the paragraph as a whole, in the light of the earlier material concerning race, and the acceptance by the RRT that the distinguishing factor of a Bakongo is language, in my view, the passage reflects an approach which is wrong in law to the important question as to whether he is a Bakongo.

Because a person speaks Portuguese, it does not necessarily follow that the person is somehow excluded from being a Bakongo. Portuguese is, after all, the official language of Angola. The evidence indicates, but no finding is made, that the applicant speaks Kikongo. The fact that he also speaks Portuguese does not weaken his claim to belong to the Bakongo community. A central question, which is not addressed in the reasons, is whether the applicant speaks the Bakongo language. If it were decided that the applicant speaks Kikongo, on the criteria accepted by the RRT, this fact would lend support to his claim to be a Bakongo. Such a finding would be in accordance with the view of Professor Gertzel as to the importance of language in distinguishing Bakongos.

As a broad parallel one might take the plight of members of the Jewish community in Germany sixty years ago. Many, if not all, no doubt spoke German. That circumstance, however, would not lessen the Jewish identity of German-speaking members of the community. On the other hand, the fact that many members of the Jewish community might speak Yiddish or Hebrew could and no doubt did serve as a discrimen for persecution because speaking these languages could indicate that a person was a member of the Jewish community.

On my reading of the reasons, the forgoing erroneous approach was adopted in the present case.

The line of reasoning adopted, by the RRT discloses an error of law in that it indicates a conclusion that speaking Portuguese, the official language of Angola, supports a finding that the person was not a Bakongo. When this is coupled with the omission to consider the determining factor, according to Professor Gertzel, namely whether the applicant spoke Bakongo, the error in approach is compounded.

In response to the above matters the Minister submits that the fact that the applicant was able to speak Portuguese was a matter which, along with other considerations could properly be taken into account in deciding the race question. It was really a matter of the weight to be given to this consideration and this was for the RRT, not the Court, to decide. The Minister says that on a fair reading of the decision, the issue of language is far from determinative and is simply one of a number of matters to which the RRT was entitled to, and did, take into account, to decide whether the applicant was a Bakongo. The other relevant matters taken into account, were his omission to make the claim of racial persecution at the airport interview, the fact that his claim appeared to be at odds with his claim to be a member of the JMPLA, and his general lack of credibility.

Whilst I recognise the force of these submissions it is apparent that fluency in Portuguese was given considerable importance and was not treated as simply marginal or peripheral. In my view, the reference to Portuguese, in the final paragraphs, and the cross-reference to the evidence of Professor Gertzel, indicate that it played a significant part in the ultimate decision. Cf McPhee v Minister for Immigration, Local Government and Ethnic Affairs (1988) 16 ALD 77 at 80, and Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 135.

It may of course be that the question whether a person speaks Portuguese in Angola is relevant as to whether such person is likely in fact to be the subject of persecution. For example, if there was evidence of a general tolerance or liberality towards Portuguese speaking Bakongos. But that is not the way in which the applicant's fluency in Portuguese was considered in the present case.

The fact that other relevant and important matters were also taken into account, does not, in my view detract from the operative effect of the erroneous approach to the question of identity as a Bakongo and therefore to racial persecution.

The approach taken by the RRT on the claim based on race therefore, in my view, disclosed an error of law involving an incorrect interpretation of the applicable law. The error is to be found in considering the applicant's fluency in Portuguese supported the final determination that he was not a Bakongo. In addition, the question whether the applicant in fact spoke Bakongo was not addressed. The reasons only address the question whether the applicant spoke Portuguese. The former was the critical question which had to be resolved in view of the apparent acceptance of the opinion of Professor Gertzel as to language being the distinguishing factor of a Bakongo.

For these reasons I am satisfied that an error of legal interpretation has been made out under s476(1)(e) of the Migration Act 1958 (Cth). Furthermore, I consider that the RRT did not act according to substantial justice and the merits of the case in relation to the race claim because of the approach it adopted to the applicant's ability to speak Portuguese. The consequence is also that there was a failure to comply with the requirements of s 420 (2)(b) of the Act. Therefore, there was a failure to observe a procedure required by the Act. In reaching this further conclusion, I am aware that the Full Court decision in Eshetu v Minister for Immigration and Ethnic Affairs (1997) 71 FCR 300, on which I base the above view, is the subject of a special leave application to the High Court. However, notwithstanding the submissions on behalf of the Minister, I am not persuaded that the decision in that case is distinguishable or ought not to be followed in the present case.

Accordingly, I allow the application. I set aside the decision of the RRT insofar as it relates to the claim based on persecution because of race. I remit the matter to the RRT for redetermination in accordance with law on the question of persecution in relation to race. I order that the respondent pay the applicant's costs.