FEDERAL COURT OF AUSTRALIA

Applicant G v Minister for Immigration & Multicultural Affairs

[1999] FCA 1035

APPLICANT G v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 179 of 1999

HILL J

15 JUNE 1999

SYDNEY

THE COURT ORDERS THAT:

1.                  The name of the applicant in the present proceedings be kept confidential, not to be disclosed to any person other than the parties to the proceedings, the legal advisers or those present in Court today.

2.                  The proceedings henceforth be denominated as Applicant G against the Minister for Immigration and Multicultural Affairs (“the Minister”).

3.                  Give leave to the applicant to amend the application for an Order of Review in the form which I have initialled and dated and which will be placed with the papers.

4.                  The applicant be dismissed.

5.                  The applicant pay the respondent’s costs.

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

EX TEMPORE REASONS FOR JUDGMENT

1                     The applicant is a citizen of Algeria.  He applied for a protection visa which was refused by a delegate of the respondent Minister and, in consequence, applied to the Refugee Review Tribunal ("the Tribunal") to review the delegate's decision.  The Tribunal refused the application for review and affirmed the decision of the delegate.  It did so for two reasons.  First, it found that the applicant did not have a well-founded fear of persecution as those words are used in the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).  Having so found the Tribunal then said that, even if it had reached an incorrect result, it was satisfied that the applicant could access effective protection in a third country, Syria. 

2                     The appeal to this Court is an application in the original jurisdiction of the Court for judicial review, albeit on limited grounds, of the decision of the Tribunal.  The applicant seeks to challenge both aspects of the Tribunal's reasons. 

3                     In support of the interesting argument that is put in respect of the second matter, the applicant’s counsel sought to tender material that, in part, was not before the Tribunal.  That tender was objected to by counsel for the respondent Minister.  I think there is some difficulty in the tender of the material being accepted but, having regard to the view that I propose to take on the second matter, the material sought to be tendered becomes irrelevant.  However, in the event that the matter were to proceed to an appeal, I would mark the material for identification MFI1. 

4                     The arguments on the second issue centred around the question whether the applicant would be afforded effective protection in Syria and accordingly become a person to whom Australia did not have protection obligations under the Convention.

5                     There have been a series of cases in this Court which have considered to some extent at least, the provisions of articles 31 and 33 of the Convention.  It is unnecessary for me to canvass those cases here.  Quite recently Katz J in this Court, decided Al-Sallal v the Minister for Immigration and Multicultural Affairs [1999] FCA 369.  In an interesting judgment, his Honour concluded that effective protection could not be relied upon except where the country in question is a party to the Convention.  That to some extent might be thought to be at odds with other cases but it is clear that the other cases were not cases in which the matter had been argued and, so far as I am aware, Al-Sallal was the first case to consider in a detailed way the question of article 33 of the Convention. 

6                     It is a principle of comity that a judge of this Court should follow decisions of other judges involving the same subject matter unless the decisions are clearly wrong.  In my view it cannot be said that Justice Katz's decision was clearly wrong.  It is the subject of appeal to a Full Court of this Court but I do not think that his Honour's reasons demonstrate any clear error of law although one can understand there may be some practical implications arising out of his Honour's judgment which require the consideration of an appellate court.  I am, however, prepared for present purposes to accept the proposition that the Tribunal erred in the second of the matters before it. 

7                     While no doubt Australia has no protection obligations to a person who is able to reside in a third country, assuming at least that country is a member of the Convention as Katz J suggests so that it is unnecessary in such a case to consider whether that person is a refugee, the opposite is not the case.  Quite clearly it is necessary for me to consider whether the Tribunal erred in law in reaching the conclusion that the applicant did not have a well-founded fear of persecution and for that reason the Tribunal was not satisfied that he was a person to whom Australia had a Convention obligation.

8                     Counsel for the applicant submitted that it was part of the applicant’s case before the Tribunal that he was an Imam and for that reason had a well-founded fear of persecution.  It was submitted that the Tribunal erred in not dealing with that claim or the documents which the applicant had referred to in support of it.  The ground of review relied upon is either that there was a constructive failure of jurisdiction on the part of the Tribunal or that the Tribunal failed to consider a claim advanced to it or that the Tribunal failed to set out findings of facts on a material matter and thus erred in law. 

9                     It does not really matter which way the error of law is expressed.  The Tribunal commits an error of law if it fails to deal with a material matter that has been put to it:  Sellamuthu v Minister for Immigration and Multicultural Affairs, Full Court, Wilcox, Hill and Madgwick JJ, [1999] FCA 247 and see also Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe (1999) 162 ALR 1, particularly paragraphs 192, 193 and 199.

10                  To consider the submissions it is necessary to consider in more detail the Tribunal's reasons.  At the outset of its reasons the Tribunal notes the submission which counsel for the applicant submits it did not consider.  For example, the Tribunal refers to the independent evidence on which the applicant relied to the effect that Imams, like the applicant, were at risk in Algeria from one side or the other.

11                  There are similar references to the submission at p 12 of the Tribunal's reasons (107 of the appeal papers).  It is fair to say that despite these references the Tribunal does not directly embark upon any detailed consideration of the submission.  At p 18 of the reasons (113 of the appeal papers) the Tribunal said:

“I have noted the submission from the applicant's legal adviser that Imams, or religious figures in Algeria, are prone to pressure from the police or the radical Islamic groups.  I find, however, that this was not the case with the applicant.”

12                  It is submitted that this passage too demonstrates an error of law in that clearly a person could have a well-founded fear of persecution notwithstanding that nothing had happened to him in the past. The fact that the applicant himself had not been subject to pressure would hardly be conclusive of the question whether he had a well-founded fear of persecution.

13                  The Tribunal then proceeded to consider evidence that was before it to the effect that various people had profiles which might attract the adverse interests of the Islamic fundamentalists.  It concluded that the applicant did not fit the profile.  There is no reference in the profile to Imams - and again, it is submitted that this demonstrates the failure on the part of the Tribunal to deal with the fundamental question, whether his fear of persecution was well-founded because he was an Imam. 

14                  However, the Tribunal's conclusion that the applicant did not have a well-founded fear of persecution was based on another matter.  First, the applicant had stayed in Syria notwithstanding that, according to him, the Syrian Government might have sent him back to Algeria, at least after he had completed a second degree in July 1997.  Second, the Tribunal noted that he had applied for but then abandoned an application for refugee status in South Africa.  This, according to the Tribunal, demonstrated that any fear of persecution he had was not genuine. 

15                  Third, between 1987 and 1997, when at least for most of the time the applicant was in Syria, he travelled to Algeria and stayed there for periods of a month or so.  He made, after his studies, trips to Algeria.  Fourth he was content to return to Algeria in 1995 to get married, return again in November 1996 and to send his wife back to Algeria in September 1997.  His wife and son have lived there since that time and no problems have been encountered by his wife, stemming from the fact that the applicant was an Imam.

16                  Finally, the Tribunal relied upon the fact that it did not believe evidence which the applicant had proffered concerning an incident involving a person by the name of Mohamid, who on the one hand was said to have attended the applicant's wedding but, on the other hand, was said not to be known to the applicant.  From this incident the applicant said that he had a well-founded fear.  The Tribunal rejected the applicant's account of this incident, seeing it as one upon which:

“The applicant’s claim to fear returning to Algeria ... essentially [rested].”

17                  These matters led to the conclusion that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution.  It is common ground between the parties that the words, “well-founded fear of persecution” import both a subjective and objective element.  For a person to have a well-founded fear of persecution that person must fear persecution on a Convention ground and in circumstances where that fear was itself objectively well founded.  Although the Tribunal’s reasons may be criticised perhaps, for not being as explicit as they might be, one must always remember that it is not for this Court to approach an application for judicial review overly critically or seeking out error where none exists.

18                  I think that the Tribunal's conclusion really turned upon a finding by it that the applicant himself was not in fear.  So much really follows from the Tribunal regarding the giving up of the South African application as a relevant matter.  That explains also the significance the Tribunal put upon the fact that nothing had happened to the applicant in the numerous times he had returned to Algeria.  It no doubt was in the Tribunal’s mind when it reported that at an airport interview the applicant had said when asked if he had intended to stay in South Africa, he intended to come to Australia because he heard the climate was very good and that if successful his family would be able to join him early.

19                  The conclusion reached by the Tribunal was one open to it.  There may be some logical difficulty in finding that a person has no fear of persecution on the one hand, albeit that persons in the same situation should have such a fear, but having said that it is not logically impossible and hardly involves an error of law.  The issue of whether by virtue of being an Imam, a fear of persecution would be well-founded ultimately could only arise if the applicant in fact feared persecution.  The Tribunal was not satisfied that he did.  Hence the failure of the Tribunal to deal with the objective circumstances of Imams was an issue which did not really need to be addressed.

20                  No doubt in an ideal world it would be desirable for members of Tribunals to deal with all matters advanced before them, notwithstanding questions of materiality, but time is short, resources are limited and a tribunal can hardly be criticised for not so doing. 

21                  I should refer to one matter that arose during the course of argument.  The Tribunal has been referred, apparently, to the decision of another Tribunal, RRT reference N98/24575 of 17 September 1998.  That Tribunal decision concerned a citizen of Algeria who was an Imam.  It is unnecessary to go into the detail of the facts of that case.  Suffice to say that the applicant there had worked as an Imam and had suffered various incidents which led to the conclusion of the Tribunal that there was a real chance that he faced serious harassment, disappearance or killing by security forces if he returned to Algeria because of a political opinion imputed to him.  It was submitted that the present Tribunal member should have taken this decision seriously and dealt with it and presumably reached somewhat the same conclusion in respect to the applicant. 

22                  With respect I do not see why the Tribunal should necessarily be required to deal specifically with another decision of the Tribunal on facts quite different to those of an applicant.  No doubt, even if the facts were the same, different Tribunal members might come to different conclusions on the same facts provided in each case it was open to the Tribunal to come to that conclusion.  Factual findings are not legal findings.  From the evidence before it, it was open here for the Tribunal to conclude that the applicant did not have a well-founded fear of persecution for a Convention reason.  Its failure to deal specifically with the submission put to it, although clearly noting it on at least two occasions, involves in the present circumstances no error of law permitting review or being a ground of review under the legislation.  In these circumstances I would dismiss the application.

23                  I order the applicant pay the respondent's costs.

Associate:

Dated:              15 June 1999