FEDERAL COURT OF AUSTRALIA

Zitoni v Minister for Immigration & Multicultural Affairs

[2000] FCA 621

MIGRATION – review procedure – refugees – protection visa – well-founded fear of persecution – error of law – material questions of fact.

Migration Act 1958 (Cth) ss 424A, 425, 430, 476, 476(1)(a), 476(1)(e)

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

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 referred to

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

Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 referred to

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 referred to

Xu v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 621 referred to

Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 followed

Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60 considered

Naing v Minister for Immigration and Multicultural Affairs [2000] FCA 344 referred to

Fleming G, “The Proof of the Pudding is in the Eating: Questions About the Independence of Administrative Tribunals”, Australian Journal of Administrative Law 7 (1999) 33

1951 Convention relating to the Status of Refugees

1967 Protocol relating to the Status of Refugees

AHMED ZITONI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 106 OF 1999

LEE J

12 MAY 2000

SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal be set aside.

2.         The matter be remitted to the Tribunal for determination according to law.

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

1                                 This is an application under s  476 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 September 1999 which affirmed a decision of a delegate of the respondent (“the Minister”) not to grant a protection visa to the applicant. The applicant, a citizen of Algeria, became an unlawful non-citizen when a vessel on which he was a passenger entered the “migration zone” on or about 18 February 1999. Before arriving in Australia the applicant had spent approximately one year in a detention centre in Indonesia. The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (“the Department”) on 10 March 1999. On 28 May 1999 a delegate of the Minister refused the application. On 31 May 1999 the applicant sought review of the delegate’s decision by the Refugee Review Tribunal. The Tribunal conducted the review hearing on 30 June 1999.

2                     The application for review of the decision of the Tribunal relied upon the following grounds when lodged by the applicant, then unrepresented:

“(a)     The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both.

 (b)      The decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence and it failed to rationally consider the probative evidence that was before it.”

No particulars of the grounds were provided as required by the Federal Court Rules.

3                     At a directions hearing, it was ordered that, inter alia, the applicant file an amended application, giving particulars of the grounds of the application. On 22 December 1999 Legal Aid WA, then acting for the applicant, filed an amended application in which the former grounds were deleted and replaced with the following:

“4.       That the decision involved errors of law, namely:

            (a)        That the Tribunal failed to consider and determine whether the Applicant had a well-founded fear of persecution by being forced to flee and thereby to give up his home and his livelihood consisting of a poultry farm which was subsequently taken over by the military authorities and that this flight was forced on the Applicant as a result of the persecution that the Tribunal accepted that the Applicant may have suffered, namely 18 months held in detention between 1992 and 1993, during which time the Applicant suffered from beatings and other brutal treatment; which in turn was as a result of being forced to provide the FIS with produce from the farm and that the Applicant had a well-founded fear that if the Applicant had remained on his farm he would have had no alternative but to continue to provide produce to the FIS which in turn would bring him to the attention of the military authorities;

            (b)        That the Tribunal failed to consider and determine that if the Applicant had remained on the farm and had refused to provide the FIS with produce or had attempted to prevent the FIS from taking produce he would have been targeted by the FIS for the imputed political opinion of support for the military authorities;

            (c)        That the Tribunal failed to consider and determine whether the military authorities would or would not return the Applicant’s farm, being his home and his livelihood, to him and that in absence of evidence that his farm would be returned, the Tribunal failed to consider that the Applicant had a well-founded fear of persecution for this reason alone.

5.         The Tribunal made certain findings…which were adverse to the Applicant. In reaching such findings the Tribunal failed to observe the procedures that were required by the Migration Act or the Migration Regulations to be observed in connection with the making of the decision.”

Various particulars, amended from time to time, were provided to support the latter ground.

4                     In its reasons for decision, the Tribunal set out its understanding of the provisions of the Act for the grant of a protection visa and of the operation of Article 1A(2) of the 1951 Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the 1967 Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together referred to as “the Convention”) as explained in relevant cases, in particular, Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. It was not submitted that the Tribunal’s exposition displayed misunderstanding of any part of the law. It may be assumed that the statement of the Tribunal set out below was intended to convey the Tribunal’s understanding that persecution must be for a reason specified in the Convention and not the Tribunal’s belief that a constituent element of persecution must be enmity or malignity towards an applicant by authorities of the country of nationality:

“…persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.”

5                     If the Tribunal did understand the law to be as latterly expressed, it would have erred in doing so. (See:  Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [34]-[35], [42]; Kirby J at [60].)

6                     The Tribunal noted that the applicant’s claims were set out in written submissions to the Department (translated from Arabic); in an interview with an officer of the Department; in written submissions to the Tribunal (prepared on behalf of the applicant by a Migration Agent); and in oral evidence given to the Tribunal on 30 June 1999.

7                     The applicant claimed to have been a member of a political party, the Islamic Salvation Front (FIS) (“FIS”), from its commencement in 1989 until it was banned in 1992, and that although he had ceased to be a supporter after it began to operate illegally as a militant organisation, he feared persecution from the Algerian authorities because of that association. He claimed that he had been arrested in 1992 and imprisoned under harsh and brutal conditions for eighteen months for assisting the banned FIS. He claimed that militant members of the banned FIS had forced him to assist them by providing food from his farm and that he faced retribution, either from his erstwhile associates if he refused to assist, or from the military authorities if he did. He further claimed that it had come to the attention of the Algerian authorities that he had left Algeria to seek asylum, and that he feared for his safety if he were to return to Algeria.

8                     At several points in the reasons of the Tribunal the applicant is referred to as “a supporter” or “low level supporter” of the FIS, but not as having been a “member” of that organisation, although the applicant indicated that he had been a member of the FIS in his application for a protection visa and is so referred to in the decision of the Minister’s delegate. According to the transcript of the Tribunal hearing dated 30 June 1999, the applicant stated that he had been a member of the organisation. The Tribunal, in the following extract from its reasons, appeared to accept that “close supporters” of the FIS risked persecution:

“…FIS became banned as a party. The leaders and thousand (sic) of close supporters were arrested and thrown into prison where up to 15,000 of them are reported to remain to the present.”

9                     The Tribunal considered “country information” from various sources and referred to a number of publications, some of which the Tribunal stated had been supplied by the applicant and other Algerian applicants for protection visas. The publications described a situation in Algeria involving abuses of human rights and torture by Algerian authorities undertaken to quash political dissent, and the absence of substance in an amnesty purportedly extended to militant opponents of the Government. Amongst the publications the Tribunal referred to was the opinion of “an Algerian expert, Dr Larbi Sadiki of the Centre for Middle Eastern and Central Asian Studies, ANU Canberra”, also referred to in the decision of the Minister’s delegate.

10                  The Tribunal made the following findings of fact in respect of the applicant’s political activity and the risk of persecution:

·          The applicant was released from imprisonment at a time of continuing security concerns in Algeria and that indicated that he was not regarded as a serious risk at that time.

·          The applicant had limited political involvement prior to the banning of the FIS.

·          During a time of arrests, detention without recourse to the courts, forced entry upon premises, and a general climate of lawlessness and terrorism in the country, the only “unusual” incident immediately following his release from prison was the night-time knocking upon his door by unknown persons. The Tribunal was not convinced that this behaviour, if it did occur, was likely to have been either the Algerian authorities or terrorists.

·          The applicant remained on his farm during that time (from June 1993 until he fled to Oran in about October 1993), and remained two years in Oran, and in Dira for three years without attempting to flee the country, and without any harm befalling him. That suggested that the applicant did not face “potential harm” by reason of persecution after he was released from prison.

11                  The Tribunal went on to consider the consequence of the applicant seeking asylum outside Algeria. It dismissed as “fanciful speculation” claims by the applicant that staff of the Algerian Embassy had monitored his movements whenever he left a refugee camp in Jakarta, Indonesia. The Tribunal referred to comments of Dr Sadiki which it considered supported a finding that the applicant did not face a “real chance” of persecution for a Convention reason in Algeria now, or in the reasonably foreseeable future. The comments relied upon by the Tribunal read as follows:

“[I]f the unsuccessful applicant is neither known to the regime nor is his or her asylum application, he or she categorically face (sic) no threat to their life or freedom. Algeria is a country of hundreds of thousands of migrants and expatriates, and movement by its citizens is not in itself cause for concern or for state suspicion.

Should the state have information on returning asylum seekers, especially those of no history of political opposition, Islamist affiliation, or criminal activities, some irritations, I should imagine, can be expected. But that can be expected of tax dodgers, drug dealers, or other types of criminals returning to their homelands anywhere in the world. Asylum is not always about politics; it has economic motivations. This latter category does not necessarily invite state suspicion or retaliation. Hundreds of thousands of Algerians, whose remittances are a major sources (sic) of hard currency for the state in addition to oil, can be interpreted as living in a quasi state of ‘asylum’. Since ‘asylum’ to a point, convey (sic) the notion of protection, in this case, from economic hardship. This is perhaps a little far-fetched but I see no problem with Algerian seekers of asylum, which more often than not is motivated by economic concerns, returning home without being retaliated against by the state…”

12                  In the Migration Agent’s submission in support of the applicant’s application for a protection visa it was stated that the Algerian Army occupied the applicant’s farm and buildings when the applicant “fled” to Oran. In the transcript of proceedings before the Tribunal, the applicant stated that “the Army confiscated my farm”. The Tribunal does not refer to the claim of seized property and, therefore, makes no finding thereon.

13                  The applicant relied upon the grounds for review provided by ss 476(1)(a) and 476(1)(e) of the Act which read as follows:

“…         

(a)            that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

 …

(e)            that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;”

14                  With regard to the ground provided by s 476(1)(e), demonstrating that, contrary to the conclusion formed by the Tribunal, the material before the Tribunal is able to support a conclusion that the applicant has a well-founded fear of persecution, will not, in itself, show that an error of law has occurred to which s 476(1)(e) applies. (See: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 per Gleeson CJ, McHugh J at 589.) For the reasons which follow it is unnecessary to consider whether a ground for review arose under s 476(1)(e) of the Act.

15                  With regard to the ground of review under s 476(1)(a) of the Act, the applicant submitted that procedures required to be observed by the Act, and not observed by the Tribunal, were those set out in ss 424A, 425 and 430. Only the argument in respect of s 430 need be considered, there being no foundation on the facts for submissions to be made in respect of ss 424A and 425. Section 430 reads as follows:

“430(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

            (a)        sets out the decision of the Tribunal on the review; and

(b)        sets out the reasons for the decision; and

                        (c)        sets out the findings on any material questions of fact; and

(d)        refers to the evidence or any other material on which the findings of fact were based.

…

    (3) Where the Tribunal has prepared the written statement, the Tribunal must:

            (a)        return to the Secretary any document that the Secretary has provided in relation to the review; and

            (b)        give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.”

16                  It was suggested that there is a divergence in the Court’s opinion as to the extent to which s 430 is relevant to s 476(1)(a). (See:  Xu v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 621; Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681.)In Xu views were expressed by two members of a Full Court that if evidence claimed to be relevant is not addressed in the reasons of the decision-maker it is to be concluded that the decision-maker considered it immaterial, materiality being a matter for the decision-maker to determine. A Full Court in Yusuf, in a joint judgment, stated that findings on the materiality of relevant material must be dealt with in the reasons of the Tribunal as required by s 430 of the Act and failure to comply with the requirements of s 430 will provide grounds for review under s 476(1)(a) of the Act. (See:  Yusuf at [35]-[36].) In Singh v Minister for Immigration and Multicultural Affairs (Application No N 908 of 1999) a Full Court, constituted by five judges, has considered the opinions expressed in Xu and Yusuf in the course of the hearing of the appeal in that matter. For the reasons explained by Burchett J in Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60, Yusuf is to be followed by judges of the Court pending delivery of a judgment in Singh.

17                  The question the Tribunal ultimately had to consider and decide and provide reasons therefor was whether the applicant had a well-founded fear of persecution for a Convention reason. It is clear that there are objective and subjective elements that ground a “well-founded fear”. This will involve evaluation of the circumstances as best as that can be done. (See:  Chan per Mason CJ at 389, per Dawson J at 398, per Toohey J at 406, per Gaudron J at 413, per McHugh J at 429.)

18                  The applicant’s submission asserted that the Tribunal made the following findings of fact relevant to that question:

·          The applicant owned, or at least ran, a poultry farm in Algeria until his arrest in 1992.

·          The applicant was a low level supporter of the FIS from 1989 until 1992.

·          The applicant had been coerced into providing produce to members of the banned FIS and that the applicant was imprisoned for some eighteen months as a result of this assistance.

·          The applicant’s eighteen months imprisonment was under harsh conditions and involved beatings and brutal treatment at the hands of the Algerian authorities.

·          In 1993 there was a climate of lawlessness and terrorism in Algeria. Both the armed militia and the authorities engaged in random acts of violence, and there was evidence of gross abuses of human rights and torture of suspected opponents by Algerian authorities.

·          At the time of the applicant’s release from prison the authorities were either satisfied that he had no significant links with the FIS or that his punishment was sufficient to deter him from providing any assistance to the FIS.

19                  “Persecution” can be suffered by events other than physical harm and loss of liberty. The denial of the means of earning a livelihood may constitute persecution if imposed for a Convention reason. (See:  Chan per McHugh J at 430.) It does not appear to be in issue, although the Tribunal made no finding on the point, that the applicant lost his farm for reasons directly associated with the imputation to him of a political affiliation or belief.

20                  It was the duty of the Tribunal to determine what the relevant circumstances were when the applicant left Algeria, and what they would be if the applicant returned to Algeria.On the hearing of the appeal it was accepted that the applicant’s farm had been confiscated prior to, during or after the completion of the applicant’s term of imprisonment. The Tribunal did not advert to confiscation, but proceeded on the basis that the applicant left the farm, and remained for several years in other parts of Algeria, unharmed, before acquiring a passport illegally, and proceeding to Indonesia and ultimately Australia. The Tribunal did not advert to the applicant’s claims that he had lived under false identities after he “fled” to Oran.

21                  The Tribunal considered the applicant’s claim that he had come to the attention of Algerian authorities whilst he and fellow Algerians were in detention in Indonesia, and dismissed the claims as “fanciful speculation”. However, when the applicant arrived in Australia he asserted that Algerian officials had visited the refugee camp in Indonesia and confiscated his passport. That allegation was regarded as of sufficient importance by officers of the Department to cause further information to be sought from the office of the United Nations High Commission for Refugees in Indonesia (“UNHCR”). The UNHCR confirmed that a group of Algerians, apparently including the applicant, had attempted to travel from Indonesia to Christmas Island in March 1998 and had been apprehended at sea and returned to Indonesia by Indonesian authorities. The Algerian Embassy had been informed. Upon learning that Indonesian authorities had contacted the Algerian Embassy, three Algerians, including the applicant, approached the UNHCR seeking asylum. The Tribunal did not advert to the confiscation of the applicant’s passport or to the UNHCR report which confirmed that officers from the Algerian Embassy had been given access to the detention centre where the applicant had been held in Indonesia. The UNHCR report also advised that the applicant was one of three Algerians who had conducted a “sit-in” protest at the United Nations compound in Jakarta in November 1998 demanding re-settlement in third countries as refugees. The protest had lasted for one week.

22                  The Tribunal is entitled to deal, in a compendious way, with material placed before it and is not required to isolate the elements of that material and deal with each element separately in the reasons provided by the Tribunal for its decision. That is particularly so when many minor issues are necessarily subsumed in larger questions dealt with by the Tribunal. Failure of the Tribunal to advert to particular evidence will not dictate a conclusion that the Tribunal failed to consider that material if, in the context of the reasons as a whole, adequate explanation is provided as to how that material had been dealt with by the Tribunal. (cf Yusuf at [21]) On the other hand, it should not be overlooked that the number of decisions a Tribunal member is expected to produce whilst constituting the Tribunal may be, on occasions, antithetical to due consideration of all relevant material in the conduct of a review hearing and the preparation of a decision free from error. (See:  Fleming G, “The Proof of the Pudding is in the Eating: Questions About the Independence of Administrative Tribunals”, Australian Journal of Administrative Law 7 (1999) 33 at 46-47.)

23                  Counsel for the respondent submitted that even if it were conceded that the Tribunal “got it entirely wrong” on the point of confiscation of the applicant’s passport by Algerian authorities, that would not support a conclusion that the Tribunal misinterpreted the law it was required to apply to determine whether the applicant had a “well-founded fear of persecution”.

24                  That may be so, but the Tribunal was obliged to deal with, and make findings on, a number of matters to be able to ascertain the circumstances in which the applicant was placed. Material facts to be determined were whether the Algerian authorities were aware of the applicant’s whereabouts, whether the applicant’s passport had been seized by Algerian authorities, whether those authorities had knowledge of his application for refugee status and whether the whole of his property in Algeria had been seized or confiscated. If confiscation of the applicant’s property in Algeria, and incarceration of the applicant for a year and a half is explained as a penalty imposed for an imputed political affiliation or belief, any act by Algerian authorities in Indonesia to seize the applicant’s passport would be an important part of the applicant’s circumstances and a material fact to be determined. It would indicate that Algerian authorities had knowledge of the applicant’s whereabouts and of his activities in Indonesia and had displayed interest in them and would be material to any finding as to whether the applicant had a well-founded fear of persecution by reason of imputed political opinion if returned to Algeria. To be able to apply the relevant law properly, the Tribunal had to make material findings of fact required by the information placed before it, being findings central to the outcome of the review. (See:  Naing v Minister for Immigration and Multicultural Affairs [2000] FCA 344 per Hill J at [40].)

25                  The relevant conclusion by the Tribunal was as follows:

“I have considered and accept the independent evidence provided by Dr. Sadiki and, having found the Applicant had no sigificant (sic) profile in Algeria and was not at risk when he left I find that the application for asylum, of itself, does not provide the Applicant with a profile which is anyway enhanced such that he would be of concern to the authorities or to FIS for his political opinion.”

26                  The passage from Dr Sadiki’s “evidence”, referred to by the Tribunal, does not appear to be pertinent to the situation of the applicant. The applicant is known to the “regime”. It was accepted that he had been imprisoned for eighteen months and had suffered ill-treatment. Confiscation of property of the applicant was likely to have been effected by the “regime” by reason of the political opinion imputed to the applicant.  Furthermore, the material before the Tribunal suggested that the application by the applicant for “asylum” was known to the “regime”.

27                  If such findings of fact were made by the Tribunal, the return of the applicant to Algeria would not put him within the class of persons Dr  Sadiki suggested would face no adverse attention from the “regime” if returned to Algeria, namely persons unknown to the “regime” or persons whose application for “asylum” is not known to the “regime”, or persons of no history of political opposition or Islamic affiliation whose application for “asylum” was known to the “regime” to be based on “economic circumstances”.

28                  To show that the review had been conducted in a rational manner, the Tribunal was obliged under s 430 of the Act to set out findings on material questions of fact and to refer to the evidence on which those findings were based. As is disclosed above, the Tribunal failed to make findings on material questions of fact, namely whether the applicant had suffered confiscation of his property by reason of imputed political opinion and whether Algerian authorities in Indonesia had seized the applicant’s passport and were aware of his application for asylum. Only after findings of fact on those issues were made, as demanded by the material before the Tribunal, could the Tribunal assess whether there was a real risk that the applicant may suffer persecution for a Convention reason if returned to Algeria. Such an error by the Tribunal provides ground for review of the Tribunal’s decision under s 476(1)(a) of the Act. (See:  Yusuf at [36])

29                  The decision of the Tribunal will be set aside and the matter remitted to the Tribunal for determination according to law.

Associate:

Dated:              12 May 2000