FEDERAL COURT OF AUSTRALIA

Chachoua v Minister for Immigration & Multicultural Affairs

[2000] FCA 623

MIGRATION – refugees – protection visa – well-founded fear of persecution – imputed political opinion.

Migration Act 1958 (Cth) ss 65, 476, 476(1)(d), 476(1)(e), 476(1)(f), 476(1)(g), 476(3)(c), 476(4)

Migration Regulations Sch 2 (items 866.22, 866.111)

Minister for Immigration and Multicultural Affairs v Savvin [2000] FCA 478 referred to

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs  (1994) 52 FCR 437 referred to

1951 Convention relating to the Status of Refugees

1967 Protocol relating to the Status of Refugees

MOURAD CHACHOUA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 120 OF 1999

LEE J

12 MAY 2000

SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the application.

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 29 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, who is an Algerian citizen, left Algeria in June 1998 and travelled to South Africa on a visitor’s visa issued in Algeria. He did not apply for refugee status in South Africa. He obtained a visa from the Australian Embassy to enter Australia and travelled from South Africa to Australia by aircraft in December 1998. He destroyed his Algerian passport in flight and was detained on arrival at Perth airport as an unlawful non-citizen. He applied for a protection visa at that time and thereafter has been held in a detention centre. On 8 April 1999 a delegate of the Minister refused to grant a protection visa. On 14 April 1999 the applicant sought a review of that decision by the Tribunal. The Tribunal conducted a review hearing on 2 June 1999.

2                     Under s 65 of the Act and under item 866.22 of Sch 2 of the Migration Regulations 1994 (“the Regulations”), if the Minister is satisfied that, inter alia, an applicant for a protection visa is a person to whom Australia has protection obligations under the “Refugees Convention” the visa is to be granted to that applicant.

3                     Item 866.111 states that “Refugees Convention” means the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. Whether the Protocol “amended” the Convention may be doubted. (See:  Minister for Immigration and Multicultural Affairs v Savvin [2000] FCA 478 per Katz J at [30])

4                     Under Article 1A(2) of the Refugees Convention, to which Australia is a contracting party, Australia has protection obligations to a person who

“…owing to a 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;…”

5                     In its reasons for decision the Tribunal noted that the claims for protection made by the applicant were set out in written submissions to the Department of Immigration and Multicultural Affairs (“the Department”); in records of interviews conducted with the applicant by officers of the Department; in written submissions to the Tribunal; and in oral evidence given to the Tribunal in June 1999. Only part of that material and only some of the documents to which the Tribunal referred were included in the papers before the Court.

6                     In summary, the applicant’s circumstances were as follows. He is 30 years of age and is a member of the Berber ethnic group which constitutes approximately 25 per cent of the Algerian population of 26 million. He has a law degree from the University of Algiers but left Algeria several months before completing a “diploma” that would have qualified him to practise law. It seems he had the status of an “articled clerk” at the time he left Algeria. The Berbers were the original inhabitants of Algeria and about half the Berber population is concentrated in a mountainous region, Kabylia, east of Algiers. Berbers in that area live a traditional rural life and express commitment to a common culture and language. The dominance of the Arabic language and promulgation of “Arabisation” laws has created tension between the Berber and Arabic Algerians since Algeria obtained independence from France in 1962.

7                     However, transcending that conflict is the insurgency of Islamic militants which has racked the country since the early 1990s. Excesses and abuses of human rights have been carried out by Islamic terrorist groups and by Algerian security forces engaged in counter-insurgency activities.

8                     The United States Report on Algeria for 1999, which was before the Tribunal, confirms that some Algerian citizens are at risk of persecutory treatment by Algerian authorities and others are at risk of such treatment at the hands of Islamic terrorist groups beyond the control of the Algerian Government.

9                     The applicant claimed that, with fellow university students, he had been active in promoting the Berber cause and had been involved in organising protests at Berber festivals against repression of the Berber culture and language. The applicant claimed that in late 1997 or early 1998 his activities in a student organisation formed to support the Berber cause had come to the notice of police or security forces at Freha, a town in the Kabylia region in which his family home was situated. The applicant claimed that he had been taken to police stations at military barracks on three occasions where he had been threatened, abused and slapped for his support of the Berber movement. The applicant claimed that in March 1998 he had been seized from the office of the Berber organisation he supported and taken to a room at a military check-point and seriously sexually assaulted, the purpose being to humiliate him for his support of Berber demands.

10                  The applicant also claimed that he was at risk of assassination by Islamic fundamentalists by reason of his participation in a self-defence unit led by the applicant’s uncle in Freha and formed to guard against Islamic terrorist activities.

11                  The Tribunal accepted that serious human rights abuses had occurred and continue to occur in Algeria. It accepted that the applicant was a “sympathiser” with legal Berber groups but was not satisfied that the applicant was a “Berber activist” who had established a group to which the attention of the Algerian authorities had been directed. Furthermore, the Tribunal found that Berbers are not persecuted by Algerian authorities by reason of their ethnicity, or for being members of a social group promoting Berber customs and language, or for political opinion imputed to Berber “activists”. The Tribunal did not accept as being credible the applicant’s claims of mistreatment. The Tribunal did accept that in the eyes of the Islamic militants, persons promoting the Berber cause would be seen as persons holding a political opinion antithetical to the Islamic militant cause, in particular as persons encouraging the Algerian authorities to support a pluralist society not beholden to fundamental Islamic law. The Tribunal did not accept that the activities of the applicant would have come to the notice of such terrorist groups.

12                  The Tribunal, however, did accept that Berbers active in “anti-Islamic self-defence groups” in Algerian towns could be attacked by Islamic terrorists and appeared to accept that the applicant would have a well-founded fear of persecution for that reason, namely imputed political opinion, unless the Tribunal found that it was reasonable to expect the applicant to relocate elsewhere in Algeria where he would not be at risk of such harm.

13                  The Tribunal was satisfied that it was a reasonable option for the applicant to live in some part of Algeria other than Freha thereby avoiding any real risk of harm. Implied in that finding was a conclusion that the applicant was not a person whose activities would cause terrorist groups to impute to him anti-fundamentalist political opinion that would inspire those terrorists to follow his movements in Algeria with the intention of causing him harm.

14                  The grounds on which the review of the Tribunal’s decision was sought were that the decision of the Tribunal had been an improper exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the applicant’s case (ss 476(1)(d), 476(3)(c)); that the decision involved an error of law in the interpretation of the applicable law or the application of the law to the facts as found by the Tribunal (s 476(1)(e)); that the decision was induced or affected by actual bias (s 476(1)(f)); and that there was no evidence or other material to justify the making of that decision (ss 476(1)(g), 476(4)).

15                  In the course of the submissions of counsel for the applicant, appointed under the pro bono scheme operating under O 80 of the Federal Court Rules, it was conceded that all but the last of the aforementioned grounds could not succeed. The submissions advanced in respect of that ground turned on whether there was any evidence or material to justify the conclusion of the Tribunal that it was reasonable to expect the applicant not to live in his home town of Freha and to relocate in some other part of Algeria, such conclusion being relied upon by the Tribunal for its ultimate decision that the applicant did not meet the requirements of the Act and Regulations for the grant of a protection visa.

16                  The Tribunal referred to Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and expressed its understanding that an opportunity to relocate could be taken to remove a well-founded fear of persecution only if such relocation provided access to appropriate protection from the risk of the occurrence of persecution and it was reasonable, in all the circumstances, to expect an applicant to so relocate within the country of nationality.

17                  The Tribunal noted that the applicant had been based in Algiers for some years whilst he was studying and had “a profession (law)” in which he could obtain employment outside his “home area”.

18                  The material before the Tribunal included the applicant’s application for a visa which recorded that the applicant’s education history included attendance at the “Institute of Law Algiers”, between 1995 and 1996, although the commencement date inserted on the applicant’s behalf is an altered date and the period 1991 to 1995 is left unallocated. The reasons of the Tribunal stated that among the documents the applicant brought with him to Australia was a “cv” in which it was recorded that the applicant studied at the University of Algiers from 1991 to 1997.

19                  There was other material before the Tribunal to the effect that a person of Berber ethnicity and of no political profile could live safe from persecution in Algiers. The Tribunal had already found the applicant to be a person of that class.

20                  There was material in which the Tribunal could find that if the applicant resided in Algiers he would not have a well-founded fear of persecution whilst doing so. In the Tribunal’s statement in its reasons that it was reasonable for the applicant “to relocate away from his home area of Freha” it was implied that the Tribunal was satisfied he could live safely in Algiers. Given that the applicant had already lived in Algiers for some years and there was no material before the Tribunal to suggest that it would be unreasonable to expect the applicant to live there, there was material on which the Tribunal could conclude that it would be a reasonable option for the applicant to accept.

21                  To the extent that the Tribunal’s conclusion as to the reasonableness of relocation was influenced by its view that the applicant was able to practise the profession of law, there was material on which the Tribunal could assume that the applicant could obtain some form of employment in that profession and in due course could be expected to complete the qualification required to enable him to practise law. The Tribunal did not address whether the applicant would be at risk of harm at terrorist hands wherever he was in Algeria if he, as a Berber, were to commence practise as a lawyer. There was material before the Tribunal suggesting that intellectuals and Berbers in positions of influence were targeted by such terrorist groups. It appears to have been implied in the Tribunal’s decision that it was not satisfied that the practise of law alone by the applicant would elevate the applicant to such a position of influence.

22                  It follows from the foregoing that the ground for review of the Tribunal’s decision relied upon by the applicant cannot succeed and the application must be dismissed.

Associate:

Dated:              12 May 2000