FEDERAL COURT OF AUSTRALIA

Adala v Minister for Immigration & Multicultural Affairs [2000] FCA 780

TAYEB ADALA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 680 of 1999

CARR J

9 JUNE 2000

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 16 November 1999, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.  The applicant, who is a citizen of Algeria, arrived in Australia on 27 July 1999.   He was then 45 years of age.  On 29 July 1999 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (“the Department”).  On 20 September 1999 a delegate of the respondent refused to grant the applicant a protection visa and on 23 September 1999 the applicant sought review of that decision by the Refugee Review Tribunal.

Application for an Order of Review

2                     The applicant was unrepresented.  His application is in a form substantially similar to several other applications recently lodged by applicants from the Port Hedland Detention Centre.  The grounds of the application were stated as follows:

“(1)     That procedures required by the Act or the regulations to be observed in connection with the making of the decision were not observed. 

  (2)     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.

  (3)     The Tribunal based the decision on the existence of a particular fact and the fact did not exist.

  (4)     The Tribunal Member refused to accept that the applicant has a well-founded fear of persecution for Convention reasons.

Did the Tribunal fail to observe procedures or otherwise err in law?

3                     The applicant being unrepresented and not being able to speak English was, not surprisingly, unable to identify or particularise the procedural and other legal errors which, in his application, he asserted had been made by the Tribunal. 

4                     The applicant submitted a four page handwritten document (to which were annexed photocopies of articles from newspapers published since the Tribunal’s decision).  He also tendered copies of reports from the CNN website of violent incidents in Algeria during April and May 2000 [Exhibit A1].  Those documents did not assist the Court in identifying or particularising his grounds of application.  With the possible exception of two discrete matters, to which I refer below, the document addressed the merits of the Tribunal’s decision.

5                     Accordingly I have examined the Tribunal’s reasons to see whether they reflect any procedural or other error of law of the type referred to in the grounds of application. 

The Decision of the Tribunal

6                     In its reasons for decision, after summarising the procedural history of the matter, the Tribunal first set out the relevant article of the Refugees Convention and the law relating to the interpretation of that article.  Its review of the authorities included the following passage:

“… 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.”

7                     As Lee J has recently commented in Zitoni v Minister for Immigration and Multicultural Affairs [2000] FCA 621 at paras 4 and 5 (in relation to a similar observation in the reasons of the Tribunal in that matter) it may be assumed that this statement was intended to convey the Tribunal’s understanding that persecution must be for a reason specified in the Convention and not its belief that a constituent element of persecution must be enmity or malignity towards an applicant by authorities of the country of nationality – see Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19.  In this matter the question whether there existed enmity or malignity towards the applicant by the authorities in Algeria, as part of the claims of persecution, was not an issue.  That is, the case was conducted before the Tribunal on the basis that if what the applicant experienced or (as a real chance) might experience at the hands of the Algerian authorities or others amounted to persecution for a Convention reason, it did not cease to have that characterisation by reason of any assertion on the respondent’s part (or by anyone else for that matter, including the Tribunal) that the authorities lacked any enmity or malignity towards the applicant.  The question which the Tribunal addressed was whether there was a real chance that the applicant, if returned to Algeria, would be persecuted by reason of political opinion being imputed to him by the Algerian authorities, such political opinion being in favour of those in opposition to the Algerian authorities, including islamic terrorists.  In my view, subject to the above, the Tribunal correctly stated the law. 

8                     The Tribunal noted that the applicant’s claims were set out in written submissions to the Department, an interview with an officer of the Department, written submissions to the Tribunal (prepared on behalf of the applicant by a Migration Agent) and oral evidence given to the Tribunal on 4 November 1999.

9                     The Tribunal then summarised the applicant’s claims and the evidence given by him in his detailed written statement and in oral evidence before it.

10                  In summary, the applicant relied upon persecution by reason of political opinion being imputed to him by the Algerian authorities.  The applicant did not assert membership of any political organisation, involvement in any political activities or the holding of any political opinions which had led or would lead to persecution.  I set out below, in summary, the applicant’s claims and the Tribunal’s findings and conclusions in relation to each of them:

(a)   in late 1996 the applicant was praying at a Mosque when arrested by the police, held at a police station for three days, beaten, verbally abused, asked about terrorist groups and had his beard shaved off and photograph and fingerprints taken.

11                  In relation to this claim, the Tribunal noted a March 1999 United Kingdom Country Assessment to the effect that Algeria is a predominantly Muslim country.  It observed that “it was difficult to see” that worshipping at the mosque in itself would cause problems.  It then had regard to a newspaper report about the activities of militants in mosques.

12                  The Tribunal’s findings in relation to this claim were as follows:

“The applicant has not claimed that his detention has had anything to do with such activities [the activities referred to in the newspaper report quoted by the Tribunal in the immediately preceding paragraph of its reasons].  In the absence of more the Tribunal is unable to conclude anything other than it was a random detention that does not indicate that the applicant is considered to be aligned with the Islamic fundamentalists.  In the absence of more the Tribunal does not accept that this incident in 1996 if it occurred indicates that the applicant faces a real chance of persecution for an imputed political opinion or for any other Convention reason should he now return.”

            (b)   When working as a bus driver between 1992 and 1997, on about three occasions people dressed as police boarded the applicant’s bus, searched the passengers and two or three people were taken off the bus.  At the next city the applicant had to report to the police station that he had lost two or three people and was then interrogated for two to three days.

13                  The Tribunal found that the applicant exaggerated this portion of his claims.  In any event, it found that as the applicant had sold his bus (in 1997), none of these problems indicated that he faced a real chance of persecution should he now return to Algeria.

(c)   In 1998 the applicant bought a taxi (a large one, holding 12 to 14 passengers and occasionally more than double that number).  The applicant claimed that the police would set up check points in certain places and taxi drivers were ordered to assist the police and drive them and other armed forces to and from check points free of charge.  On two occasions the applicant had refused to assist the police and his vehicle had been taken away from him for ten days and fifteen days respectively.

14                  The Tribunal found that being compelled to drive such persons to check points on behalf of the security forces and having a taxi confiscated for refusal to do so was not persecutory and that, in any event, as the applicant had sold his taxi (in mid 1998), he would not face any real chance of persecution because of his occupation as a taxi driver.

(d)   After the applicant sold his taxi, people dressed like police came to his house, handcuffed him, took him to a car where he was beaten with rifles and made to lie down.  He was then taken to a police station and held for fifteen days where he was repeatedly beaten, asked why he sold his taxi and accused of not helping the police.

15                  In relation to this claim the Tribunal said that it was:

“…not satisfied that these events occurred in the way described for the following reasons.”

The Tribunal then gave its reasons for that conclusion which included an extensive (over three pages) reference to country information.  It drew in its conclusions as follows:

“In light of this information the Tribunal considers it plausible that the gendarmes would want to pressure people into joining them or spying for them.  It also appears that the gendarmes have detained people arbitrarily.  However the Tribunal considers it implausible that they would detain the applicant for fifteen days during which time they beat him regularly if they wanted him to spy for them.  At this stage the applicant was no longer working as a taxi driver.  Even if the applicant were being encouraged to join a self defence committee or become one of a group of armed civilians, the Tribunal does not accept that he would have been detained and beaten to force him to do this.

The Tribunal also does not accept that there is any logic in detaining and beating the applicant out of revenge for selling his taxi or to prevent others to follow suit.  In the Tribunals’ (sic) view if the gendarmes wanted to obtain transport from the local community to checkpoints they could have ‘press ganged’ any available car or individual, whether a taxi or not, into such an activity.  In the Tribunal’s view it is not a rational response to punish the applicant for selling his taxi when any number of other alternatives are available.  The Tribunal also does not see why it would be necessary to deter other drivers from selling.  As a result the Tribunal does not accept such a reason explains the applicant’s detention and leaves it in a position where it is not satisfied that such a detention occurred.”

            (e)  After his release, the applicant went to Oran but heard from his brother about a month later that his mother had told his brother that she had seen the police knocking on the applicant’s door at the village where he had formerly resided.  The applicant stated that although Oran was a big city like Algiers and Constantine, he would not be safe.  Initially he had thought he would be, but then he learned that the police were looking for him.  He claimed that the police would send photographs of him everywhere.

16                  The Tribunal’s reasons in relation to this claim included the following:

“However if the Tribunal is wrong about this, the Tribunal also does not see why, if the local gendarmes, who are, as the applicant states, country police, were interested in him, he would not be safe in a large city like Algiers or Oran.  There is nothing in the applicant’s evidence to indicate that he is wanted by the authorities or that he is considered a terrorist.  He was an ordinary bus and then taxi driver.  He has according to his claims never engaged in political activities.  It is in the Tribunal’s view not plausible that he could not live in a big city without problems.  He would be re-locating to an Algerian city where his language is spoken.  He has demonstrated through his travel history that he has the ability to adapt to other places.  If the applicant has had difficulties with the local authorities, it is not unreasonable in the Tribunal’s view for the applicant to relocate to a large Algerian city, rather than to seek international protection.  Given that there is no evidence that the applicant has done anything wrong, the Tribunal considers his suggestion that the police will send his photograph everywhere to be farfetched and an indication that the applicant is prepared to adjust his situation to cover any perceived difficulties.

The Tribunal is satisfied that the applicant has worked as a bus and taxi driver.  It is not satisfied that he has had any political opinion of support of the terrorists imputed to him by the authorities.  It is not satisfied he has been detained for the reasons claimed.  As a result it is not satisfied that he has a well-founded fear of persecution for a Convention reason.  [The Tribunal then referred to information about military activities in Algeria and also set out some further country information.]

This information does not indicate that the political situation has stabilised or that there is no prospect of the killings that have plagued Algeria erupting again with renewed force.  The applicant’s adviser submits that despite an improvement in the situation serious problems remain.  The Tribunal agrees with this assessment.  In this regard it also agrees with the assessment of the Tribunal in Decision N99/28587 of 7 September 1999 that the change has not at this stage shown itself to be a substantial one.  On the other hand the Tribunal notes in that case the person claimed to be a member of FIS [the Islamic Salvation Front] at its early stages.  Here the applicant has not had any involvement in politics.  The question the Tribunal has to answer is whether the applicant faces a real chance of persecution for a Convention reason should he now return.  The Tribunal is satisfied that the applicant is not interested in politics and is not someone who has engaged in activities that would lead to him being imputed with a political opinion in opposition to the regime.  The Tribunal is also satisfied that there is no real chance he will face persecution for any other Convention reason.”

            (f)    That the applicant had a well-founded fear of persecution on the basis that he had no documents and on return would be brought to the attention of the authorities as a person who had unsuccessfully sought asylum.

17                  The Tribunal referred to the country information from the Department of Foreign Affairs and Trade and a report from Amnesty International.  On the basis of that country information and report, the Tribunal said that it did not accept that the applicant would face a real chance of persecution because he no longer had a passport or because he had applied for refugee status in Australia.

18                  The Tribunal found that, taking all of the applicant’s claims separately and cumulatively, there was no real chance that the applicant would face persecution for a Convention reason should he now return to Algeria.

My Reasoning

19                  In my opinion, there is nothing in the Tribunal’s reasons or anything else which has been placed before the Court to indicate that procedures required by the Act or the regulations made under the Act to be observed in connection with the making of the decision were not observed or that the Tribunal either incorrectly interpreted the applicable law or incorrectly applied the law to the facts as found by it or that the Tribunal based its decision on the existence of a particular fact and that fact did not exist.  The Tribunal, with the possible exception to which I have referred at paragraphs 6 and 7 above, understood the relevant law.  It considered each of the applicant’s claims to refugee status, both on an individual basis and cumulatively.  It made its findings of fact and gave reasons for its conclusions.  It is not for this Court to assess the cogency or persuasiveness of its reasons.  The findings of fact made by the Tribunal were open to it on the evidence before it.  It correctly applied the law by asking itself whether, on the facts which it found, there was a real chance that the applicant, if returned to Algeria, would be persecuted for a Convention reason.  Important parts of that reasoning process included:

(a)        the Tribunal’s conclusion that the incident in 1996 was not based on the applicant being considered to be aligned with Islamic fundamentalists; and

(b)        its rejection of the applicant’s claim that he was detained by police for fifteen days (or at all) as alleged by him and was beaten regularly during such detention.

20                  That disposes of the first three of the grounds of the application.  The fourth ground is not a basis for review comprising, as it does, merely the assertion that the Tribunal refused to accept that the applicant has a well-founded fear of persecution for Convention reasons.

21                  I have referred, earlier in these reasons, to two further matters.  They arise out of part of the applicant’s written submissions to the Court.  In that part the applicant claimed that the Tribunal had misunderstood his evidence, due to poor translation.  The applicant submitted that he had never claimed to have had personal problems or been targeted by the police when he was driving a bus but that the danger was the same which could face any bus driver in Algeria.  He had driven the bus between 1992 and 1997, but he was personally targeted just after he had sold the bus and bought a taxi. 

22                  When this matter arose at a directions hearing on 27 April 2000, arrangements were made for a transcript to be obtained of the proceedings before the Tribunal.  A copy of that transcript is in evidence.  Furthermore, the respondent has retained a duly certificated interpreter, Mr Elias Abu-Amsha in this matter.  Mr Abu-Amsha has sworn an affidavit which also is in evidence.  He swore that he was, on 2 June 2000 provided with a written transcript of the proceedings before the Tribunal in English together with tapes of that hearing.  He swore that he listened carefully to the whole of the hearing tapes and to the translation of the applicant’s evidence.  Mr Abu-Amsha swore that as he has lived in Libya for 13 years and has had a lot of contact with Algerians, he did not have any difficulty in understanding the applicant’s dialect. 

23                  Mr Abu-Amsha swore that in his opinion the interpretation of the applicant’s evidence at the Tribunal was of a high standard and that there were no errors of any significance made by the interpreter. 

24                  My review of the evidence before the Tribunal, including the transcript, indicates that the applicant was in fact relying upon his experiences and anticipated future experiences as a bus driver in Algeria.  Even if that were not the case, and his claims were based, as he alleges in his written submissions, on the dangers faced by any bus driver in Algeria, this does not expose any ground of review.  As the Tribunal found, the applicant had sold his bus in 1997 and had lived without problems thereafter for a period of nine to ten months in his village.  There was ample evidence for the Tribunal’s conclusion that he would not, if returned to Algeria, face a real chance of persecution arising out of his activities in operating and then selling his bus.

25                  My assessment of the evidence before the Court is that this is not a case where any errors of translation or interpretation have been demonstrated and particularly not errors of the type referred to in Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231 or Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555.

26                  The second matter raised by the applicant in his written submissions was that:

“Having a beard in Algeria means he sympathised for an islamic state which goes against the Algerian military regime.  (It looks odd but this is the fact in Algeria!).”

In my view, this submission goes to the merits of the Tribunal’s findings.  In any event, the applicant at no stage relied upon the fact that he wore a beard as part of the basis for political opinion being imputed to him.  The Tribunal noted that as part of the incident in 1996 his beard had been shaved off.  In my view, this complaint raises no error of law, but seeks to canvass the merits of the Tribunal's decision.

Conclusion

27                  For the above reasons the application will be dismissed with costs.

Associate:

Dated:              9 June 2000