FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Zitoni [2000] FCA 1225

MIGRATION –refugees – application for protection visa – respondent a citizen of Algeria and supporter of political party which later became a terrorist organisation – respondent imprisoned for imputed political opinion and tortured – respondent's farm and houses confiscated by army after his departure – later after respondent had left Algeria for Indonesia respondent claimed to have come to the attention of the Algerian authorities who confiscated a false Algerian passport – Refugee Review Tribunal made no findings on these matters but held that the respondent would not be treated differently from a person who might have left the country for economic reasons and who had no political profile – whether failure by Tribunal to make finding on material questions of fact and to refer to the evidence on which those findings were made – whether Tribunal impliedly made adverse findings on factual issues – role of appellate court in cases where decision appealed from involves a question of materiality involving a degree of evaluation or impression discussed.

Migration Act 1958 (Cth) ss 430(1)(c) and (d), 476(1)(a)

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 followed

Xu v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 621 not followed

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

Minister for Immigration and Multicultural Affairs v Kandasamy [2000] FCA 67 cited

SW Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 at 478 cited

Eagle Homes Pty Ltd v Austec Homes (1998) 87 FCR 415 at 439-440 and 440-443 cited

S & I Publishing v Australian Surf Life Saver Pty Ltd (1998) 88 FCR 354 at359-361 cited

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v AHMED ZITONI

W87 of 2000

FRENCH, HILL and WEINBERG JJ

1 SEPTEMBER 2000

PERTH

On appeal from a single Judge of the Federal Court of Australia

THE COURT ORDERS THAT:

1.                  The appeallication be dismissed.

2.                  The appellant pay the respondent’s costs.

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

On appeal from a single Judge of the Federal Court of Australia

REASONS FOR JUDGMENT

THE COURT:

1                     At the hearing of this appeal the Court dismissed the appeal without calling upon the respondent.  It now publishes its reasons.

2                     The Minister for Immigration & Multicultural Affairs, (“the Minister”) appeals to the fFull Court of this Court from the decision of a Judge of the Court, Lee J, setting aside a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of a delegate of the Minister that the Rrespondent to the appeal (Mr Zitoni) not be granted a protection visa.

3                     The learned Pprimary Judge was of the view that the Tribunal had failed to set out its findings on certain material questions of fact (see s 430(1)(c)) and had failed to refer to the evidence or other material on which the findings of fact were based (see s 430(1)(cd)) and thusthat Mr Zitoni had therefore made out the ground of review provided by s 476(1)(a)of the Migration Act 1958 (Cth) namely:

“(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.”

4                     The decision appealed from was decided before a fFull Court of this Court, comprising five Judges had, in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 resolved an apparent conflict of views exposed in Xu v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 621 and Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 on the question whether a failure to comply with s 430 constituted a failure to observe procedures within s 476(1) and so founds a ground of judicial review in the Court.  The view which the learned primary Judge took accorded with that ultimately decided in Singh.

5                     Counsel for the Minister has submitted that Singh was wrongly decided.  The submission was made formerally, to protect the Minister’s position in the event that the High Court takes a contrary view in aother matters presently before it.  Accordingly the appeal procededproceeded before us on the basis that this fFull Court should follow Singh, the majority judgment in which was delivered by four members of the Court.

The case for Mr Zitoni in the Tribunal

6                     It was Mr Zitoni’s case in the Tribunal that he was a national of Algeria who, prior to 1992, had a prosperous chicken farm and two houses, one of which was located on the farm.  He had been a member (the Tribunal referred to him as a “supporter”) of the political party Islamic Salvation Front, the (“FIS”), (initially a political party) prior to the elections which took place in Algeria in 1992, following which that party had been banned and subsequently became a terrorist organisation. As a former supporter he was forced, under threat of death, to supply farm produce and money under threat of death to the FIS.  He was arrested by the authorities in December 1992 and, he said, imprisoned for eighteen months for assisting the terrorists.  He testified to torture and ill treatment while in prison.

7                     Mr Zitoni was released from prison in June 1993 and returned to his farm.  He said that unknown persons banged on his door at night, for about a month, a matter which caused him considerable apprehension.  He obtained a false identity and fled the farm.  Following his departure the farm and houses were confiscated by the Army.  He then went said he left his farm and “fled” to Oran about 600 kms from Algiers, where he remained in hiding, albeit working on a farm for some two years.  During that time he use an identity card in a false name.  He travelled to the eastern border of Algeria where he stayed for three years.  Eventually he arranged with a smuggler for a fee to travel across the border to Tunisia and from there to Indonesia.

8                     Once in Indonesn authorities  After arriving in Indonesia he was housed in a migration detention centre in Jakarta.  In March 1998 he attempted to reach Australia via Christmas Island but was unsuccessful.  He was returned to Indonesia and put into a was returned to the detention centre.  He said that the Indonesian authorities informed the Algerian authorities who visited the detention centre and confiscated the false Algerian passport he which held.  He claimed to have been followed by Algerian authorities when he sought to visit the UNHCR officials in Jakarta and a mosque and complained to the UNHCR about this orally and in writing.  He sought asylum and resettlement from UNHCR.  His claim was rejected and was under appeal at the time he left Indonesia.

9                     Between 2 and 9 November 1998 he said that he with two other Algerians and other asylum seekers staged a “sit-in” protest in the UN compound demanding re-settlement as refugees..

10                  Ultimately he managed to find another boat to depart Indonesia and come to Australia, where he arrived on 18 February 1999. He said that he feared harmd from the Algerian authorities and the terrorists in his own country.  He claimed that his flight from Algeria meant that he would be treated with suspicion by the authorities.

The Tribunal decision

11                  The Tribunal found Mr Zitoni was a low level supporter of FIS until it was banned.  It did not find he had been a member as Mr Zitoni claimed. It accepted that it was possible that he was arrested and imprisoned for providing FIS with assistance but found that his release occurred because the authorities:

“… were either satisfied that he had no significant links with FIS or, as he indicated himself, that his punishment was to deter him from providing any assistance to FIS at all.”

12                  The Tribunal expressed “serious reservations” in regard to his claim that his door was knocked on a nightly basis but even if this happened the Tribunal found that this did not indicate either that it was brought about by members of the FIS or ofby the Algerian authorities.

13                  The Tribunal noted that Mr Zitoni had moved to Oran thereafter and that nothing had happened to him then.  It made no reference to the fact that he claimed that he had lived under there under an assumed name there in conditions rather like a self imposed gaol.  Although the failure to make findings on these matters was not the subject of the present appeal they arguably were likewise material in the relevant sense, for the false identity may well have explained (if accepted) why Mr Zitoni did not come to the attention of the Algerian authorities in this time.  The Tribunal noted also that it was unusual that if Mr Zitoni was in fear he would remain living for so long a time in one area two locations.  It concluded that in the five years which elapsed from his release infrom prison he faced no potential harm that was Convention related.  It turned then to the period of time Mr Zitoni was in Indonesia.

14                  The Tribunal rejected Mr Zitoni’s claim that he had come to the attention of the Algerian authorities while he was in Indonesia.  It accepted, however, that his absence from Algeria and the fact that a return would require him to indicate where he had been “would probably arouse the suspicion that he had sought asylum in another country.”

15                  The central thesis of this part of the Tribunal’s reasons lay in evidence from a Dr Sadiki of the Centre for Middle Eastern and Central Asian Studies, of the Australian National University.  Dr Sadiki had provided the following opinion to the delegate whose decision was under review:

“… if the unsuccessful applicant is neither known to the regime nor is his or her asylum application he or she categorically face no threat to their life or freedom…

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 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 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….”

16                  The Tribunal then applied what Dr DsSadiki had said to the facts of the case.  It said:

“I have considered and accept the independent evidence provided by Dr Sadiki and, having found the Applicant had no significant profile in Algeria and was not at risk when he left, I find that the application for asylum, of itself, doesnot 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.”

17                  Accordingly the Tribunal expressed the view that Mr Zitoni did not face a real chance of persecution for a Convention reason either at the time of decision or in the reasonably foreseeable future.  Any fears Mr Zitoni might hold in this regard were, in the Tribunal’s opinion, not well-founded.

The decision appealed from

18                  The learned primary Judge set aside the Tribunal’s decision because of its failure to make findings in respect of three matters, each of which his Honour considered to be material.  These matters were:

·                    The failure of the Tribunal to consider the confiscation of Mr Zitoni’s farm and houses whether Mr Zitoni’s farm and houses had been confiscated after he left the farm and whether that confiscation occurred for a Convention reason, a matter that could plainly be inferred.

·                    The failure of the Tribunal to note that the Applicant had lived thereafter under an assumed name. whether Mr Zitoni’s passport had been seized by Algerian authorities in Indonesia.

·                    The failure of the Tribunal to make findings of fact concerning events in Indonesia, including the fact that Mr Zitoni’s passport had been confiscated by the Algerian authorities, that the Algerian authorities had been informed of his whether those authorities had knowledge of Mr Zitoni’s attempt to reach Australia by boat via Christmas Island, or a report from UNHCR that officers from the Algerian Embassy had been given access to the detention centre in which Mr Zitoni had been held.  The matter of of his involvement in the sit-in protest at the United Nations compound in Jakarta, was likewise the subject of no finding and of his application for asylum in Indonesia. 

19                  The significance of the first matter was discussed by the learned primary Judge in the following passage:

“… 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 hade 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 gyear 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 dfear 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].

20                  His Honour pointed out that if these matters were the subject of findings in Mr Zitoni’s favour the comments of Dr Sadiki would have no application to him at all.  Clearly he could not then be seen as someone who sought asylum on economic grounds.

21                  The Minister appeals from this decision.

What is a material matter?

22                  In Naing, to which the learned primary Judge referred, a decision given prior to the decision in Singh, Hill J referred to his Honour’s earlier decision in Minister for Immigration and Multicultural Affairs v Kandasamy [2000] FCA 67 and continued:

“a matter will be material, and the Tribunal thereby required to make findings with respect to it, where the matter is one that could affect the outcome of the review.  Where a finding one way or the other could have no effect on the outcome, a fortiori, the matter could not be material.”

23                  In Singh Black CJ, Sundberg, Katz and Hely JJ in a joint judgment considered the content of the obligation under s 430 and endorsed what their Honours referred to as the “generally accepted view in this Court” namely:

“that the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make.  It must make findings on questions of fact that are central to the case raised by the material and evidence before it.  In this respect s 430 sets a standard of decision-making the RRT is required to observe.”

24                  In so saying their Honours refused to accept that the material facts of which s 430(1)(c) speaks are confined to the facts the statute requires to be decided.  Their Honours indicated that the question whether a fact is material may be influenced or determined by the way the Tribunal has approached the case.  It may be interpolated here that the question whether a fact is material may well also turn on the way an applicant has put his or her case, although as their Honour’s note that will not necessarily be determinative.  Their Honours conclude at [57]:

“A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists.”

25                  It is not suggested that there is any significant difference between what is said in Singh on the one hand and what was said by Hill J in Naing, on the other.

26                  It may also be noted that a series of facts may together be material, in the sense that if all are found in an applicant’s favour the outcome would be favourable to the applicant, even where each particular fact on its own, might not be central to the outcome. 

The appellant’s submission considered

27                  The appellant conceded that the questions whether Mr KZitoni’s farm and houses were confiscated and if so whether the confiscation was for a Convention reason were questions which were material in the sense explained in Singhfacts, but submitted that the Tribunal had impliedly decided these issues adversely to the Applicant respondent.  It was said that the Tribunal must have found that the farm and houses were taken over after Mr KZitoni vacated the farm and presumably because they were empty had been abandoned, rather than as a further act of the Algerian authorities resulting from the political opinion imputed to him additional to the imprisonment which Mr Zitoni had already sufferedconsequence additional to the imprisonment which Mr Kitoni suffered as a result of his imputed political opinion.  Clearly the Tribunal made no reference at all to the matter explicitly.  It was further submitted that the matters which may have occurred in Indonesia were, at least on their own, and without reference to the confiscation question simply not of sufficient materiality.

28                  With respect to the submission it is clear that the Tribunal made no finding of any sort on what is conceded to be a material fact.  It is difficult to see how an implicit finding, if one were made, would suffice to comply with the obligation not merely to make a finding, but to refer to the evidence on which that finding was based.  While, it may be accepted, that the reasons of the Tribunal should not be scrutinised with an eye keenly mind attuned to the finding of error, the present is simply a case where it would appear that the Tribunal overlooked making a finding on a matter which, if found in favour of Mr KZitoni would have led the Tribunal to accept that Mr Kitoni’s his case was one which did not fall within the situations discussed by Dr Sadiki in his evidence and upon which whose views the Tribunal relied.

29                  The same is true, as the learned primary jJudge found, with the matters which Mr Zitoni claimed had taken place in Indonesia, including the confiscation of the passport and the attention paid by the Algerian authorities to Mr Zitoni.  The present is obviously clearly a case where, had the matters not the subject of findings been decided favourably to Mr Zitoni the outcome cwould clearly have been different.  Each of the matters that were not the subject of decision was, in myour view, a material matter upon which the Tribunal was bound to make a finding.  Its failure so to do constituted a failure to observe a procedure mandated by the Act and accordingly a ground of review leading to the Tribunal’s decision being set aside..  It follows that there was no error on the part of the learned primary Judge in reaching the decision he did.

30                  One further matter, which was not argued before us, may be noted and that is the role of an appellate court in cases where a party seeks to challenge a decision at first instance that a particular matter of fact is or is not material.  There is much to be said for the view that an appellate court should exercise caution in reversing a decision of a trial judge in a case such as the present where the decision appealed from involves a degree of evaluation or impression unless some error is demonstrated in the judgment: cf SW Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 at 478 per Gibbs CJ, a decision with which Mason J agreed, Eagle Homes Pty Ltd v Austec Homes (1998) 87 FCR 415 at 439-440 and 440-443, and S & I Publishing v Australian Surf Life Saver Pty Ltd (1998) 88 FCR 354 at359-361 and the cases there cited.  It is not necessary for the purposes of this appeal to determine this question because we have formed our own view that the matters which his Honour adverted to as not having been the subject of decision by the Tribunal were in truth material.

Associate:

Dated:              1 September 2000