FEDERAL COURT OF AUSTRALIA

L’Hadj v Minister for Immigration & Multicultural Affairs

[2001] FCA 1608

MIGRATION – application for protection visa – whether failure of Refugee Tribunal to address claim made by applicant constituted an error of law.

Amin v Minister for Immigration and Multicultural Affairs (2001) FCA 312 referred to

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

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

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied

Labed v Minister for Immigration and Multicultural Affairs (2000)

FCA 36 followed

Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) FCA 247 followed

W124 v Minister for Immigration and Multicultural Affairs (2001) FCA 1387 followed

AMEZIANE SAID L’HADJ V MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

S 110 OF 2001

MANSFIELD J

26 NOVEMBER 2001

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application be allowed.

2.                  The matter be remitted to the Refugee Review Tribunal for re-hearing.

3.                  The respondent pay the applicant’s costs of the application to be taxed.

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 to review a decision of the Refugee Review Tribunal (the Tribunal) given on 27 June 2001.  The Tribunal affirmed a decision of a delegate of the respondent made on 23 March 2001 to refuse to grant to the applicant a protection visa for which he had applied on 12 February 2001.

2                     It is a criterion for the grant of a protection visa that the applicant for the visa is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Migration Act 1958 (Cth) (the Act): see s 36(2) of the Act.  In practical terms, by reason of s 65 of the Act, that meant that the delegate of the respondent, and on review the Tribunal, had to be satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention if he were to be eligible to be granted the visa.  Article 1A(2) of the Convention defines a refugee as any person who:

“...

owing to 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

3                     The applicant is a citizen of Algeria.  He was born in January 1977, and completed his secondary education in 1997.  At about that time he was conscripted into military service, and he served his 18 months compulsory military service until his discharge on 29 September 1998.  He said that he then worked in his father’s food wholesaling business, apart from periods when he was in hiding, to December 2000 when he left Algeria on a false Moroccan passport.  He arrived in Australia on 30 December 2000.

4                     The Tribunal, having reviewed the information which the applicant provided to officers of the respondent and to the Tribunal, including at the hearing conducted by the Tribunal on 5 June 2001, summarised the applicant’s claims to be a refugee in the following terms:

“The applicant claims to be a citizen of Algeria, a Berber and a Christian, who fears persecution for both of these reasons.  He also claims to fear persecution from the Algerian Government because he refused to sign a contract to enlist in the Algerian army for twenty five years, and from Islamic terrorists because he did service as a conscript in the army.”

The Tribunal dealt with each of those claims.

5                     It was not satisfied that he had a well founded fear of persecution by reason of his claimed Christian religion simply because it was not satisfied that he is, or was, of the Christian religion.  In reaching that view, the Tribunal had regard to what it described as the applicant’s “very superficial knowledge of Christianity”, which it discerned in questions at the hearing before the Tribunal, together with the reverence which the applicant disclosed in relation to the Koran.  In addition, the Tribunal was not satisfied that the applicant was at risk of being exposed to persecutory conduct in any event, even if he were a Christian in Algeria.  He made no claims of having come to any harm in the past by reason of his claimed Christian beliefs, and the Tribunal noted the independent country information that the Algerian Constitution prohibits discrimination based upon religion, and that the government generally respects that provision of the Constitution.  It also noted independent country information about Algeria that aggressive action by Islamic terrorists in Algeria, when it occurs, is not by reason of a perception that the target of that aggressive action is of the Christian religion.  Consequently, the Tribunal was not satisfied that there was any real chance of the applicant being targeted for reasons of his claimed Christian religion in any event.

6                     The Tribunal was satisfied that the applicant was of Berber ethnicity.  However, it was not satisfied that the applicant faced a real chance of being persecuted in Algeria because of his ethnicity, and consequently was not satisfied that he had a well-founded fear of being persecuted in Algeria by reason of that ethnicity.  Although Arabic is the official language of Algeria, the Tribunal found, on the basis of independent country information, that the Algerian government regards the Berber culture and language as major elements in Algeria’s cultural identity, and ethnic Berbers hold high ranking positions in many sectors of Algerian society.  The applicant described to the Tribunal conduct which had been addressed towards him whilst he was undergoing national service which, he claimed, was by reason of his Berber ethnicity.  The Tribunal was not satisfied that he was a credible witness in describing that conduct and found that his claims of such persecutory conduct were “grossly exaggerated”.  It accepted that, while he was undergoing military service as a conscript, he may have endured a degree of harassment and hardship.  It was not satisfied that that harassment was of such seriousness as to constitute persecution, or that it was directed towards him by reason of his ethnicity.  The applicant was promoted twice whilst serving as a conscript.  The Tribunal specifically found that the applicant exaggerated the complaints about his treatment whilst in national service, and rejected his evidence that he had been confined to barracks for 18 months or that other Berber colleagues had been mistreated, and in one instance, summarily shot, or that the applicant had been tortured whilst undergoing conscripted military service.

7                     The Tribunal also was not satisfied that the applicant is at risk of persecution because of any refusal on his part to prolong his period of active military service as he claimed.  In reaching that conclusion, the Tribunal placed weight upon independent country information which did indicate that the army exerts unofficial and improper pressure on conscripts and regular army personnel to prolong military service.  It accepted that the applicant could well have been subjected to such pressure.  However, it was not satisfied that such conduct was confined to persons of a particular ethnic group.  It found that the practice was widespread, and if engaged in in relation to the applicant was not for a Convention reason.  It also was not satisfied that the applicant, once he had resisted that pressure and had been discharged from active duty, was at risk of persecution because he did not prolong his period of active military service.

8                     Finally, the Tribunal addressed the applicant’s claim that he is at risk of attack from Islamic terrorists because he served as a conscript in the Algerian army.  There was independent country information concerning Algeria which indicated that, in the past, such targeting had occurred.  By the time of the Tribunal’s hearing, the Tribunal was not satisfied that the applicant faced any real risk of such attention on the part of Islamic terrorists.  The independent country information indicated that the security forces in Algeria had largely forced Islamic terrorists out of the larger cities, so that such conduct seems to take place primarily in the countryside.  More importantly, as the applicant had ceased military service some 2 ¼ years before he left Algeria, the Tribunal formed the view that any risk to him or his family from that source was “virtually non-existent”.  That view was reached in the context of independent country information of a significantly reduced level of adverse activity from Islamic terrorists directed towards discharged conscripts.  It was a conclusion reached notwithstanding the Tribunal’s acceptance that the fiance of the applicant’s sister had been killed by terrorists in January 1997.  The Tribunal had regard to the evidence that the Algerian government had actively been attempting to prevent acts such as those feared by the applicant and had, to a considerable extent been successful.  He therefore had the protection of the Algerian government against that source of attack were he to return to Algeria.

9                     In relation to the applicant’s claims as identified by the Tribunal in [3] above, therefore, it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention, and accordingly affirmed the decision not to grant him a protection visa.

10                 At the hearing, the applicant was unrepresented.  He made his submissions through an interpreter.  It is understandable, given his background, that his submissions really amounted to little more than an attempt to re-argue matters which were argued on his behalf before the Tribunal.  His application to the Court did not identify any ground of review referrable to s 476(1) of the Act, that is referrable to any ground of review available to the Court to review the Tribunal’s decision.  In such circumstances, it is appropriate in my view for the court to examine the reasons for decision of the Tribunal in order to ascertain for itself whether any reviewable error has been made:  see per Stone J in Amin v Minister for Immigration and Multicultural Affairs [2001] FCA 312 at [13].

11                 I do not consider that, in relation to the claims of the applicant as identified by the Tribunal, it has fallen into reviewable error.  In my judgment, it has properly construed and applied the test to determine whether the applicant is a refugee under the Convention: see eg Chan Yee Kin v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379; Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559.  There is no suggestion that it did not apply procedures required by the Act to be observed in connection with the making of the decision, or that the decision was not authorised by the Act.  It has identified the material upon which it made its findings of fact, and in that process has not been shown to have erred in law or to have exceeded its jurisdiction in the way described in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.  Subject to the matter to which I refer below, in my view no error of law or jurisdictional error is disclosed on the part of the Tribunal on the basis of a failure to take into account relevant material or by taking into account irrelevant material in reaching its conclusion.  In my view, the complaints of the applicant in relation to the issues which the Tribunal did address amounted to no more than an attempt to re-argue the merits of the claim.

12                 However, in my view, the applicant made an additional claim to the Tribunal which was not addressed by it.  That is the claim that he has a well-founded fear of persecution if he were to return to Algeria by reason of having left Algeria illegally.  The applicant, in his statement in support of his application for a protection visa, said in answer to the question why he feared harm or mistreatment if he were to go back to Algeria:

“First of all because I left illegally.”

The written submission of his migration agent to the Tribunal specifically adopted that statement, although the “Submissions” part of that document makes no express reference to such a claim.

13                  Counsel for the respondent contended that, in those circumstances, the Tribunal was not required to address such a claim as it had not been pursued by the applicant before the Tribunal.  I do not accept that submission.  The Tribunal records in its reasons having specifically recognised that as an ongoing claim of the applicant.  It sets out in its reasons for decision its summary of the applicant’s claims as put to him during the hearing, and with which he agreed, including the following:

“You fear if you do go back you will be executed by the Government because you left illegally and because you are a Berber or that you would be killed by the fundamentalists because you had served in the army.’

In recording the course of its interview with the applicant in its reasons, the Tribunal also noted:

“The Tribunal asked what harm he feared if he had to return to Algeria.  He said that, if he went back, he would be killed, and so would his family be killed by the government.  He said he had now been in the detention centre in Australia for five months without any possibility of writing to them or receiving any mail.  The Tribunal asked if he was saying he was forbidden to write.  He said that was not his meaning, and that the people at the camp were quite helpful.  Rather, he meant that he felt it would not be safe for his family if he were to write.  The Tribunal asked why his family would be at risk if he were to return.  He said the Government might ask why he had left without any authorisation.”

Those references, in my judgment, demonstrate that the Tribunal did recognise that the applicant was claiming to be a refugee, inter alia, by reason of the consequences which he feared upon return to Algeria having regard to the circumstances in which he left Algeria.

14                  The ‘Findings and Reasons’ section of the Tribunal’s reasons do not deal with that claim.  I consider that its failure to do so amounts to reviewable error on its part.  Once such a claim is made, it is incumbent upon the Tribunal to address it.  In Labed v Minister for Immigration and Multicultural Affairs [2000] FCA 35, Kenny J reached a similar conclusion where the Tribunal had failed to address a claim that the visa applicant would be executed as a deserter or draft evader if he were returned to Algeria.  Her Honour followed a decision of the Full Court in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247.  Wilcox and Madgwick JJ in that case at [21] said that the Tribunal had not addressed a claim which:

“...might bear on whether the applicant met the Convention requirements of a refugee, the [Tribunal] did not consider the ‘real question which it was its duty to consider’ and this was a constructive failure by the Tribunal to exercise its jurisdiction:  Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 577, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, implicitly endorsing the legal analysis (though not the factual conclusions) of Beaumont J at first instance (1996) 64 FCR 151 at 165.  See also Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 480 and 483.  A decision based on the [Tribunal’s] constructive failure to exercise its jurisdiction is one ‘not authorised by the Act’ within the meaning of s 476(1)(c).  It also involves an ‘error of law’, being an error involving an incorrect interpretation of the applicable law to the facts as found within s 476(1)(e) ...”

Hill J at [50] expressed a similar view.  French J in W124 v Minister for Immigration and Multicultural Affairs [2001] FCA 1387 applied similar reasoning where the Tribunal had failed to give real consideration to a claim that the visa applicant would face persecution upon his return to his country of nationality by reason of being a failed asylum seeker in Australia.   The failure, he said at [40], evidenced:

“...

an underlying failure on the part of the Tribunal to pose for itself the critically important question that it should have asked.  Its failure to pose the question constitutes a failure to apply the criteria under the Refugee Convention which inform Australia’s protection obligations for the purpose of the grant of a protection visa.  In this respect the Tribunal committed an error of law.”

In reaching that conclusion, I am not to be taken as indicating any view as to whether that claim on the part of the applicant has merit, either in relation to whether he has a well-founded fear of serious mistreatment if he were to return to Algeria, or whether any such fear would be for a Convention reason.  Such matters are for the Tribunal, but for the reasons already given, in my view the Tribunal erred by failing to address that aspect of the applicant’s claim.

15                  Counsel for the applicant contended that, even if I were of the view that such an error was established, I should nevertheless dismiss the application because it would be futile to refer it back to the Tribunal.  The basis of that submission was that, on the independent country information before the Tribunal, persons who were found guilty of desertion from the armed forces were not penalised to an extent which would constitute persecution under the Convention, and so there is no reason to think that the consequences of a person being returned to Algeria after leaving it illegally would be significant enough to amount to persecution in any event.  The information before the Tribunal indicates that, in certain circumstances, the penalty imposed upon conscripts who are absent without leave may be only a short period of imprisonment or that they are simply returned to their units.  However, I do not consider that there is a sufficient similarity between the conduct of being absent from conscripted military service without leave and that of illegally departing Algeria that I should accept the submissions to which I have referred.

16                  I accordingly order that the decision of the Tribunal be set aside and the application to the Tribunal be remitted for reconsideration.  There is no reason why the normal rule as to costs should not apply.  I also order that the respondent pay to the applicant his costs of the application to be taxed.

Associate:

Dated:              26 November 2001