Aftis v Minister for Immigration and Multicultural Affairs

The Tribunal's Findings 5 Turning to the three claims advanced by Mr Aftis, the first related to his failure to respond to a recall notice to the army said to have been issued about 2 years after he completed his national service. 6 Relying both upon inconsistencies in the applicant's own evidence and upon country information dealing with military service and the occurrence of recalls in Algeria, the Tribunal was not satisfied that a recall notice was issued in 2000 to Mr Aftis. Even if it was, the Tribunal indicated (i) that there was no evidence to indicate it would have been issued for an improper purpose; (ii) that its issuance could not itself be considered as persecutory in nature; (iii) that, as indicated by country evidence, failure to respond to a call-up could lead to a conviction for being absent without leave, an offence not considered to be a major issue attracting capital punishment (as Mr Aftis alleged); and (iv) that there was no evidence to suggest that the law in respect of non-compliance with a call-up is applied in a discriminatory manner for any Convention reason. 7 In consequence the Tribunal concluded that it was: "not satisfied that the applicant has a well-founded fear of persecution at the hands of the Algerian Government because of an alleged failure to respond to a recall to duty in the Algerian reserve." 8 The second claim, based on Mr Aftis' Berber ethnicity, was disposed of shortly in light (a) of his account of his own experiences, (b) of the independent country evidence and (c) of his experience in the army. As to the last of these, while accepting that Mr Aftis may have experienced racial abuse and discriminatory treatment while in the army, the Tribunal did: "not consider the experiences he recounted, of verbal abuse, having to crawl, having to clean toilets and being beaten with a stick, were sufficiently serious as to constitute persecution or to give rise to a well-founded fear of persecution, in the unlikely event of him being recalled to reserve duty at some stage in the future." 9 The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution because of his Berber ethnicity. 10 The third claim advanced by Mr Aftis, relating to fear of persecution by terrorists because of his military service was described by the Tribunal as his "strongest claim". I will deal with this separately below as it raises distinct issues in this proceeding. 11 The limits to this Court's jurisdiction to interfere with a Tribunal's decision on account of its fact-finding and reasoning, which I explained to the Applicant, is of particular significance in this case. As I indicated to him, this Court can only set aside a decision of the Tribunal if a ground set out in section 476(1) of the Migration Act is established. Those grounds do not allow the Court to interfere with the Tribunal's decision simply because the Tribunal has taken a particular view of the facts of his case with which this Court might disagree. As Kenny J commented in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257: "A Tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis or because it adopts unsound or questionable reasoning." 12 Importantly, this Court cannot change a decision of the Tribunal even if it thinks the Tribunal was wrong on the facts: see Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426. Illogical reasoning will not provide a ground of review: see Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565. The Tribunal does not have to have rebutting evidence available before it can lawfully hold that a particular factual assertion by an applicant is not made out: Selvadurai v Minister for Immigration and Multicultural Affairs (1994) 34 ALD 347 at 348. Finally the Tribunal in its statement of reasons does not have to provide a line by line refutation of an applicant's case. 13 Turning to the findings concerning the prospect of army persecution and that concerning Berber ethnicity, neither as I have indicated is open to challenge on the mere ground that they were mistaken findings of fact or because their merits may be contestable. Likewise, in my view, neither is open to challenge on the ground that there was no evidence to justify the decisions: see section 476(1)(g). Further, in light of the findings made there is no apparent error of law suggested such as might justify inquiry under section 476(1)(e). No relevant material appears to have been ignored; no wrong question appears to have been asked; no irrelevant material appears to have been relied upon: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at paras 82 to 83. Accordingly, I am unable to say that the decision in relation to these two claims was not authorised by the Migration Act: see section 476(1)(c). I am unable to discern that any other of the grounds in section 476(1) could reasonably be invoked by Mr Aftis. 14 The third finding (relating to fear of persecution by terrorists on account of military service) is more concerning. The claim made by the applicant was that he finished his military service in July 1998. Thereafter, to use a summary made by the Tribunal with which the applicant (relevantly) agreed: "[t]errorists came looking for him in September and October 1998. They were following him to kill him. To this point, he responded "yes, they came to the house". He complained to the government but nothing was done, and sometimes the government gave his name to terrorists. To this point he said "yes, they said they could not provide me with protection". He hid at his sisters' houses. He then found a job as a driver for a dairy factory. The terrorists continued to follow him and came to the factory looking for him. He hid again until he left the country. He was recalled to the army, but did not go, and now fears he will be killed by the government as a result. To this he said, "if I did go back, my family would be killed by terrorists and I would die in the army". He also thinks the government or the terrorists will kill him because he is a Berber, to which he added that the terrorists would also wish to kill him because he was in the army. … The Tribunal asked if he wished to add anything. He said that, when one is conscripted into the army, the government will give your name to the terrorists. He said that, in Ain El Hammam, the names of those who are conscripted have their names written on wall posters by the terrorists. The Tribunal asked how he knew that the government gave names to the terrorists, adding that it seems implausible that a government would assist the terrorists in that way. The applicant said that there was no other way the terrorists would get the names." 15 There was considerable, and conflicting, independent country evidence before the Tribunal on the question of terrorist reprisals against former conscripts. The various sources warrant separate mention. 1. US Department of State: 2000 Country Reports on Human Rights Practices: "Armed groups committed numerous serious abuses and killed hundreds of civilians. There was an increase in violence compared with 1999. Armed terrorists continued their widespread campaign of insurgency, targeting government officials, families of security-force members, and civilians. Many of the killings appeared to be related to opposition to the amnesty program. According to the Government, more than 5,000 insurgents have availed themselves of the amnesty program so far, and the armed groups have become smaller; however, a hard-core insurgent force remains." 2. UK Home Office, "Algeria", October 2000: "Most incidents from the end of 1998 were in rural areas and in the smaller towns and cities. Terrorist abuses and security incidents continued throughout 1999 but decreased and became more localised compared with 1998. In many cases terrorists randomly targeted civilians in an apparent attempt to create social disorder … The main armed Islamist groups now operating in the country are the GIA and the Salafist Call and Combat Group (GSPC). Government forces are reported to be mounting operations against them but regular reports of terrorist attacks on the population and military continue. In the short term there is nothing to suggest that the armed groups now operating will lay down their arms. However, the main cities are generally secure and incidents of terrorist activity have become more localised in rural areas and smaller towns, and with generally fewer numbers of casualties in incidents in the past year. In July 2000 an expert on armed groups stated that it is essentially rural terrorism which is taking place except in the strongholds of the armed groups." 3. Canadian Immigration and Refugee Board, "Algeria: National Service", April 1999: "The Canadian Embassy in Algiers states that newspaper articles, for the most part dating from 1994 and 1995, have reported the deaths of hundreds of national service draftees at the hands of "terrorist groups" (16 Mar 1999). Between 1993 and 1995, when the "terrorist activity" was at its peak, Islamists reportedly put up posters in mosques threatening to kill young Algerians who reported for national service duty (ibid). A number of measures taken by the government have diminished this type of Islamist activity (ibid). Today, the "terrorists" launch general attacks against the civilian population in the regions rather than targeting specific individuals (ibid). However, from time to time, the press continues to report cases of Islamists attacking or harassing Algerians who have recently finished their national service." 16 The matters I would note in the above are first, the latest report (from the US) noting an upsurge in violence in the year 2000; and secondly, the view in the UK and (less specifically) in the Canadian reports that terrorist attacks had become more localised in rural areas and smaller towns. 17 Turning to the Tribunal's findings, it rejected for quite unimpeachable reasons the applicant's factual assertion that the government provided the names of conscripts to terrorists. 18 As to the incidence of targetting by terrorists, the Tribunal turned to the country information as follows: "The independent evidence indicates that there once was a great risk of conscripts being targeted in the way the applicant describes. However, that evidence, while by no means indicating that political killings and violence have ceased, and indeed may have increased in 2000, compared to 1999, the violence "now seems to take place primarily in the countryside, as the security forces largely have forced the insurgents out of the cities." The Canadian Immigration and Refugee Board, in the report cited above, having referred to hundreds of national servicemen being killed between 1993 and 1995, says that "a number of measures taken by the government have diminished this type of Islamist activity," and that nowadays, the terrorists "launch general attacks against the civilian population in the regions rather than targeting specific individuals." The Tribunal notes that that report goes on to say, however, that "from time to time, the press continues to report cases of Islamists attacking or harassing Algerians who have recently finished their national service." In the previous paragraph, the report had referred to Amnesty International references to attacks of this kind, but had noted that Amnesty International had not been able to corroborate these reports." 19 As to the protection afforded by government, the Tribunal stated: "No government can ever give an absolute guarantee to its citizens that it can prevent all crime. However, the evidence discussed above does indicate that the Algerian government has been active in trying to prevent attacks such as those feared by the applicant and has, to a considerable extent been successful. For example, the applicant said he knew of no former conscript from his locality who had been killed by terrorists, and the only instance of which he was aware where a person associated with the government was killed by terrorists, was the case of a policeman killed in 1994, some seven years ago." 20 As to the factual assertions made about terrorist interest in the applicant and of the significance of that interest, the Tribunal indicated that it: "[accepted] that some terrorists may have asked about him between September 1998 and July 1999 as he claimed. However, he made no claims of any further interest in him since July 1999. Had the terrorists, however, been serious in their wish to do him or his family harm, the Tribunal believes they would have done so soon after his demobilisation from the army. The Tribunal is of the opinion that any risk to him or his family because of the fact of his past military service, would be virtually non-existant now, almost three years after he left the army. In the light of the Canadian Immigration and Refugee Board report cited above, which indicates that there is no firm evidence of individuals being targetted by terrorists today, the Tribunal considers that, in the unlikely event that the applicant were to be recalled to duty at some stage in the future, the chance of him being personally targetted would be remote. Moreover, the Tribunal is of the opinion that the applicant has the protection of the government in relation to threats of this kind, and does not accept that the government refused to protect him." 21 Finally, as to such subjective fear of persecution by the terrorists as Mr Aftis may have entertained, the Tribunal concluded: "Although the applicant says that he started to plan to leave Algeria in 1999, he did not do so until December 2000. The Tribunal believes that, if the [sic] were genuinely in fear of terrorist action against him personally, he would have left Algeria at the time the threats were being made, not more than a year later." 22 Counsel for the Minister accepted that the Tribunal's use of the country information may give rise to some question, as it indeed gave to this Court. On one view of that information, terrorist violence in 2000 may have been increasing as the Tribunal appears to have accepted. If government was providing protection against this, it was primarily in large cities and towns with terrorist activity becoming more localised in rural areas and smaller towns. 23 Mr Aftis' evidence at the hearing was that: "he lived in a "village" which was about six kilometres from the city of Ain El Hammam, in the Tizi Ouzou region of Algeria. He said that there were between eight and nine thousand people living in his village, but he could not estimate the number of people in Ain El Hammam." 24 In light of the observations of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [81]ff, I raised with Ms Maharaj (for the Minister) whether the failure both to have regard to where the applicant was living in Algeria and to consider the country evidence in light thereof, could give rise to a ground of review under s 476(1) and particularly s 476(1)(b) or (c). 25 Ms Maharaj's submission was that if the case put by Mr Aftis was a different one based on his residence in a rural area and on the government's inability to afford protection against attacks in such areas either generally or against former conscripts, the factual matters I have raised would unquestionably be of central significance as would, relatedly, the issue of relocation if a well-founded fear could be made out because of terrorist attacks in rural areas. But as was said by Gummow and Hayne JJ in Abebe v The Commonwealth (1999) 197 CLR 510 at [187]: "It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out." The Tribunal here, it is said, gave its decision on the case put to it: it rejected the factual assertion that the government was supplying names to terrorists; it illustrated the protection afforded by the government by reference to the applicant's own knowledge and experience of persons in his own locality who had been killed by terrorists; it accepted that terrorists may have been interested in him between September 1998 and July 1999 but that he made no claims of terrorist interest thereafter, and it attributed significance to the passage of time (three years) since he finished his military service; it likewise accepted the by no means uncontentious strand in the country information that there was now no firm evidence of individuals being targetted by terrorists, Mr Aftis having founded his claim on such targetting. 26 In light of the case put, it was submitted that the findings made were reasonably open to the Tribunal and its apparent omissions in considering other matters were of no significance for judicial review purposes. 27 For my own part I consider that this submission should be accepted. It is open to real question whether a differently constituted Tribunal would, as of course, have reached a like conclusion as to the significance of what the country information suggested. But having derived from it what it did, the form of speculation the Tribunal engaged in was open to it as were the conclusions at which it arrived, having regard to its view of the country information, to the way Mr Aftis put his claim (ie individual targetting and lack of government protection) and to Mr Aftis' own evidence concerning his knowledge of terrorist action in his own locality and of the period of terrorist interest in him. The conclusions arrived at were reinforced by the time that passed before Mr Aftis started to plan to leave Algeria. 28 In the event, then, notwithstanding that the fact finding and reasoning of the Tribunal might excite some question, I do not consider a s 476(1) ground of judicial review has been made out. Any challenge to the decision on the third claim would be unsuccessful. 29 Accordingly the application will be dismissed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.