Bahar v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1999-09-03|Before: Lindgren J

1 The applicant applies under s 476(1) of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("RRT") dated 18 June 1999 affirming a decision of a delegate of the respondent ("the Minister") not to grant a protection visa. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it be a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention"). Article 1A(2) of the Convention provides that a refugee is any person who: "owing to well-founded fear of being persecuted for reasons for 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." 2 The applicant's case is that he is outside the country of his nationality, Algeria, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of, as best one can discern, political opinion or imputed political opinion.

THE CASE BEFORE THE RRT 4 The RRT commenced its Reasons for Decision by referring to the procedural background, the legislative framework, and the law relating to the Convention definition of a "refugee". It then turned to consider the applicant's evidence. 5 The applicant's claims were set out in written submissions to the Department of Immigration and Multicultural Affairs ("the Department"), an interview with an officer of the Department, written submissions to the RRT and oral evidence given at hearings before the RRT on each of 10 February, 23 April and 20 May 1999. 6 In his application to the Department, the applicant claimed to have been born in December 1971 in north west Algeria and to be of the Sunni sect of Islam. After 13 years education, he worked on a farm in Mesra Mostaganem from July 1990 until May 1992. He then claimed to have left Algeria and travelled to several countries. In Libya, he was unemployed; in Italy he worked as a "farmer in different farms"; in France he washed cars and worked as an electrician on various jobs; in Germany he "sought asylum" and finally, in England, he was employed as a waiter at different bars and restaurants. He also stated he was an electrician. 7 In a written statement submitted to the Department with his application, the applicant claimed that in 1981, at the age of eighteen, he received a letter by post from the military service requesting he register his name with the army and undergo a medial examination. The applicant completed these tasks and was called-up for military service in September 1991. However, the applicant claimed that he then decided to ignore the call-up notice and not to undertake his miliary service as "the government expected you to kill innocent people". He claimed to fear for his and his family's safety. According to the applicant, those completing their military service are stationed at check-points through which armed Islamists constantly pass and who kill the military officers stationed there. 8 In February 1992, the applicant received his second call-up notice by post. He was afraid as he claimed the government had become stricter about military service and that people's documents were checked to ascertain whether they had completed their military service. 9 The applicant decided to leave Algeria for Libya. The applicant experienced no difficulties in obtaining an Algerian passport and bribed a guard at the Libyan border to allow him to cross despite the fact that he had not completed his military service. 10 Three months later, the applicant bought an Italian passport and travelled to Napoli and then further north to Verona. The applicant remained in Italy as an illegal immigrant and worked on farms. In Verona he was told by many Arabs that it was difficult to get an Italian protection visa. 11 In January 1995, the applicant departed Italy for France. However, he found it even more difficult in France than in Italy to be granted asylum. While in France, he washed cars in a garage, worked as a farmer and an electrician. 12 In May 1997, he left for Germany. The applicant applied for asylum, but was unsuccessful. He was granted a "leave pass", bought another false Italian passport and then left for England. 13 In January 1998, he arrived in England where he worked as a waiter in cafes and restaurants. He was told by other Arabs that he would be detained in a camp and denied asylum as England was one of the most difficult countries in which to be granted refugee status. 14 In London, the applicant bought yet another false Italian passport and a plane ticket to New Zealand. On or around 10 October 1998, he left England for New Zealand. In New Zealand, he bought a fourth false Italian passport and a visa and a plane ticket to Australia. The applicant had destroyed or otherwise disposed of each of the other three false passports and he destroyed the fourth on the flight to Australia. On 14 October 1998, the applicant arrived in Australia, whereupon he approached an immigration officer and stated he wished to seek asylum. 15 He claimed he could not return to Algeria as the Algerian government would punish him with imprisonment for a period of twenty-five years or death for having evaded his military service. Further, if he joined the army, he claimed he would be targeted and killed by armed groups. 16 At the first hearing before the RRT, the applicant stated that his brother, the assistant mayor of Mostaganem, had told him that as he was a deserter, his name would be recorded at all of the airports, and that if caught, he would be imprisoned for twenty-five years or executed. After having failed the baccalaureate and the mechanical fabrication college, the applicant worked for his father from June 1990 until September 1991, at which time he was called-up for military service. A crucial issue before the RRT was when the actual call-up took place. The RRT put to the applicant that the process of national service commenced on the attainment of 18 years of age, which in the applicant's case, would have been from December 1989. The applicant responded that when a person turned 18, they attended a fitness examination. The applicant stated that in mid 1989 he registered with the military service authorities and undertook his medical examination two to three months in Oran, that is, while he was still 17, and was declared fit for service. On the RRT asking the applicant why this had occurred prior to his eighteenth birthday, the applicant replied that "things aren't as strict in Algeria". In September 1991, over two years later, the applicant was called up for military service. The RRT questioned why the applicant had not been called-up earlier and put to him that he had in fact completed his military service. The applicant denied that he had done so. 17 The applicant claimed he did not want to do his military service as the Algerian government was a dictatorial regime. The applicant claimed to have formed this opinion of the regime after the 1992 elections, however, the RRT noted that according to his own claims, he had been called up prior to this, in 1991. The applicant responded that problems in Algeria had actually started in June 1991. In May 1992, he allegedly left Algeria. 18 The RRT stated it believed the true sequence of events to be as follows: as asserted by the applicant, registration took place in mid-1989 and the medical examination two to three months later. However, this would mean that the call-up took place sometime between April and October 1990. If this in fact occurred in October 1990, and the applicant undertook his service, he would have completed it by April 1992, which is consistent with the applicant leaving Algeria in May 1992. Again, the applicant replied that he had not completed his service and would not do so because the Algerian government was a dictatorial and illegal regime. He further stated that it was correct that he was not called-up until 1991 as call-up was not before you are twenty. His adviser commented that in 1989 the situation was peaceful in Algeria and that the government would have been more relaxed about national service and that the issue had to be seen in the context of conditions in Algeria, a country where "things may not occur as they would elsewhere". 19 The RRT put to the applicant that draftees who return to Algeria without having formerly completed their military service are not punished except for being placed far from their homes to complete their service, and being denied visitors for the first six months. The applicant denied this, citing anecdotes of such people being killed at the airport on returning to Algeria. 20 The applicant stated that he did not apply for refugee status in Italy or England as he had been told it was more or less impossible to be granted asylum in those countries. He stated that in Germany he made up a story of having travelled from Algeria through Spain and France to Germany, and claimed he was rejected as "Algerians have no official status there", which he found out only after having completed his application for refugee status. 21 On the occasion of the second hearing before the RRT, the applicant revised the year in which he entered Germany from 1992 to 1997. He admitted that he had not told the German authorities the entire truth. He reiterated that in Italy and England it was too difficult to be granted refugee status and that in France "it [was] obvious that they [would] send [him] back". Apparently, the applicant had also spent a week in Indonesia in an attempt to receive refugee status there. 22 The applicant could not explain satisfactorily why he had destroyed some of his false passports. 23 The RRT asked the applicant why it should believe his story given that he had already lied to the German authorities and that another Algerian detainee had informed the RRT that that person had been told by other Algerians in detention to make up a story and stick to it. The applicant responded that "everyone has a story" and that in Germany he did not take an oath and that his "story .. is only a little different". 24 The applicant was asked questions about Lens, a city south of Lille where the applicant claimed to have lived while in France, which the applicant was unable to answer correctly. Due to difficulties the applicant was experiencing with his interpreter, the hearing was adjourned. 25 On the third hearing date, the applicant could provide the RRT only with anecdotal evidence as to why he had travelled to Indonesia and left that country so soon. He was also unable to provide any details of substance concerning the cities of, and the time he spent, in Verona and Lens. It was also revealed that the applicant had not initially informed the German authorities of the fact that he had left Algeria to evade military service. 26 The RRT noted that it was not until five years after his departure from Algeria in 1992, that he first applied for refugee status in 1997 in Germany, and put to the applicant that this was inconsistent with a well-founded fear of persecution, to which the applicant responded that "he was trying to do the right thing for [himself]". 27 In relation to his military service, the applicant again asserted that the call-up did not take place until September 1991, when he was twenty years old, which was the usual practice, and that the procedure in Algeria was not strict. He claimed that the material concerning the enforcement of orders for military service read to him by the RRT took place only after the third notice had been sent. 28 The applicant stated he had nothing against military service, but that he was afraid to be sent to do military service. He rejected a suggestion by the RRT that there was a distinction between national and military service in Algeria . 29 The RRT proceeded to provide a general overview of the political developments in Algeria. The overview provided details of the civil unrest in Algeria, primarily since 1992, and the rise of the Front Islamique du Salut ("FIS"), the Islamic Salvation Front. The Human Rights Watch World Report 1995 referred to the conflict in Algeria as threatening the ordinary citizen, who can be targeted by both government forces and armed groups. According to the United States Department of State's Algeria Report on Human Rights Practices for 1996, the Armed Islamic Group (GIA) targeted young Algerian males of draft age and there were reports of massacres at roadblocks. Reports also indicated that security forces killed political opponents, especially those suspected of sympathising with armed groups. The Desertion and Draft Evasion in Algeria report commented that: "in the context of Algeria, UNHCR is not aware of any cases where excessive or discriminatory punishment and/or inhumane or degrading treatment ha[d] been applied vis-ŕ-vis deserters and/or draft evaders. Therefore, Algerians claiming persecution on the mere ground of being deserters or draft evaders do not normally qualify for refugee status, unless other elements are involved in the case … we are neither aware of any cases of excessive punishment or inhuman treatment on account of desertion or draft evasion in Algeria, nor are we aware of incidents which would lead to the conclusion that an act of desertion or draft evasion is equated with political opinion in Algeria." 30 According to Algeria: Military Service, Desertion and Conscientious Objection, military service is compulsory for all citizens who have attained the age of nineteen years and, apart from exceptional cases, able bodied Algerians aged nineteen to thirty are not allowed to leave the country prior to completing their military service. 31 A further report by Amnesty International stated that national service is distinct from military service, and that national service consists of "an initial 6 months military training, followed by service in 'economic, administrative, social or cultural tasks, or tasks related to national defence.' "

THE RRT'S FINDINGS AND REASONS 32 The RRT did not believe the applicant in important respects. It did not accept that he had lived in Verona for a good part of two and a half years, in Lens for two years, and in Paris for six months, although it did accept that he may might have visited these cities and their respective countries briefly. But the RRT thought that the applicant had claimed to have lived for significant periods in cities that he mentioned in order to mislead the RRT. 33 The RRT accepted that the applicant had lived in Germany from July 1997 until January 1998 but could make no sense of the applicant's story of having misled the German authorities. 34 The RRT found that the applicant had in fact completed his national service and that national service was distinct from military service. It rejected the applicant's claim that the call-up for service does not occur until a person attains the age of twenty. It maintained that the applicant would have been called up from December 1990, that is from his nineteenth birthday It held that given the circumstances in Algeria at the time, the applicant would have been unable to evade national service. 35 The RRT maintained that after completing his national service, the applicant spent short periods of time in France and Italy before travelling to Germany, which is consistent with what he told the German authorities. He then may have travelled to England and the RRT held his failure to apply for refugee status in that country indicated an absence of a well-founded fear of persecution. 36 Although theoretically the applicant could be called up for "reservist" duties on returning now to Algeria, the RRT considered the circumstances of such a call-up to be too speculative to be given any weight and was not satisfied that a Convention based fear of persecution would be established in this respect. 37 Finally, the RRT found that though the applicant may have a "general fear of harm as a result of the civil conflict in Algeria", this was insufficient to bring him within the Convention definition of a refugee. 38 For the above reasons, the RRT concluded that the applicant was not a person to whom Australia had protection obligations and therefore was not eligible for a protection visa. REASONING ON THE APPEAL 39 The application for an order of review by which the applicant commenced this proceeding on 14 July 1999 does not identify any grounds of his application. He appeared before me in person, assisted by an interpreter, on the hearing on 31 August 1999. His oral submissions on that occasion were directed to persuading me to substitute my view of the facts for that taken by the RRT. In addition, the applicant said that he would wish to lead further evidence. These matters do not, of course, provide a basis for review under s 476 of the Act. 40 The applicant asked for an adjournment of the hearing. He said that he had applied for representation under the pro bono scheme administered by the Law Society of New South Wales. However, counsel for the respondent Minister stated that his instructing solicitor had checked the preceding afternoon with the Law Society officer administering that scheme and had been informed that pro bono assistance had been declined. 41 I informed the applicant that I would study the papers and that if no ground of review permitted under s 476 suggested itself to me, I would proceed to deliver judgment today but would direct that the order of dismissal not be entered for a period of fourteen days to enable the applicant to pursue his attempts to obtain legal representation with a view to submissions being made on his behalf by a legal practitioner. 42 I have re-read the RRT's Reasons for Decision and the relevant documents. The RRT took a view of the facts and of the applicant's credit which was fatal to the applicant's claim. In particular, it found that he had completed national service prior to his departure from Algeria, that he was not in France or Italy for the periods he claimed, and that in fact he left Algeria just prior to his arrival in Germany. The applicant's claim that he had not completed such service, a claim which he repeated before me, was an important aspect of his case before the RRT. 43 The RRT asked itself whether those of the applicant's claims it did accept gave rise to a well-founded fear of persecution. While it decided that the conflict in Algeria posed a risk for the safety of its citizens, it concluded that any fears which the applicant had in this respect were not based on a Convention reason. 44 None of the grounds of review permitted to this Court by s 476 of the Act suggest themselves to me and I propose to dismiss the application. However, as I indicated earlier, I will direct that the order of dismissal not be entered for a period of fourteen days. It is possible that a legal practitioner representing the applicant who studied the RRT's Reasons for Decision or extraneous circumstances surrounding the hearing before the RRT, would persuade me to a contrary view. However, doing the best I can without the benefit of such assistance, I think that no ground of review exists. CONCLUSION 45 The application will be dismissed and the applicant will be ordered to pay the respondent Minister's costs. There will, however, be a direction that these orders not be entered prior to 20 September 1999. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate: Dated: 3 September 1999 The applicant appeared in person

Solicitor for the Respondent: The Australian Government Solicitor

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