Brakni v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-02-07|Before: Lee J, Tamberlin JJ, Spender J

SPENDER J: 1 This is an appeal from the dismissal by a single judge of this court (Lee J) of an application under s 476 of the Migration Act 1958 (Cth) (the Act) for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 30 November 1999, which affirmed a decision of a delegate of the respondent (the Minister) not to grant a protection visa to the applicant. The grounds of permissible review of a decision of the Tribunal are specified in s 476 of the Act, and the primary judge dismissed the application for review, holding that "No ground of review under s 476 of the Act was established by the applicant's submissions".

Background Facts 2 The appellant, who is a citizen of Algeria, became an unlawful non-citizen when he entered Australia at Perth Airport on 27 July 1999. Having left Algeria and entered Egypt in August or September 1998, he remained in Egypt for one week and then made his way down the African continent to South Africa. After approximately eight months in South Africa, he obtained a false passport, travelled by bus to Zimbabwe, and there boarded an aircraft to Australia. 3 Before the appellant left Algeria he made his living as the operator of a market stall selling, first, items described as "Islamic goods" and later "children's clothes, groceries and foodstuffs". The appellant claimed that in January 1996 he had been detained by police and tortured over an eight-day period. He stated that he had been arrested for selling the perfume "musk" to a suspected Islamic fundamentalist or terrorist. He claimed that in the period following his arrest he was under the notice of Algerian security personnel and was detained again on occasions, sometimes being arrested at his place of work in the market place and at other times at the mosque. He claimed he was suspected of anti-government activities and, therefore, may be imprisoned or killed if returned to Algeria. 4 The appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 29 July 1999. On 20 September 1999 a delegate of the Minister refused to grant a protection visa, and on 24 September 1999 the appellant sought review of the delegate's decision by the Tribunal. The Tribunal conducted a review hearing on 10 November 1999 and received further written submissions from the appellant's legal representative, Legal Aid Western Australia, on 24 November 1999. 5 The appellant sought review of the Tribunal's decision on the ground that the Tribunal had erred in law either by failing to interpret the applicable law correctly or by applying that law incorrectly to the facts found by the Tribunal (s 476(1)(e)). It was also contended that the Tribunal had failed to make material findings of fact and that, therefore, as the reasons provided by the Tribunal did not comply with the requirements of s 430 of the Act, the Tribunal had not observed procedures the Act required the Tribunal to follow (s 476(1)(a)).

The Tribunal's Findings 6 The primary judge summarised the findings of the Tribunal as follows: "The Tribunal did not consider the applicant's evidence to be credible and enumerated a number of instances where it considered the evidence to be 'far-fetched'. In the Tribunal's view it was implausible that the authorities would be interested in the applicant simply because he sold musk perfume to a fundamentalist. Furthermore, the Tribunal found that the applicant had 'adjusted' his story over time in relation to the number of times he had been detained and arrested and as to the manner in which he had been identified following his first arrest in January 1996. The Tribunal considered that the delay of between two and four months between the applicant obtaining a passport and leaving Algeria was an indication that he was not in fear of persecution and led to the inference that the applicant had not been detained and tortured as claimed. The applicant had attributed the delay to the need to sell his car and gather together money. The Tribunal considered that the claimed 'horrific torture and ongoing harassment' should have impelled the applicant to enquire as to Egypt's status as a signatory to the Convention after he entered that country, and, thereafter, to seek asylum. The Tribunal also stated that the applicant's credibility had been undermined by his departure from South Africa, which, it said, showed a willingness to leave a situation of safety and to use false documents. With regard to the applicant's present position as a person who has left Algeria to make an application for asylum, the Tribunal gave weight to a report on the treatment of failed asylum seekers prepared by the Federal Office of Refugees, Switzerland, dated 14 May 1998. The report stated in part: 'The majority of the others, [that is, those not considered 'dangerous' opponents of the regime] whose demands for asylum have been rejected are not exposed to (legitimate) police investigations on their return, except if their stay abroad was not regularised, or if they had committed notorious offences abroad or soiled publicly the image/honour of Algeria abroad'. The Tribunal did not accept that the applicant had 'soiled the image or honour of Algeria', or committed notorious offences, or that he was considered 'dangerous' by the Algerian authorities."

The Conclusions of the Primary Judge 7 The primary judge said: "Another mind making findings of fact in place of the Tribunal may have regarded it as unreasonable to reach a number of the conclusions made by the Tribunal." His Honour gave examples: "…it may have been thought that there was no implausibility in the applicant's account that authorities took an interest in him as a vendor of Islamic goods, in particular musk perfume to which it was known that terrorists pursuing the cause of Islamic fundamentalism attributed life-saving properties. It was well-documented in the 'country information' that Algerian authorities could be brutal and irrational in repression of the threat of insurrection by Islamic fundamentalists. It would not be difficult to conclude that the relevant authorities perceived the applicant as a possible sympathiser with the terrorist cause and as a possible source of information in that regard. It would not be necessary that such a suspicion be based on reason before it would be acted upon." Secondly: "…the applicant's statement that he required funds to leave Algeria and spent several months organising his affairs after he obtained a passport, and before he left, may have been seen by another rational mind as raising no issue as to the credibility of the applicant." Thirdly: "The view formed by the Tribunal that it was not credible that the applicant was a refugee if he failed to seek asylum in Egypt when he left Algeria, may have been treated by another mind as tenuous reasoning given that Egypt has had significant problems with terrorists seeking to promote the fundamentalist cause." Fourthly: "The statement by the Tribunal that the credibility of the applicant was undermined by his willingness to leave a 'situation of safety' and travel on false documents may not have been regarded as a reasonable conclusion by another mind given that there was no material before the Tribunal that the applicant would not be returned to Algeria from South Africa and that it was well-known that only by false papers could many genuine refugees reach the places where applications for asylum may be made." 8 Despite identifying these possible criticisms of the reasoning of the Tribunal and the possible unreasonableness of its factual findings, his Honour found: "…all of the foregoing were matters for the Tribunal to determine. Under the terms of s 476 of the Act, an unreasonable conclusion will not, in itself, permit an inference to be drawn that the decision-making process involved an error of law on which the decision is to be set aside."

Grounds of Appeal 9 The appellant in this Court relies on five grounds of appeal: "1. The single judge in the Federal Court in his decision has ignored, as the RRT member did, some important reports issued by credible organisations such as DFAT Country Report 165/99 'return of Algerian failed asylum seekers 17 May 1999: 'Although improving the Algeria Security situation is among the worst world wide' and from Amnesty International: 'Algeria repression and violence must end' October 1994 MDE 20 1081/94 2. The judge didn't take into consideration the danger which the Appellant will face if he returns to Algeria, according to the advice CISNET Document CX 29911: 'the UN Human Rights Commission HCR and other Humanitarian Agencies suggests that the return of unsuccessful Asylum seekers to both countries (Algeria and Iraq) generally constitute a real threat to their safety and is not risk free' 3. The judge has stated the applicant had to enquire as to Egypt's status as a signatory to the convention, but there is no effective protection in Egypt, so the possibility of third country (protection) is neither acceptable nor possible. 4. The learned trial judge erred in that he failed to find that the Tribunal erred in law in making its decision: (a) The Tribunal when it determined that the Appellant had fabricated a story of having been detained tortured and hassled by the police, substantially based its conclusion on the inherent unlikelihood that the authorities would be interested in the Appellant because he had sold the perfume 'musk' to someone who turned out to be a fundamentalist (terrorist); (b) The Tribunal failed to consider the real question namely whether, having regard to the known situation in Algeria, it would not be unusual for the police to target anyone who the suspected terrorist was observed to have contact with and the nature of the transaction was therefore unimportant; (c) The Tribunal further failed to consider whether the treatment described by the Appellant when held by the police was consistent with the country information available to the Tribunal as to the treatment by police of suspects and of persons with only the slightest of connections with the terrorists. 5. The learned trial judge erred in that he failed to find that the Tribunal had failed to observe the procedures that were required by the Migration Act pursuant to s430 of the Migration Act, in that the Tribunal had failed to make findings of fact and state the evidence on which such findings were based in relation to the real issue, which, in the particular circumstances of this claim, needed to be considered by the Tribunal before it made its decision that the Appellant's account of the persecution he had suffered was incredible and had not occurred, namely: (a) whether, having regard to the known situation in Algeria, it would not be unusual for the police to target anyone who the suspected terrorist was observed to have contact with and the nature of the transaction was therefore unimportant;

(b) Whether the treatment described by the Appellant, when detained by the police was consistent with the country information available to the Tribunal as to the treatment by police of suspects and of persons with only the slightest of connections with the terrorists." Grounds 4 and 5 were permitted to be argued by leave. The first three grounds had been formulated in handwriting, apparently by the appellant personally. While not abandoned, they were not pressed by Mr H. Christie, who appeared pro bono for Mr Brakni. 10 It is not an error of law, within the grounds of review set out in s 476 of the Act, that conclusions of fact drawn by the Tribunal are unreasonable or may seem to be unreasonable to another, or that other minds would not have reached the same conclusion. In Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, there had been criticisms made in the Full Court of the Federal Court that the Tribunal had failed to examine a number of factual matters. These were the subject of observations in the High Court by Gleeson CJ and McHugh J at [54], which are illuminating in the present case: "…Why did Mr Eshetu leave Ethiopia (assuming his explanation about the December 1991 incident was rejected)? Had he been a university student? Had he injured his foot, and, if so, how? Had he been a member of the Student Council? Had he gone into hiding? If so, why? The Tribunal, his Honour [Davies J] considered, should have made a finding as to how and why the fear (which it accepted Mr Eshetu entertained) developed. These may or may not be valid criticisms of the Tribunal. The Tribunal concentrated its attention on Mr Eshetu's explanation of his fears. Having rejected that explanation, it did not embark upon a search for some alternative explanation which he did not advance. Once again, different minds could form different views about the reasonableness of that approach. However, it involves no error of law. The ultimate question was whether the Tribunal was satisfied about something. The approach adopted by the Tribunal does not manifest a legally erroneous view as to what it was about which it needed to be satisfied. For the Tribunal to conclude that, although it was satisfied that Mr Eshetu feared persecution, an examination of the reasons he advanced as to why he held that fear failed to satisfy the Tribunal that the fear was well-founded, does not reflect any misunderstanding as to the meaning of the concept of a well-founded fear. No error of law was shown. What emerged was nothing more than a number of reasons for disagreeing with the Tribunal's views of the merits of the case. The merits were for the Tribunal to determine, not for the Federal Court." 11 Moreover, in this case the "real issue" for the Tribunal was not the matters set out in ground 5 (a) or (b) (above). The real issue was whether the persecution the appellant alleged he had suffered had in fact occurred. 12 In Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940, the Full Court of the Federal Court said at [24]: "Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made." And again at [29 - 32]: "The duty of the Tribunal is relevantly to set out the findings on any material question of fact and refer to the evidence or other material on which those findings of fact are based. The Tribunal has done that. In its reasons, it referred expressly to the material upon which it based its conclusion that there has been a material or substantial change of circumstances in Somalia such that a very high degree of real protection is once more viable for the Appellant and its conclusion that peace has existed in Somalia since 31 January 1998. Evidence upon which the Tribunal based that conclusion is set out in the reasons under the heading 'Independent Evidence'. The Tribunal, in its reasons, set out references to a number of reports concerning the 31 January 1998 'Peace Deal'. The Tribunal placed considerable weight on a report in The Economist newspaper. Whether that weight was misplaced is not to the point in considering asserted failure to comply with section 430(1) of the Act. It is not necessary, in order to comply with section 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made. A fortiori, there is no duty on a member of the Tribunal to seek out material which has not been provided to it in connection with the case under consideration in order to give reasons for not attaching any weight to that material. Accordingly, there has been no failure to comply with section 430 in relation to the evidence and material identified by the Appellant. The position of course may be different if the grounds relied on were section 476(1)(g), namely, that there is no evidence or other material to justify the making of the decision." 13 Mr Christie in the appeal contended for the appellant that: "The Tribunal did not consider the Appellant's claim on its merits and as specifically made by the Appellant (AB108 Para 5), but rather the Tribunal considered the Appellant was claiming something that he had not claimed, namely that the selling of musk would cause the authorities to target the Appellant. Whilst the Appellant's credibility was a matter for the Tribunal to determine, the Tribunal was bound to consider the Appellant's claims that the suspicion [arose] because of his suspected association with a fundamentalist and the suspicion and consequent harassment continued and the Tribunal was also bound to consider the country information which was the background to these claims. Its failure to do so was an error of law; it was also a breach of s.430." The submission by Mr Christie that "the Tribunal focussed on the musk instead of on the fundamentalist" is factually wrong. The finding by the Tribunal was: …the Tribunal considers the applicant's story about being detained because he sold perfume to someone who turned out to be a fundamentalist to be far fetched. The Tribunal notes the applicant's advisers submission that there is nothing inherently ludicrous about this claim but the Tribunal disagrees. In the Tribunal's view it is implausible that the authorities would be interested in the applicant because he sold perfume to a fundamentalist. The Tribunal notes the country information referred to by the applicant's adviser from the article by Robert Frisk Conscript tells of Algeria's torture chambers of November 1997 where regular troops were found to have in their possession a false beard and musk perfume, stating that it is a perfume worn by devout Muslims. The Tribunal also notes the information that Musk is believed to be medically beneficial as a stimulant. However none of this information changes the Tribunal's view that it is far fetched that the authorities would be interested in him for selling musk or selling it to a particular person. Secondly the Tribunal finds that the applicant has adjusted his story over time. Having stated in his statement that he was detained with three others, that he was pointed out as the person who sold the perfume, he told the Tribunal in the hearing that he was just pointed out and no mention was made of the perfume." 14 The primary judge noted that reasonable minds might differ on whether the story about being detained because he sold musk to a fundamentalist is "far fetched". However, as McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham 168 ALR 407 at [67]: "If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word 'implausible'. The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged." 15 Here, the description of that account as "far fetched" indicates that the Tribunal did not accept it, because of its view that it strained the bounds of rational credibility. 16 The primary judge concluded: "No ground of review under s 476 of the Act was established by the applicant's submissions. The Tribunal determined the application by making conclusions on relevant material and by dealing with the issues put forward by the applicant. The perceived unreasonableness of any part of those conclusions does not provide a ground of review under the Act." 17 His Honour did not err in so concluding. 18 The appeal should be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT CARR J: 19 I have had the advantage of reading Spender J's reasons for judgment in draft form. I agree that the appeal should be dismissed with costs for the reasons expressed in that judgment.

I certify that the preceding paragraph is a true copy of the Reasons for Judgment of Justice Carr

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

TAMBERLIN J: 20 I have read the judgment of Spender J and agree that the appeal should be dismissed with costs. I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin .

Solicitor for the Respondent: Australian Government Solicitor

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