Hamdi v Minister for Immigration & Multicultural Affairs

EX TEMPORE REASONS FOR JUDGMENT 1 Mr Mourad Hamdi is a citizen of Algeria, who arrived in Australia on 18 February 1999. On 8 March he made application for a protection visa with the Department of Immigration and Multicultural Affairs. On 28 May, a delegate of the Minister for Immigration and Multicultural Affairs, refused his application. On 31 May, Mr Hamdi sought review of that decision by the Refugee Review Tribunal and on 7 September the Tribunal affirmed the decision. 2 On 1 October Mr Hamdi, who is at the Port Hedland Detention Centre, made application to this Court for an order for review of the decision of the Refugee Review Tribunal pursuant to s 476 of the Migration Act 1958 (Cth). The form of application and the grounds of the application were in a standard form that is being used or has been used now on a number of occasions by persons detained at the Port Hedland Detention Centre. It asserts, as the grounds of the application that: "(a) The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both. (b) The decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence and it failed to rationally consider the probative evidence that was before it." 3 These grounds, typically, are not particularised in any way to inform the Court of any basis upon which they are asserted. It is painfully obvious that in many, if not all, of the cases seen so far, applicants for review in the Federal Court using these forms are simply signing them in the hope that there will be some ground of review discovered. That is on the assumption, of course, that there is an understanding of the limits of judicial review. I suspect that in most cases the applicants have little or no idea of the constraints upon the Court and seek what amounts to a merits review of the decision of the Tribunal. This case follows that line. 4 If I can first set out in brief compass the Tribunal's findings and reasons in this case. The Tribunal observed, in a comprehensive review of evidence and the relevant principles, that Mr Hamdi claimed to fear persecution if returned to Algeria, as a consequence of his support for a banned political movement, FIS, an Islamic movement. He claimed first to have come to the attention of the authorities in 1993 when he said he was detained for a period of six months. As to that alleged detention in December 1993, he said he had been arrested at a meeting at a mosque. He and a number of other youths were taken and questioned. The Tribunal found that given the climate of unrest and civil disorder in Algeria at the time it was plausible that police would investigate groups of young men with strong affiliations to Islam because of the profile they could fit as possible fundamentalists involved in dissent. Mr Hamdi's evidence was that most of them were released shortly afterwards, but he claimed to have been held and handed over to authorities who dealt with him on political grounds and on the basis of his involvement in an earlier demonstration in 1991. 5 The Tribunal found that he had no profile of any significance and given the minimal involvement he had had on that one occasion, prior to FIS being outlawed, it was implausible that Mr Hamdi would be singled out from the group in 1993 for that reason. Moreover, his work record, which was in documentary form produced to the Tribunal, specified times spent in various sections of the factory which employed him. That record showed no absence of six months and stated that he had been employed in a section of a factory when he claimed to have been in detention. 6 The Tribunal accepted that he had been detained with a group of youths after the mosque meeting in 1993, but was of the opinion that he was held for a brief time, checked and then released, so that he was able to continue work without any significant absence. 7 The applicant also stated in his application in support of the protection visa, that he had travelled to Tunisia in November 1997 for the purpose of buying materials for a factory. He later claimed that he had applied for a passport in 1993, but that it had been withheld from him until 1997. Notwithstanding this contention, the passport showed, as the Tribunal found, that it was issued in 1993. The Tribunal found the applicant's account to be implausible. He had claimed that he asked to accompany his supervisor on a trip, indicating it was not essential that he go. The authorities who, according to him, had refused to allow him to have his passport, agreed that he could go on the proviso that his supervisor kept the passport during the trip. The Tribunal, not surprisingly, did not accept that the Algerian authorities, having refused to release the passport to Mr Hamdi, would take the chance that he could take it from the supervisor while they were on the trip to Tunisia when there was no need for him to be on the trip at all. The Tribunal found the applicant's account of how he came to keep the passport on return unconvincing. He had been confident and direct in answering questions put by the Tribunal to that point. The Tribunal formed the impression this was an issue he had not thought through. He became hesitant in responding, took time to relate the account he gave and appeared to be going over it in his mind in such a way that it seemed he was constructing the account as he answered. Apart from that, the Tribunal was of the opinion that if the authorities were as intent on keeping the passport from his possession as he had claimed, they would have demanded its return as soon as he returned from Tunisia. It rejected his claim in regard to the passport and found that it had in fact been issued to him in 1993 as the document itself indicated. 8 The Tribunal found that Mr Hamdi had gone to Tunisia in November 1997, in the company of his supervisor and a driver, that he had used his passport and had returned to Algeria without adverse consequences. These findings obviously undermined Mr Hamdi's claims of fear of persecution by the authorities which underpinned his application for a protection visa. 9 The Tribunal went on to deal with problems which Mr Handi claimed to have suffered in December 1997 and his contention that an incident which occurred at that time was a motivating fact of his departure later in that month. His claims in relation to this period had first been made to the office of the United Nations High Commission for Refugees in Indonesia where Mr Hamdi had, in an undated statement, said he had had nine years' experience working in the factory and worked there with another man, Slimani Abdelkarim, that he had worked with Slimani because he was his best friend, but they never talked about any matters of a secret nature apart from their daily duties and technical matters. He said after one period of hard work he decided to take annual leave for twenty days. His proposal had been approved by the relevant superior. Four days later, while he was on that leave, a friend, Saadaoui Hocine, had informed him that Slimani had been taken by military security during his work hours at about 10 o'clock in the morning. He was caught, it was said, in the act of repairing a walkie-talkie. The equipment under repair was said to have belonged to a police officer who had been killed by Islamic dissenters. Three days later, according to Mr Hamdi, he was informed by Saadaoui by telephone that Slimani had been killed by military security. Saadaoui also told him by telephone that he should hide because the Chief of the Zone, that is, his superior, Dekhakhena, had been detained by military security and interrogated about his whereabouts and that Dekhakhena was still in detention. 10 The Tribunal noted that in his first account to the UNHCR, Mr Hamdi had not mentioned that the walkie-talkie had belonged to a police officer killed by militants. With the exception of the supervisor, there was no mention in that account of the detention of his work colleagues, including the one who first told him of the situation. These added elements led the Tribunal to describe his account as having been embellished over time. Moreover, in the statement which had been lodged with his application for a protection visa, Mr Hamdi had mentioned the walkie-talkie being from a murdered police officer but made no mention of the detention of his colleagues, apart from the supervisor. 11 The Tribunal found that Mr Hamdi is a well educated man who had demonstrated his ability to give accounts in sequence and to recognise relevant evidence. The failure to mention the owner of the walkie-talkie at first instance and the detention of his work colleagues were matters of relevance which the Tribunal believed he would not have failed to present if they had occurred. Moreover, if such an incident had occurred and Mr Hamdi had been implicated, in the Tribunal's view, the authorities would have moved to arrest him before disposing of his colleague, an action which would alarm anyone associated with the matter. 12 The Tribunal was of the opinion that Mr Hamdi's details would have been passed on to border posts and that he would have been caught crossing into Tunisia on the second occasion when he left the country to go overseas. What the Tribunal found in fact was that Mr Hamdi was preparing to leave Algeria prior to the date of the claimed incident involving a work colleague. It found that the account had been fabricated in an attempt to provide the applicant with a basis for a well-founded fear in Algeria and that he had left Algeria openly, using a passport in his own name and for reasons other than those he claimed. The Tribunal also observed that the documents which were issued to Mr Hamdi for use overseas prior to his departure from Algeria were all issued on 17 November 1997, which was sometime before the claimed incident said to have given rise to the relevant fear took place. Mr Hamdi had not claimed that those documents were for his business trip to Tunisia early in December which would have been the only possible reason for having them issued at that time. 13 Mr Hamdi had also asserted that he had been subject to recall for military service. In relation to this, the Tribunal observed that Mr Hamdi had served most of his military service prior to 1990. According to the details in his work record, he had only four months left to serve. General evidence about the application of military service to young men from a Dr Sadiki was traversed by the Tribunal and led it to conclude that it was likely that Mr Hamdi had completed his service. At no time in the following seven years was he called on to serve any extra time. Moreover, if this had been the case, it would have been no more than what was demanded of any Algerian male. The question of draft evasion was not relevant. Mr Hamdi was not in the country when the alleged call-up occurred and since the Tribunal found he had no political history or record of evasion it found he would not be considered a dissident for failure to serve those extra months of military service. Given his demonstrated ability to embellish or exaggerate his claims, the Tribunal was doubtful that Mr Hamdi had been recalled to serve as he had claimed and even if he had, there was no element of discrimination in such a requirement. The Tribunal found that Mr Hamdi was of no interest to the authorities for any Convention reason and there was no Convention element present in any potential penalty that might be imposed for his failure to serve in the military for additional months over and above what he had served. 14 Reference was made to Mr Hamdi's participation in a demonstration in front of the UNHCR building in Indonesia and as to whether his participation in that demonstration would have exposed him to retribution if returned to Algeria. The Tribunal concluded that the nature of the demonstration was such that even if it came to the attention of Algerian authorities through the media, there was no open criticism of Algeria nor any political criticism of its authorities. The Tribunal accepted the opinion of Dr Sadiki and the Swiss Federal Office of Refugees in relation to that aspect of Mr Hamdi's case and found that he, who had only demonstrated once, at a time when the party he was supporting was legal, had no significant history of dissent in Algeria and would not be of such interest that he would face any real chance of persecution for his actions in Indonesia. As to claims that Mr Hamdi had been followed or monitored by Algerian agents, the Tribunal found this amounted to no more than fanciful speculation on his part. 15 In summary, the Tribunal found that Mr Hamdi was a person with a very low profile as an FIS supporter. His active involvement was limited to attending and encouraging a handful of other workers to attend a demonstration in support of FIS aims at a time when FIS was still a legal political party and enjoying a high degree of success. His involvement in a demonstration of three to four thousand people had been limited to encouraging about twenty people at his factory to attend and encouraging people on a commuter train to attend. This was against a background of a large demonstration in the population of a million people where FIS had the support of some 75 per cent. 16 The Tribunal accepted that he had been briefly detained in a random round-up of young Muslim men but did not accept that he was subsequently detained for six months for political reasons as a consequence of his participation in the 1991 demonstration to which I have just referred. For all the reasons that I have mentioned, the Tribunal found that the applicant's claims must be rejected or did not constitute a basis for a well-founded fear of persecution under the Convention. 17 In his application for review, Mr Hamdi has had the assistance of Mr Curthoys as counsel, on a pro bono basis and the Court is grateful for the assistance that has been provided. In essence, what Mr Curthoys has done, having perused the reasons and the material, is to take instructions from Mr Hamdi about the basis upon which he challenges the Tribunal's decision and in effect put those instructions into a coherent form so the Court can understand the basis upon which the attack is made. 18 Mr Curthoys has made plain to the Court that he has been unable to discern any error of law or procedure of the kind referred to in s 476 and although his submissions did make reference to s 420 of the Act, application of that section is precluded by the limitations of s 476 as construed by the High Court in the case of Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300. 19 Some mention has been made in submission of s 430 of the Act which provides: "Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 20 Subsection (2) was repealed in 1998. In subs (3) there is provision for return to the secretary of any document that the secretary has provided in relation to the review. There have been divided views in this Court as to whether or not compliance with the requirements of s 430 constitute compliance with the matter of procedure for the purposes of s 476(1)(a) which sets out as a ground of review that procedures were required by the Act or Regulations to be observed in connection with the making of the decision were not observed. A recent decision of the Full Court in Hui Zhong Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741, appears to have held in substance that compliance with s 430 cannot be translated into a procedural matter under s 476 except in the limited area of facts to be found pursuant to the statute itself. 21 That decision is at odds with another decision of the Full Court and obviously there is going to have to be some resolution of the matter no doubt by the convening of a Full Court of five. I understand there is a number of matters in which that issue is to be raised in the February sittings of the Court. However, nothing in the materials before me in any event raises the question of s 430. Having reviewed the reasons for decision of the Tribunal, while noting one or two misprints or errors in syntax, and applying the general approach required to be applied to such reasons as we set out in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 I am not satisfied that even if s 430 is a basis for a judicially reviewable ground under s 476 that any issue under s 430 has been raised. 22 I have read the submissions which have been provided by Mr Curthoys and the nature of the contentions advanced go entirely to the merits of the Tribunal's decision. One example relates to its finding about Mr Hamdi's detention. Mr Hamdi contends that a document from the Algerian Ministry of Justice would be required to prove his period of imprisonment. He impliedly submits that periods of imprisonment are not shown on a record of employment and that he remained an employee while imprisoned so that the document is not evidence of the finding of fact that the applicant was not imprisoned in the relevant period. That is a matter, of course, that could have been raised before the Tribunal. In any event, it is a matter going to the merits of the Tribunal's decision. 23 There is reference to the Tribunal's findings as to the evidence concerning the murder of his work colleague, Slimani. In that regard, Mr Hamdi submits that the Tribunal misapprehended the evidence. It asserts that he had embellished his account over time. He says there is a substantial difference between embellishment and an untruth. The death of the workmate was clearly a traumatic event and it would be reasonable for details to emerge over time. The basic facts had been consistent and regard should be had to the basic facts rather than to emerging peripheral facts where there is no inconsistency. 24 It was said that the failure to mention the owner of the walkie-talkie in the first instance and the detention of his work colleagues were not matters of such relevance that Mr Hamdi would not have failed to present them in prepared statements if they had occurred. It is not at all unusual for facts to emerge through rigorous examination and review, as any lawyer who has ever prepared a proof of evidence would be aware. Mr Hamdi was untrained in legal process and unaided in his statement to the UNHCR. Again, whilst these points may have merit, they are points which could or should have been made to the Refugee Review Tribunal and, in any event, they are points which go to the question of merits. 25 I mention also the Tribunal's findings that Mr Hamdi has a low profile in the FIS. It is said in the submissions that it does not logically follow from this that he is not thereby at risk. The Tribunal has found that attacks upon dissenters are random. That is a reference, I gather, to the random round-up of young Muslim men following the mosque meeting referred to in 1993. The Tribunal has also found that he had been detained on a previous occasion. It is asserted again on behalf of Mr Hamdi that given the high profile position he took in Indonesia he is at greater risk of being detained and killed or injured in a random act. There are similar submissions to the same effect, which again go to the merits of the Tribunal's finding. 26 In relation to the issue of his passport in 1993, and the non-use of that passport, other than on the occasion of the visit to Tunisia, it is said the fact that it has not been used other than on that occasion was consistent with his explanation that it had been confiscated. 27 He argued that the Tribunal found that authorities tried to arrest him at the same time as saying that he was not sufficiently prominent to attract the authorities' attention. Again he makes a point going to the merits when he asks rhetorically, "Do you believe the person in this position can be returned to his country when the authorities took this action to arrest him?" As counsel observed, this appears to be a misapprehension of the Tribunal's findings. There is no finding that the authorities had sought to arrest Mr Hamdi in 1997. 28 There is reference to the Tribunal's finding that Mr Hamdi was, to some degree, an FIS supporter. In those circumstances, it is said, there was a real risk that he would have a political opinion imputed to him; namely, support of FIS as a reason to have avoided military call-up. That being so, there is a risk identified by Dr Sadiki at p 15 of the Tribunal's decision, of military commanders or the police force taking justice into their own hands. Similarly, it was said, the Tribunal had conceded that there was an ongoing spiral of violence but had ignored Mr Hamdi's admitted support of the FIS. 29 In making its findings the Tribunal was said to have failed to properly appreciate the volatile nature of Algerian politics and the risk of renewed violence. I have no doubt that there will be occasions when the Refugee Review Tribunal in the assessments that it makes of a country's situation based as they are on a mosaic of factual materials from various reports, will err factually and such error may have significant consequences. However, the process of review for which the law presently provides, in effect, cuts off merits review at the level of the Refugee Review Tribunal and beyond that makes review available only through the Court process and on the limited basis of what might broadly be described as a reasonably tightly constrained list of errors of law and procedure that are set out in s 476. 30 Plainly enough there has to be a cut-off in merits review at some point and there are policy reasons related to that upon which it is not appropriate for this Court to reflect. Notwithstanding the careful submissions prepared by Mr Curthoys which have helped me at least to understanding of the applicant's position with respect to the Refugee Review Tribunal decision, there is no relevant error of law or procedure which is disclosed and the application will be dismissed. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.