Mehenni v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 By his amended application filed on 30 April 1999, Mr Mehenni seeks an order setting aside a decision of the Refugee Review Tribunal made on 27 January 1999. By that decision the Tribunal affirmed the decision of a delegate of the Minister to refuse Mr Mehenni's application for a protection visa. The grounds of the amended application are that procedures required by the Migration Act 1958 (Cth) to be observed in connection with the making of the Tribunal's decision were not observed (s 476(1)(a)) and that the decision involved an error of law (s 476(1)(e)). The former ground relies on a claim that the Tribunal did not observe the requirements of s 430(1)(c) of the Migration Act; the particulars of that ground are: "The Tribunal failed to make findings on the question of fact as to whether the applicant had a genuine conscientious objection to performing military service in Algeria, and whether he thereby faced persecution by reason of his membership of a particular social group or political opinion." 2 The particulars of the alleged error of law are similar: "The Tribunal failed to consider whether the applicant, by reason of his conscientious objection to performing military service in Algeria, faced persecution on the grounds of membership of a particular social group or political opinion."

Facts: Tribunal's findings 3 Mr Mehenni is an Algerian national. He is aged 28. He arrived in Australia, from South Africa, on 10 October 1998. He claimed to have been a successful student: in 1989 he went to the then Soviet Union where he studied electrical and mechanical engineering at a university in the Ukraine. He completed his undergraduate course and commenced studies for a master's degree. However, he claimed, the introduction of a requirement that fees be paid resulted in his discontinuing the course; in 1996 he travelled to Yemen where he taught mathematics for a year. From there, in November 1997, he travelled to Ethiopia and then, by land, to South Africa. He said that he applied there for acceptance as a refugee and was permitted to work (though he did not obtain employment). Concerns for his safety, and about the adequacy of South African protection, led him, he said, to leave for Australia before his application had been considered: he acquired a false passport and travelled to Australia on a South African Airways flight. 4 The Tribunal accepted evidence that under Algerian law men of military age were liable to conscription and that the Algerian army continued "to confront armed Islamic groups". Deferral of military service obligations was permissible under Algerian law in certain circumstances, including for the duration of certain courses of study. Mr Mehenni obtained a deferral until December 1994. While studying in the Ukraine he had returned to Algeria for brief periods during vacations; he returned for the last time in September 1994. Mr Mehenni claimed that he did not wish to return to Algeria because he would be conscripted and he did not wish to become a tool of what he described as an undemocratic regime in its campaigns against the Islamic opposition groups. He feared that he would be regarded by the authorities as a deserter, because he had not returned and because he had refused a request that he work for Algerian intelligence in Yemen. He said that he feared harsh punishment on that account; he feared also that, if conscripted, he would be regarded by the Islamic groups as a supporter of the government and would be targeted by them. 5 Except in relation to evidence about the basis on which one of his brothers had avoided conscription, the Tribunal regarded Mr Mehenni as a credible witness and substantially accepted his evidence. Particularly, the Tribunal found that Mr Mehenni was approached to provide information on Algerian expatriates in Yemen, that he did not provide the information sought and that he tried to avoid contact with the consular official who had approached him. The Tribunal found, however, that this was unlikely to have brought him to the adverse attention of the Algerian authorities. It found also, on the basis of country information, that the conscription laws were applied in a non-discriminatory way and that deserters or draft evaders were not subjected to excessive or inhumane punishment. It found also that he would be no more singled out by Islamic groups than other conscripts in the army which was fighting those groups. Accordingly, the Tribunal upheld the decision not to grant Mr Mehenni a protection visa.