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[2002] FCA 844
Federal Court of Australia
2002-07-03
Hely J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant is a citizen of Algeria. He was born in Morocco in 1964, where his parents had fled as refugees from the Algerian war of independence. When the applicant was about four years old his family returned to Algeria and lived in a town about 80 kilometres south-west of Oran. 2 The applicant left Algeria in 1987, when he was about 23 years of age. He returned to Algeria in 1989 for a period of two weeks. He found the atmosphere very tense because Islamic extremism was increasing. In a statutory declaration filed in support of his application the applicant said that he found that the country had turned increasingly towards Islamic fundamentalism. He stated: "As I do not practice any type of religious beliefs and indeed do not have any type of religious affiliations, I was perceived as antagonistic to Islam and its values and that left me exposed to persecution." Later in the statutory declaration the applicant said that he is a strong believer in atheism and totally against any form of fundamentalism, let alone Islamic fundamentalism. In a document sent to the Refugee Review Tribunal ("the RRT") on 5 March 2002 the applicant referred to his "antagonism to all forms of religion". 3 One of the reasons the applicant said that he left Algeria was the lack of freedom of expression. He left because he believed that he would be in danger if he spoke up about human rights abuses, although he said he had always been careful in the past. 4 Between 1989 and 1992 the applicant resided mostly in Switzerland and New Caledonia. He has resided illegally in Australia since 1992. He was detained by immigration officials in September 2001. He then discovered that his right to return to Switzerland and New Caledonia had expired. Confronted with the imminent prospect of being returned to Algeria, he applied for a protection visa on 16 October 2001. 5 On 11 September 2001 the Department of Immigration & Multicultural Affairs ("DIMA") commenced arrangements to obtain an Algerian travel document for the applicant. The application for a protection visa was refused by the Minister's delegate under cover of a letter dated 23 November 2001. In the decision record the delegate stated: "… on 19 September 2001 the Department wrote to the Jakarta office in regard to obtaining an Algerian passport and to date there is nothing [to] indicate that a passport will not be able to be obtained. This was confirmed by a Compliance Officer from the Rocks Office." Before the RRT the applicant contended that the Algerian government had refused to issue him with a travel document hence he would not be permitted to enter Algeria, but apart from the lapse of time, and the absence of any response to DIMA's request, the "refusal" of the Algerian government to issue a travel document was not established. The RRT said: "There is no evidence before the Tribunal to support the applicant's assertion … that the Algerian authorities have refused to issue a passport to the applicant. In fact, it appears that the request has simply not been actioned. The Tribunal is unable to infer from this that the Algerian authorities have imputed an adverse political opinion to the applicant." 6 The RRT affirmed the decision not to grant a protection visa to the applicant on 14 March 2002. 7 The RRT summarised the applicant's claims to refugee status as follows: "He fears that he will come to the attention of the authorities on return to Algeria because of his long absence and his irregular departure. He claims that he will be suspected of holding political views in opposition to the government, and that this will result in him being questioned in circumstances which will constitute persecution. He also claims that he is at risk of persecution by the armed Islamic groups on the basis that these groups have issued threats against 'infidels', and do not distinguish between Muslims and non-Muslims, or foreigners and citizens. Also, he claims that he faces persecution from these groups as a person who does not support Islam." 8 The RRT accepted that the human rights situation in Algeria is poor, and that despite some improvements in the last two years, human rights abuses carried out by the security authorities and armed insurgent groups still occur on a large scale. The RRT quoted extensively from a letter from Amnesty International to the effect that the conflict between the security forces and Islamic fundamentalists had resulted in massacres, "disappearances", abductions and reports of torture. The letter states that in total, about "… 100,000 civilians, terrorists, and security forces were killed from 1990 to 1998". 9 The RRT also quoted extensively from the US State Department "Country Reports on Human Rights Practices" for 2000 to similar effect. The Report included the following: "The country's 9-year civil conflict has pitted self-proclaimed radical Muslims against the general Islamic population. Approximately 100,000 civilians, terrorists and security forces have been killed during the past 9 years. Extremist self-proclaimed 'Islamists' have issued public threats against all 'infidels' in the country, both foreigners and citizens, and have killed both Muslims and non-Muslims, including missionaries. The majority of the country's terrorist groups do not, as a rule, differentiate between religious and political killings." 10 The RRT said that it could well understand the applicant's reluctance, even fear, to return to a country from which he has been absent for well over 10 years; which has been embroiled in extremely violent civil conflict for much of that period; and which has an appalling human rights record. However, the RRT concluded that there was no evidence before it which would support a conclusion that the applicant faces a real chance of persecution for a Convention reason in Algeria, either at the hands of the Islamist groups, or the government authorities. 11 The Amended Application filed under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"), under the heading "Grounds", asserts that the RRT failed to exercise its jurisdiction by: (a) failing to consider the applicant's claim that he was an atheist; (b) failing to consider the claims and evidence put before the Tribunal to the effect that people considered to be "infidels" by Islamic extremists were in danger of persecution; (c) failing to consider according to law whether the denial of freedom of expression amounted to persecution in the particular circumstances of the applicant; (d) failing to consider claims which arose on the evidence before the RRT, being: (i) whether the Algerian government's non-issue of a passport to the applicant meant that the applicant would be unable to enter Algeria ; (ii) if so, whether denial of entry in itself is persecutory; (iii) if so, whether the non-issue of a passport and the consequent denial of entry into Algeria is referable to a suspicion held by the Algerian authorities about long-term expatriates as a group; (iv) whether an attempt to enter Algeria without a passport would itself give the applicant a profile which would cause him to be persecuted; (e) failing to consider whether it would be reasonable in all the circumstances for the applicant to relocate to and confine himself within a city considered safe by the RRT. Ground 1(b) was abandoned by the applicant's counsel at the beginning of his oral submissions. 12 It is common ground that the decision in the present case is a "privative clause decision" as defined in s 474(2) of the Migration Act 1958 (Cth) ("the Migration Act"), hence s 474(1) applies to the decision. In the Minister's submission it follows from the decisions in cases such as NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 (Allsop J) and NADO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 797 (Gyles J) and from other cases referred to in those decisions, that a decision made under the Migration Act not to grant a protection visa will only be set aside as invalid where it is established that there has been a lack of good faith on the part of the decision-maker. 13 On the other hand, the applicant contends that the RRT has failed to address the claims identified in the amended application, and has thereby committed jurisdictional error: see Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 at [292]; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 at [42]. In the applicant's contention the privative clause does not validate a decision infected by what would otherwise involve jurisdictional error (in the sense used in Craig v State of South Australia (1994-1995) 184 CLR 163 at 179), where such error goes to the satisfaction or otherwise of an essential precondition to the exercise of the power in question. 14 A submission to like effect was specifically rejected by Allsop J in NAAG (supra). At par [61] his Honour said that the intention of Parliament was to widen the authority of the RRT by making valid a decision bona fide undertaken in exercise of the power of review under ss 414 and 415 and which is reasonably referable to that power. His Honour said: "That authority will be lawfully executed if a bona fide attempt is made to exercise it. It is not required that the attempt to exercise the power be complete, as it was required to be before the introduction of the provision widening authority." 15 Other decisions of single judges of the Court have taken a different approach to that taken by Allsop J. The decisions which favour each approach have been conveniently tabulated by Kenny J in Zhaou v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 748 at [72] and [74]. The decision of Allsop J was given after a review of most, if not all, of the first instance judgments which have reached or suggested a different conclusion. 16 A specially constituted Court of five judges has been convened with a view to resolving the differences of opinion which have emerged in the first instance decisions. The applicant submits that I should postpone delivery of judgment in the present case until the Full Court gives its decision. It is not known when the judgment of the Full Court will be forthcoming, nor is it known whether special leave to appeal to the High Court from that decision will be sought or granted. In those circumstances, I do not think that it is appropriate to defer a decision in this case until the validity and effect of s 474 is finally adjudicated upon. In NADO (supra) Gyles J also declined to follow the course suggested by the applicant. The decisions of Gyles J and Allsop J to which I have referred are directly in point, and were given after a review of other decisions at first instance which favoured a different approach. I have held in other cases that in these circumstances I should follow the decisions of Gyles and Allsop JJ, with which I respectfully agree, unless and until the Full Court decides otherwise. I propose to follow that course here. 17 It was not suggested by the applicant that in the present case there was any want of good faith on the part of the RRT. It is clear beyond argument that the decision relates to the subject matter of the Migration Act, and that it is reasonably capable of reference to the power given to the RRT. In those circumstances, the practical effect of the privative clause is that the application should be dismissed. 18 In Turcan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 397 Heerey J held at [46] that the correct approach to an application under s 39B of the Judiciary Act in relation to a decision by the RRT not to grant a protection visa is to first consider whether s 474 applies: "If it does, the Court need not, indeed should not", go any further. That approach was endorsed by Gyles J in NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 539 at [6] and reiterated by Heerey J in SBAP v Refugee Review Tribunal [2002] FCA 590 at [45]. A different approach was taken by Merkel J in Alam v Minister for Immigration & Multicultural & Indigenous Affairs[2002] FCA 630 where his Honour thought it appropriate to consider the merits of the contention that jurisdictional error had been established before considering the operation of s 474. On the facts of that case jurisdictional error was not established, hence it was not necessary to consider the effect of s 474. 19 In the present case I have heard argument from both sides as to whether the RRT's decision involved jurisdictional error. Whilst it is not necessary for me to decide that question in view of my conclusion as to the effect of the privative clause, I think that it is convenient that I should do so, as it may be a live issue depending upon the decision of the Full Court. I respectfully agree with Merkel J that I am entitled to determine both questions if that seems to be the sensible thing to do in the circumstances of the particular case. In my assessment, for reasons which follow, the applicant's case that the RRT's decision involved jurisdictional error is a weak one, and there may be some benefit to the parties if I explain my reasons for holding that view.
1(a) Atheism 20 The applicant contends that the RRT failed to address his claim that he has a well-founded fear of persecution because he is an atheist. The applicant claimed that he was at risk from armed Islamic groups as he would be seen as an infidel, or as someone who does not support Islam. An infidel is a person who does not believe in religion, or in a particular religion; an unbeliever: The Concise Oxford Dictionary, p 606. In a Muslim country an "infidel" would include a Christian, as well as an atheist or an agnostic. 21 The RRT did address this claim. Under the heading "Findings and Reasons", the RRT noted: "He also claims that he is at risk of persecution by the armed Islamic groups on the basis that these groups have issued threats against 'infidels', and do not distinguish between Muslims and non-Muslims, or foreigners and citizens. Also, he claims that he faces persecution from these groups as a person who does not support Islam." 22 The RRT accepted that: · the applicant does not practice any religion; · the applicant is opposed to fundamentalist Islam and to the activities of the Islamist groups; · that Algeria is an overwhelmingly Muslim nation in which Islam is the state religion; and · not practising Islam in Algeria might lead to some personal, legal and social problems for the applicant. 23 Nonetheless, the RRT was not satisfied that this claim was made out as: · the problems which the applicant might encounter are not of sufficient gravity to constitute persecution; · the authorities respect the privacy of an individual's religious practice and do not enquire into this; · the applicant, as a person practising no religion is in a different position from someone who had converted from Islam and was actively practising a new faith. Although the RRT accepted that at least one group had threatened to kill infidels, there was no evidence that ordinary Christians or people who practised no religion have been targeted by these groups in recent years; · at least three major cities are in any event relatively calm, free from terrorist attacks and safe for Christians - and the applicant could reasonably settle in one of those. There would be no real chance that the applicant would face persecution by Islamist groups (anywhere in Algeria) for failing to practice Islam, but that would be so "particularly if he were living in one of those cities"; · the RRT was not satisfied that the applicant would express his opposition to fundamentalist Islam and the activities of the Islamist groups, nor that his views would be apparent, such that he would be targeted by those groups - particularly if he was living in one of the specified safe cities in which the RRT found the applicant could settle; · the RRT was further satisfied that the "vast majority of the current attacks on civilians are indiscriminate; that no particular group, apart from those connected with the security forces … is targeted; and that the attacks are designed to create fear and chaos". That led to two further findings, namely that:
1(d) Refusal of a passport 26 The applicant claims that the RRT has "missed a pertinent issue", namely what can or may be inferred from the failure to action the request for a passport. The submission proceeds: "A consequence of not being issued with a passport may well be that the applicant is unable to avail himself of such 'protection' as Algeria can offer, in that he may not be permitted to enter. If he is unable to enter Algeria, would that in itself amount to persecution? Would the reason for such detriment be because the Algerian authorities recognise expatriates as a particular social group? There is an additional question - would the applicant's attempt to enter Algeria without a passport raise the suspicions of the authorities and cause them to interrogate him ruthlessly because of those suspicions. It is submitted that these questions arise on the evidence and the Tribunal's findings, but were not addressed." 27 This submission goes beyond the claims articulated by the applicant and involves the proposition, for which there is no factual foundation, that the Algerian authorities recognise expatriates as a particular social group. This is not a case, like Sellamuthu (supra) where a jurisdictional error may arise by reason of failure to deal with a manifest but un-articulated case, as the case now put was not manifest on the materials before the RRT. In Minister for Immigration & Multicultural Affairs v Islam [2001] FCA 1681 at [17] the Full Court quoted, with evident approval, the observations of Wilcox J in Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85 at [13]: " … in common with other members of the Court, I have also said that it is no part of a tribunal's function to make good a case claimed by the applicant. Still less would it be part of a tribunal's case to make good a case, which the applicant has not articulated, only because there is some evidence of elements of a claim." 28 In the present case, the commencing point for the hypothesis which the applicant has constructed is that the Algerian authorities had refused him a passport. The RRT rejected the applicant's claim that the Algerian authorities had refused him a passport and found that the application had not been actioned, adding that it was not satisfied that this was because of any imputed political opinion. Having made those findings, the RRT was not obliged to consider hypothetical possibilities based upon different scenarios from the scenario which the RRT accepted. 29 There was no failure by the RRT to consider the applicant's claims in this respect.
1(c) Denial of freedom of expression is persecution 30 The RRT accepted that the applicant is opposed to the present government of Algeria and its policies. Nonetheless, it was not satisfied that the applicant had a well-founded fear of persecution at the hands of the authorities by reason of his political opinion as: · the RRT was not satisfied that if the applicant were to return to Algeria he would express those views, or that he would be imputed by the authorities to hold such views, or that he would otherwise establish a profile such as to give rise to a real chance of persecution; · the applicant had said that he had not encountered difficulties before as a result of expression of his political opinion because he was "careful". The RRT was not satisfied that he would be less careful if he returned or that the requirement to be careful would itself so affect his human rights as to amount to persecution; · the applicant would not engage in political activity if he were to return to Algeria as he had not done so in the past, whether before or after his departure from Algeria; · the applicant is not a political person, albeit that he may be committed to fundamental standards of human rights; and · the applicant's concerns over the years have been to work and live as a normal citizen in the countries in which he has resided. Any restrictions which may be imposed on the freedoms to which the applicant has become accustomed while living outside Algeria would not impose such a burden on him as to constitute persecution. 31 The applicant told the RRT that he values his freedom of expression, that he left Algeria partly because of restrictions on that freedom and that his experiences in Western democracies have made him more outspoken. A commitment to fundamental standards of human rights is said to be sufficient to make the applicant a "political person". 32 In the light of that evidence, the applicant contends that the RRT's conclusions are wrong, that the RRT has again failed to address his claims and has committed a jurisdictional error. Moreover, in the applicant's submission, the test for the circumstances in which denial of a fundamental human right constitutes persecution was stated in Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132 by Madgwick J at [20] as follows: "The principle, it seems to me, is that a denial of such civil rights would amount to persecution when that denial is so complete and effective that it actually and seriously offends a real aspiration so held by an asylum seeker that it can be fairly said to be integral to his or her human dignity. It is not fatal to such a claim of persecution that the claimant fails to show that he or she is a leading exponent of a claim to, or the wish to, exercise such rights, let alone that he or she exhibits a capacity for martyrdom. The Convention aims at the protection of those whose human dignity is imperilled, the timorous as well as the bold, the inarticulate as well as the outspoken, the followers as well as the leaders in religious, political or social causes, in a word, the ordinary person as well as the extraordinary one. But, of course, the Convention did not aim at providing a universal right to change countries for every inhabitant of every oppressively ruled society on earth, however important civil and political rights may, as a matter of mere intellectual persuasion, be to such an inhabitant. The Convention was intended to relieve against actual or potentially real suffering." 33 In the applicant's submission, there is no indication that the RRT appreciated that this was the correct test or that the RRT sought to apply it. To consider whether a denial of a fundamental human right was persecutory, the RRT would have had to have assessed the detriment against the applicant's stated commitment to human rights. The applicant submitted that in failing to do so, the RRT did not assess whether the applicant had a well-founded fear of persecution (or it failed to ask the correct questions) and thus failed to exercise its jurisdiction. 34 A failure to consider relevant considerations is not made out simply by a failure on the part of the RRT to mention specifically each piece of evidence that was before the RRT with respect to a particular matter. Rather, the RRT is required to address the elements or integers of the applicant's claims: Paul v Minister for Immigration & Multicultural Affairs [2001] 64 ALD 289 at 312. 35 Whether harm is sufficiently serious to amount to persecution is ultimately a question of fact and degree for the RRT to assess, having regard, inter alia, to the provisions of s 91R of the Migration Act. In Win (supra) Madgwick J made it plain at [18] and [19] that a denial of freedom to express one's political opinion may not necessarily be sufficient to establish refugee status, if only because it will generally also be necessary to ascertain the importance that the asylum seeker places on the exercise of the particular right which is denied to him or her. 36 The RRT did not assert that denial of freedom to express one's political opinion was incapable of constituting persecution. Rather, the RRT embarked upon an assessment of the prejudice to this particular applicant if his freedom of speech on human rights and political issues was constrained by the need to be careful before expressing his views. In the RRT's assessment, the applicant was not a person who was so politically active that these constraints would be a real burden for him. The RRT has considered the importance of the right to the applicant, and in so doing has derived support from his actions both before he left Algeria and since. It may be that the RRT's assessment does not accord with the applicant's "stated commitment" to human rights, but that is insufficient to establish that the RRT failed to exercise its jurisdiction, or failed to decide the issue according to law. 37 This ground is not made out.
1(e) Relocation 38 The RRT was satisfied on the basis of country information that at least three major cities - Algiers, Constantine and Oran - are relatively calm, free from terrorist attacks, and safe for Christians. 39 At RD 277 the RRT said: "The Tribunal notes that the applicant formerly resided close to Oran, and as far as he is aware, his family still lives in that region. Given the applicant's ability to resettle in numerous countries since his departure from Algeria in 1987, his qualifications in nursing and his level of sophistication, the Tribunal is satisfied that he could reasonably settle in one of these cities were he to return to Algeria. The Tribunal is satisfied that there is no real chance that the applicant would face persecution by Islamist groups as a result of his failure to practice Islam, particularly if he were living in one of these cities." (emphasis added) 40 The applicant submits that the RRT has failed to decide this issue according to law, as a failure to address the claim that the applicant is an atheist infects this finding. In addition, the applicant submitted that the RRT did not consider the reasonableness of this alleged option, as it was obliged to do, considering that the applicant had not lived in these places before. See Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; Perampalan v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274. 41 I have already rejected the applicant's contention that the RRT failed to address the claim that he is an atheist. The RRT considered his position as an "infidel". 42 In the passage quoted above, the RRT clearly did consider the reasonableness of relocation, as it was required to do, and made factual findings upon that question which were open to it. The relocation findings were an alternative basis for the RRT's decision as, on the RRT's findings of fact, the applicant did not need to relocate. It follows that even if there were an error of law infecting the RRT's relocation finding, that would be of no assistance to the applicant unless the RRT's findings that he does not have a well-founded fear of persecution for a Convention reason if returned to Algeria were set aside. Accordingly, this ground is not made out. 43 The application should be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.
NAFA
Minister for Immigration & Multicultural & Indigenous Affairs
[2000] FCA 85
(1999) 90 FCR 287
(1994) 52 FCR 437
(1999) 84 FCR 274