NAFA v Minister for Immigration & Multicultural & Indigenous Affairs

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.