"SAAH" v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT THE COURT: 1 The appellant has appealed against a decision of the primary judge (Finn J) dismissing his application to review a decision of the Refugee Review Tribunal ("the RRT"), which affirmed a decision by the delegate of the respondent not to grant a protection visa to the appellant. 2 The appellant applied for the protection visa on the ground that he is a refugee as defined in Art 1A(2) of the Refugees Convention as amended by the Refugee Protocol as he has a well-founded fear of persecution if he were to return to Algeria, his country of nationality. 3 The primary judge summarised the appellant's claims as follows: "That the Algerian Government would persecute him because he failed to respond to a call up notice issued in late 2000; That he would be persecuted because of his Berber ethnicity; and That because he had been conscripted into the Algerian army, he was at risk of persecution by Islamic terrorists and the Algerian government would fail to protect him." 4 His Honour observed that the claims were rejected by the RRT for "reasons related, variously, to credibility, inconsistency with country information and to not demonstrating persecutory conduct in fact". 5 The appellant represented himself before the primary judge and, rather than identifying expressly a ground of review under s 476(1) of the Migration Act 1958 (Cth) ("the Act"), he re-iterated his claims to refugee status. Nonetheless, his Honour carefully considered the reasons of the RRT and found no reviewable error. 6 The primary judge found that the RRT's rejection of the applicant's claims of army persecution and that concerning Berber ethnicity did not involve any reviewable error and no issue is raised on the appeal concerning his Honour's decision in that regard. 7 The third claim, which related to fear of persecution by terrorists on account of military service, was described by the RRT as the appellant's "strongest claim". It was common ground that that claim was a claim of a fear of persecution by reason of an imputed political opinion. The claim was summarised by the RRT as follows: "[t]errorists came looking for him in September and October 1998. They were following him to kill him. To this point, he responded 'yes, they came to the house'. He complained to the government but nothing was done, and sometimes the government gave his name to terrorists. To this point he said 'yes, they said they could not provide me with protection'. He hid at his sisters' houses. He then found a job as a driver for a dairy factory. The terrorists continued to follow him and came to the factory looking for him. He hid again until he left the country. He was recalled to the army, but did not go, and now fears he will be killed by the government as a result. To this he said, 'if I did go back, my family would be killed by terrorists and I would die in the army'. He also thinks the government or the terrorists will kill him because he is a Berber, to which he added that the terrorists would also wish to kill him because he was in the army. … The Tribunal asked if he wished to add anything. He said that, when one is conscripted into the army, the government will give your name to the terrorists. He said that, in Ain El Hammam, the names of those who are conscripted have their names written on wall posters by the terrorists. The Tribunal asked how he knew that the government gave names to the terrorists, adding that it seems implausible that a government would assist the terrorists in that way. The applicant said that there was no other way the terrorists would get the names." 8 The RRT referred to a substantial body of conflicting independent country evidence on the question of terrorist violence, including reprisals against former conscripts. The primary judge, who expressed some concern about the manner in which the RRT considered that information, observed that the latest of the reports noted an upsurge in violence in the year 2000 and that two of the reports suggested that terrorist attacks had become more localised in rural areas and smaller towns. His Honour accepted that, for "quite unimpeachable reasons" the RRT rejected the appellant's factual assertion that the government provided the names of conscripts to terrorists. 9 In rejecting the applicant's claim to having a well-founded fear of terrorist attacks on him as a conscript, the RRT appeared not to have specifically addressed the fact that the appellant was living in a village in a rural area and that the country information suggested that in such areas, rather in the larger cities and townships, conscripts had been subjected to violent reprisals. 10 The primary judge raised that issue with counsel for the Minister who said the RRT was entitled to deal with the case put by the appellant and that that case was not based on his residence in a rural area and on the government's refusal or inability to afford protection against attacks in such areas. 11 Counsel's submission, which was accepted by his Honour was expressed as follows: "The Tribunal here, it is said, gave its decision on the case put to it: it rejected the factual assertion that the government was supplying names to terrorists; it illustrated the protection afforded by the government by reference to the applicant's own knowledge and experience of persons in his own locality who had been killed by terrorists; it accepted that terrorists may have been interested in him between September 1998 and July 1999 but that he made no claims of terrorist interest thereafter, and it attributed significance to the passage of time (three years) since he finished his military service; it likewise accepted the by no means uncontentious strand in the country information that there was now no firm evidence of individuals being targeted by terrorists, ["SAAH"] having founded his claim on such targeting. In light of the case put, it was submitted that the findings made were reasonably open to the Tribunal and its apparent omissions in considering other matters were of no significance for judicial review purposes." 12 The primary judge stated: "For my own part I consider that this submission should be accepted. It is open to real question whether a differently constituted Tribunal would, as of course, have reached a like conclusion as to the significance of what the country information suggested. But having derived from it what it did, the form of speculation the Tribunal engaged in was open to it as were the conclusions at which it arrived, having regard to its view of the country information, to the way ["SAAH"] put his claim (ie individual targeting and lack of government protection) and to ["SAAH"] own evidence concerning his knowledge of terrorist action in his own locality and of the period of terrorist interest in him. The conclusions arrived at were reinforced by the time that passed before ["SAAH"] started to plan to leave Algeria." 13 On the appeal the appellant was represented by counsel acting under the Court's pro bono scheme pursuant to O 80 of the Rules of Court. The issues raised on the appeal are whether: Ÿ the decision was based on the existence of a particular fact which did not exist, namely that the Canadian report cited by the RRT "indicates that there is no firm evidence of individuals being targeted by terrorists today" whereas, so it is argued, the report did not contain any such statement; Ÿ the RRT was required to, but did not, deal with the appellant's claim on the basis of his rural residence and the government's inability to protect him, alternatively, the RRT was obliged to deal with that claim which was raised by the evidence or material which the RRT accepted or which it did not reject. 14 We turn first to consider the "no evidence" ground which the appellant sought leave to raise as a ground of appeal. As the leave was not opposed and the appellant was not represented before the primary judge it is appropriate to grant leave to argue this ground. 15 Section 476(1)(g) provides that a ground upon which the Federal Court may review a decision of the Tribunal is: "(g) that there was no evidence or other material to justify the making of the decision." Section 476(1)(g) is, relevantly, qualified by s 476(4)(b): "(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) ……………………… (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 16 In Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ("Al-Miahi") at paras [34] and [35] a Full Court stated: "The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place - Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6. Sections 476(1)(g) and 476(4) appear to have been intended to give effect to such principles. The application of s 476(1)(g) and s 476(4)(b) in any particular case requires the following steps: