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[2008] FCA 1885
Federal Court of Australia
2008-12-11
Buchanan J
Original judgment source is linked above.
REASONS FOR JUDGMENT BUCHANAN J: 1 The issue on which this judgment ultimately turns arises from a statement by the Refugee Review Tribunal ('the RRT') constituted under the Migration Act 1958 (Cth) ('the Act') that it preferred to rely, for information about conditions in Algeria, on information obtained through its own researches than on material supplied by the appellant. One report referred to, and relied upon by the appellant was actually the current and most up to date version of a report relied upon by the RRT. Did the RRT's unexplained refusal to treat the latest version of the report as the most relevant amount to jurisdictional error on its part? 2 The appellant arrived in Australia on 12 July 2005 and applied for a protection visa on 11 August 2005. His passport had been issued in Algeria on 8 August 2004 and was valid for five years. He said that he had never previously travelled outside Algeria. On 15 September 2005 a delegate of the first respondent ('the Minister') refused to grant a protection visa. The appellant sought a review of the delegate's decision by the RRT. The RRT affirmed the delegate's decision on 10 January 2006 ('the first RRT decision') but on 24 May 2007, by consent, the Federal Magistrates Court of Australia ('the FMCA') set aside the decision of the RRT and remitted the matter for further consideration. On 15 May 2008 the RRT (differently constituted) again affirmed the delegate's decision. On 12 June 2008 the appellant filed an application in the FMCA seeking judicial review of the second decision of the RRT. In the latest proceedings before the FMCA the appellant was represented by counsel. The grounds of the application for judicial review were amended a number of times. In a judgment delivered on 28 August 2008 the FMCA rejected the grounds advanced in the final amended application for judicial review (SZIGH v Minister for Immigration and Anor [2008] FMCA 1203). From that judgment the appellant has appealed to this Court. 3 Some opening observations are appropriate. First, an applicant for a protection visa must assume the task of persuading the relevant decision-maker that a proper foundation exists for the grant of the visa. A decision-maker is not obliged to uncritically accept every assertion made by such an applicant. Secondly, the merits of a decision on whether a protection visa should be granted are shielded by the Act from judicial review. Neither the FMCA nor this Court may substitute its own view of the merits of any application for a protection visa for that of the RRT. Thirdly, the only basis upon which a decision to refuse a protection visa may be successfully challenged in the FMCA or in this Court is if jurisdictional error appears from the decision or processes followed by the RRT. 4 In the present case the appellant was not believed. There were a number of reasons why that was so. Prior to the second hearing before the RRT an email purporting to be from the appellant's brother was sent to the RRT. That email alerted the RRT to the fact that the appellant had sought refuge in Thailand in 2000 and made further allegations against him. Although the RRT decided it was not in a position to substantiate the further allegations and therefore decided not to take them into account it did make enquiries of the office of the United Nations High Commissioner for Refugees ('the UNHCR'). One matter disclosed by those enquiries was raised with the appellant in an oral hearing conducted before the RRT on 6 December 2007. The RRT in its decision, refers to it in the following terms: I asked him about the claim in his visa application that he had never been convicted for a crime or offence. Initially, he said that he had not, but, when I said he was not telling me the whole story, he admitted that he had been convicted in Thailand of using false documents and had been sentenced to 18 months imprisonment. After he served his sentence, he applied to UNHCR for protection. The charge of using false documents arose from the fact that, on arrival in Bangkok, he had obtained a new and false passport in an attempt to reach Canada. His first port of call was Hong Kong, where the false passport had been discovered and he had been sent back to Thailand, where he was arrested. 5 The appellant's response to the RRT appears also to have falsified his response in his application for a protection visa where he indicated that he had not travelled outside Algeria prior to coming to Australia. 6 Other inconsistencies were drawn to the appellant's attention in a letter written by the RRT on 7 December 2007, the day after the hearing. In that letter the following was said: 'You are invited to comment on/respond to information that the Tribunal considers would, subject to any comments/response you make, be the reason, or a part of the reason, for affirming the decision that is under review. The particulars of the information are: • The statement you made to the UNHCR in Bangkok in July 2001 differs in important respects from what you have claimed during your application for protection in Australia. Specifically, Ø The family member you claim was killed by terrorists was, according to what you told the UNHCR, the son of an aunt, that is, a cousin, not a nephew, your sister's son, as you now claim. Ø According to your statement to the UNHCR, the statement at his funeral critical of terrorists was made by your father, not yourself. Ø In your statement to the UNHCR, you claim that the attempt to steal your truck in March 1999 was reported in the local press, which described you as a hero. This element of the story has not been repeated in Australia. Ø In your statement to the UNHCR regarding this incident, you said you were able to prevent the robbery of your truck. In your statement of 5 December 2007, you claim it was stolen. Ø In your statement to the UNHCR, you referred to two incidents in which you were followed by unidentified men at night in September and November 1999. In your statement to the Tribunal of 5 December 2007, you refer to only one. Neither of these incidents were mentioned in your primary application. Ø In your statement to the UNHCR, you stated that your grandfather could not be buried in the communal cemetery. In Australia, you have stated that your father could not be buried in the communal cemetery. Ø In your statement to the UNHCR, you claimed that all of your family members were Catholic, except your mother. In the statement attached to your primary application, you claimed that your brothers were Christian and that 3 sisters were Muslim, the remainder being Christian. • The priest who gave evidence at your hearing stated that you converted to Catholicism at Easter time this year. He told the presiding Member that, previously, you had no faith. However, you told the presiding Member of the Tribunal at your hearing on 17 November 2005 that you converted to Christianity in August 2004. You had told the UNHCR in Bangkok that you and your siblings were Catholic by birth. In your primary application, the statement attached to it has an entire section headed "My Christian Religion". • The statement in Attachment 10A to your adviser's submission of 9 July 2007 is not consistent with the Statutory Declaration sworn by you on 5 December 2007 in that you stated in the Statutory Declaration that, a few weeks after lending your house to a group of Christians to hold meetings, the Christians left your village because they started to install a chapel in another village, whereas the document referred to is dated 3 April 2006 and states that you have lent your house to a group of Christians to teach and preach Christianity since 2 January 2003. There is no reference in the document to this arrangement terminating for any reason. At hearing on 17 November 2005, you stated "the house I gave up has become a church" without indicating that the arrangement had terminated. • At different times, you have referred to the house which was sued as a church as being "at the end of the village" (hearing 17 November 2005) or "in the centre of my village" (the statement attached to your primary application). This information is relevant to the review because: A. 1. The Tribunal may form the view that you are prepared to say whatever you believe may, at the time, help your application, irrespective of the truth. 2. The Tribunal may form the view that you have formalised your adherence to the Catholic faith recently, only after you failed to satisfy the presiding Member of the Tribunal previously constituted that you were in fact Christian and that you have done so only to further your protection visa application. 3. Your previous claims - to UNHCR and in your primary application - to be Catholic/Christian - as are most of your family - are not consistent with your recent claim that your mother held a party to celebrate your baptism. 4. The Tribunal may form the view that you are not truthful when you claim that you changed the dates on which your relative was killed only because you feared you would not be believed when you said that it was one of the reasons you feared persecution. The Tribunal may believe, on the contrary, that you realised you had to change the date on which this event occurred after the Tribunal discovered that you had claimed protection in Bangkok and made it clear to you that it would seek information from UNHCR as to what you had then claimed. 5. The Tribunal may form the view that you have merely "updated" the claim made to the UNHCR that your grandfather could not be buried in the communal cemetery, not claiming that this happened to your father and may not be prepared to accept either version. B. The above may form the reason or part of the reason for the Tribunal to decide that your claim to fear persecution is not well founded.' 7 Various responses were made by the appellant through his lawyers. The RRT's conclusions were expressed in the following way: 40. I accept that the applicant is a citizen of Algeria. 41. I do not accept most of the applicant's other claims. 42. With regard to the e-mail which alerted the Tribunal to the fact that the applicant had passed through the hands of UNHCR in Bangkok, that allegation provided to be true. The applicant's date of birth mentioned in the e-mail was also correct. However, the Tribunal received no reply to an e-mail sent to the author of the e-mail. I considered making contact with the alleged author by telephone, but decided, in light of all the material before me, not to do so. It seemed to me that the applicant's brother was hardly likely at this point in time to state that he had written what was contained in the letter. If he did, he could say that it was true - which would be immediately fatal to the applicant - or he could say it was false - which would still leave me with a decision to make as to his credibility, in light of all the other material before me. I decided, therefore, that the safest and fairest procedure was to disregard the allegations, which will therefore play no part in the analysis which follows or in the decision recorded here. 43. Despite the evidence of the witnesses as to the applicant's good character, the many inconsistencies in his claims over time fatally, in my view, undermine his general credibility. Some of the inconsistencies may, as he has claims, arise from language difficulties. I will disregard those. Others are not so easily explained, however. They have all been drawn to his attention. The principal ones are the following: (i) The family member the applicant claimed to UNHCR was killed by terrorists was his cousin - the son of an aunt; he claimed to the Department and to the Tribunal it was his nephew, the son of his sister. He also initially changed the dates on which these attacks were said to have happened. (ii) The statement criticising the terrorists was, according to the UNHCR claim, made by his father; according to his claims to the Department and to the Tribunal, it was made by himself; (iii) His descriptions to UNHCR, on the one hand, and to the Department and the Tribunal on the other, of the incident where his house was attacked by terrorists and an attempt made to steal a vehicle contain significant differences of detail; (iv) Similarly, there are differences in his claims at different times about being followed by unidentified men; (v) Statements made about the problems burying his grandfather and his father vary over time. He claimed to UNHCR that his grandfather could not be buried in the communal cemetery. He claimed to the Department and to the Tribunal that it was his father. However, even here, there were discrepancies. His Statutory declaration of 5 December states that his father could not be buried "in the family plot near the Mosque". At the hearing before the Tribunal previously constituted, according to the transcript submitted to the present Tribunal by the applicant, the Muslim community objected to applicant's father being buried about a hundred metres from the applicant's house, near where his mother was buried. Nevertheless, he was in fact buried there. (vi) The applicant's claims over time as to his religion have not been consistent. The problem was raised explicitly at hearing and clearly set out in the Tribunal's letter of 7 December 2007. 44. I have considered carefully the responses of the applicant and his adviser, which were supported by statutory declarations by the applicant and other documents, but I am not persuaded that their arguments overcome my concerns … 8 The RRT also said: 46. It is true, as the applicant's adviser points out, that the applicant has consistently claimed to be Christian and Catholic. However, the details of his claims in this respect have varied considerably over time - the date of his conversion, the number of Christian families in his village, the circumstances in which one of his family's houses was used for Christian services. He also showed to the Tribunal previously constituted a poor knowledge of the church to which he claimed to belong. 47. In the circumstances, I am not satisfied that the applicant was Christian in Algeria. I am not prepared to give weight to documents recently submitted indicating the contrary, given my serious concerns about he applicant's credibility in general, including in particular on this issue. Neither am I satisfied that the applicant has formalised his adherence to the Catholic faith while in Australia other than in furtherance of his claims to protection. In addition to my general concerns regarding his credibility, I am concerned that this religious activity in Australia appears to have largely followed his appearance before the Tribunal previously constituted, when he was unable to satisfy the presiding Member as to the genuineness of his claim to be Christian. In addition, he has not explained to my satisfaction the evidence of his priest that, prior to his conversion at Easter 2007, he had no faith, which contradicts much of his present and earlier claims. I will accordingly disregard this activity. 9 The RRT then dealt with a number of "independent" claims. It also made an assessment of country information submitted on behalf of the appellant and other country information in the possession of the RRT. Some further mention will need to be made of the way in which that information was assessed. 10 One further important finding was expressed as follows: I do not accept any of the applicant's claims regarding attacks on him or his family by terrorists. He has no credibility on this subject, his evidence over time being riddled with inconsistencies. I have nevertheless considered whether, for reason of his ethnicity, he might have a well founded fear of persecution by Islamic militants, but find that country information which I accept does not indicate that, merely be virtue of being Berber, there is a real chance that he would be harmed by militants. 11 I earlier referred to the fact that the grounds of the appellant's application for judicial review in the FMCA were amended on a number of occasions. The grounds which found final expression, and which were dealt with in the judgment of the FMCA, were stated as follows: 1. [Deleted] 2. The RRT failed to attain, or failed to exercise, jurisdiction, by reason that the RRT erred in law in failing to take into account a relevant consideration Particulars The RRT stated (CB 517, [50]): "While I have considered carefully country information submitted by the applicant, I prefer the assessment contained in the two reports of the United States State Department quoted above" The RRT ignored the country information submitted by the applicant (the International Religious Freedom Report which 2007 released on 14 September 2007, by the US State Department, Bureau of Democracy, Human Rights and Labour on Algeria; which information was later in time and also released by the same US State Department including: (CB 411.2): :During the reporting period, terrorist violence based on religious extremism increased after the GSPC was recognized by al-Qa'ida in September 2006 and changed its name in February 2007 to al'Qa'ida in the Islamic Maghreb (AQIM)". 3. The RRT failed to attain, or failed to exercise, jurisdiction, by reason that the RRT erred in law in constructively failing to exercise jurisdiction in (a) misconceiving its duty, (b) failing to apply itself to the question of whether the applicant was a person owed protection obligations in terms of para 36(2)(a), Migration Act 1958, and/or (c) acting capriciously and/or irrationally, in relation to "country information submitted by the applicant". Particulars Repeat Particulars at Ground 2. 12 The RRT decision on this aspect of the appellant's case was as follows: 50. While I have considered carefully country information submitted by the applicant, I prefer the assessment contained in the two reports of the United States State Department quoted above. In coming to that conclusion, I examined also reports in the French language (a language with which I am very familiar) of the activities of Christians in Algeria. For example, Valeurs Actuelles, in 2004, contained an article entitled "Avec les chrétiens de Tizi Ouzou, (With the Christians of Tizi Ouzou) which included the following statement (my translation): "The rejection of Islam is a reality in Kabylie and, I am told, is even gaining in the so-called "Arab" Algeria, beginning in the large cities, such as Algiers and Oran." (Emphasis added) 13 The FMCA concluded that the statement by the RRT that it had carefully considered the material relied upon by the appellant, but that it preferred the assessment in other reports, did not support a conclusion that the material relied upon by the appellant was ignored. The assessment of that material, so far as it bore upon the merits of the appellant's application for a protection visa, was certainly a matter for the RRT and is not a matter for the FMCA or for this Court. However, it will be necessary to return to this issue in more detail as the opening sentence of paragraph 50 requires closer examination having regard to the material in question. 14 The third ground relied upon before the FMCA was formulaic in nature and added nothing to the appellant's claims. 15 The appeal to this Court stated grounds rather more expansively in the following terms: 1. The Court erred in finding ([29]) that the Tribunal "did not ignore the 2007 information" Particulars The appellant pleaded (Ground 2 of Review Application) that the RRT failed to take into account a relevant consideration, being particularised information in the 2007 Report. The RRT expressly eschewed taking that information into account ("I prefer the assessment in the two reports (2006) of the United States Department quoted above") and the RRT thereby "ignored" the information in the 2007 Report. 2. The Court erred in finding ([35]), in the context of the information particularised in the 2007 Report (Ground 2 of Review Application), that "that information could not have affected the Tribunal's determination that the Applicant did not have a well-founded fear of persecution for a Convention reason". Particulars The Tribunal could have been satisfied that he increase of violence, apparently predicated upon al-Qaida's association with the GSPC, could have placed the appellant at risk post September 2006/February 2007, if not at risk before those dates, on account of his "westernisation". 3. The Court erred in finding ([41]) that the appellant "in relation to particular 15.3.8 seeks to articulate further social groups, again, without evidence of the existence of any such social groups or evidence of persecution by reason of membership of that social group" Particulars The social group relevant to the "westernisation" claim was identified as a group at risk of persecution in the 2006 Reports (Judgment, [25]) 4. The Court erred in finding ([44]) that "there was no country information before the Tribunal that suggested that State protection would not be afforded to the Applicant if he were attacked in Algeria by reason only of being a non-fundamentalist Muslim extremist" Particulars The 2007 Report stated that "approximately 100 thousand to 150 thousand civilians, terrorists and security forces have been killed during the past 15 years. Islamist extremists have issued public threats against all "infidels" in the country. Both foreigners and citizens, and have killed both Muslims and non-Muslims" (Judgment. [15.3.5]) 5. The Court erred in finding ([22]) that "Pursuant to s.91R(3) of the Act, the Tribunal is obliged to disregard that conduct" (i.e. "conduct" as referred to in Judgment, paras 15.1, 15.2, 15.3.1, 15.3.3 and 15.3.7) Particulars The RRT (Reasons for Decision; [47] confined the application of s.91R(3) to matters of baptism and practice of Catholicism by the appellant in Australia and not to other notions of "westernisation" raised by the appellant and/or acknowledged by the RRT. 16 At the hearing of the appeal Ground 5 was not pressed. Instead, leave was sought to rely upon a new Ground 6 in the following terms: 6. The Court erred in not finding that the Tribunal had failed to exercise its jurisdiction by failing to make a finding or findings, as implicitly, if not expressly, required by ss.91R(3). Particulars The RRT (Reasons for Decision; [47]) confined the application of s.91R(3) to matters of baptism and practice of Catholicism by the appellant in Australia and not to other notions of "westernisation" raised by the appellant and/or acknowledged by the RRT The Tribunal made no finding as to conduct engaged in by the appellant in Australia The tribunal made no finding as to whether the appellant engaged in that conduct otherwise than for the purpose of strengthening the appellant's claim to be a refugee.
Grounds 1 and 2 17 These grounds were argued together. Before they are evaluated for their legal significance it is necessary to say something about the nature of the material addressed by the opening sentence of paragraph 50 of the RRT decision and the preference which the RRT expressed for the "assessment" in country information contained in the two reports which it identified over country information submitted by the appellant. 18 The country material submitted on behalf of the appellant was quite extensive. I shall refer to it again shortly. By contrast, the only country information referred to by the RRT was contained in two Reports published by the US Department of State. They were an International Religious Freedom Report on Algeria released on 15 September 2006 ("the 2006 Religious Freedom Report") and a Country Report on Human Rights Practices concerning Algeria dated 6 March 2007 ("the Human Rights Practices Report"). 19 Each of those two reports gave information about the "Armed Islamic Group and its later offshoot, the Salafist Group for Preaching and Combat" ["the GSPC"]. For example, the 2006 Religious Freedom Report said, under the heading "Persecution by Terrorist Organisations": The country's decade-long civil conflict pitted Islamist terrorists belonging to the Armed Islamic Group and its later offshoot, the Salafist Group for Preaching and Combat, against the Government. While estimates vary, approximately 100 thousand to 150 thousand civilians, terrorists, and security forces have been killed during the past fourteen years. Islamist extremists have issued public threats against all "infidels" in the country, both foreigners and citizens, and have killed both Muslims and non-Muslims, including seven Trappist monks killed by Islamist terrorists in 1996. Extremists continued attacks against both the Government and moderate Muslim and secular civilians, with the level of violence slightly increasing during the reporting period. As a rule, the majority of the country's terrorist groups do not differentiate between religious and political killings. 20 In the Human Rights Practices Report it was said: During the year, according to the Ministry of the Interior (MOI) and press releases, the total number of terrorist, civilian, and security force deaths declined to 323 (compared to 488 in 2005, 429 in 2004, and 1,162 in 2003). Of these, the government stated that terrorists killed 54 civilians (76 in 2005) and 90 security force members (177 in 2005); security forces killed an estimated 179 suspected terrorists (235 in 2005). Terrorists targeted civilians, security forces, and infrastructure. Press reports estimated that 135 civilians and 174 members of the security forces were killed in terrorists attacks, most of which were attributed to the Salafist Group for Preaching and Combat (GSPC). These two paragraphs, amongst others, were quoted by the RRT. 21 The Human Rights Practices Report also said: Press reports indicated that the GSPC kidnapped approximately 55 civilians during the year. and, under the heading "Societal Abuses and Discrimination": The country's 1992-2002 civil conflict pitted self-proclaimed radical Muslims belonging to the Armed Islamic Group (GIA) and its later offshoot, the GSPC, against moderate Muslims. During the year radical Islamic extremists issued public threats against all "infidels" in the country, both foreigners and citizens. The country's terrorist groups generally did not differentiate between religious and political killings. 22 As will be seen from the discussion which follows, there was a later version of the Religious Freedom Report, dated 14 September 2007. I shall refer to it as the "2007 Religious Freedom Report". In the first RRT decision, which was later set aside by consent, the RRT referred to an earlier (2004) version of the Religious Freedom Report dated 15 September 2004. It described that report as (at that time) "(t)he latest US Department of State report on religious freedom in Algeria". There is also, in the appeal papers, a 2005 version of the same report. 23 The 2004 version said, relevantly for present purposes: The country's decade-long civil conflict has pitted self-proclaimed radical Muslims belonging to the Armed Islamic Group and its later offshoot, the Salafist Group for Preaching and Combat, against moderate Muslims. Approximately 100,000 to 150,000 civilians, terrorists, and security forces have been killed during the past 12 years. Radical Islamic extremists have issued public threats against all "infidels" in the country, both foreigners and citizens, and have killed both Muslims and non-Muslims, including missionaries. Extremists continued attacks against both the Government and moderate Muslim and secular civilians; however, the level of violence perpetrated by these terrorists continued to decline during the period covered by this report. As a rule, the majority of the country's terrorist groups do not differentiate between religious and political killings. 24 The corresponding paragraph in the 2005 version was virtually identical. Both those versions of the report stated that violence perpetrated by terrorists declined in the respective reporting periods. The comparable paragraph in the 2006 Religious Freedom Report, set out earlier, was in similar terms except for the fact that it reported the level of violence "slightly increasing during the reporting period". 25 Various kinds of "country information" were put before the RRT by the appellant's legal advisers for the purposes of its reconsideration of the applicant's claims after the first RRT decision was set aside by consent. Amongst that material was some supplied to the appellant and his legal advisers with a letter from Amnesty International Australia dated 3 December 2007. I shall refer to it as the Amnesty International Australia material. Relevantly to issues to be discussed shortly it said: The violence escalated in 1995, lead largely by armed Islamic opposition groups, at the head of which was the Groupe Islamique Arme (GIA). The GIA slaughtered many thousands of civilians, subscribing to the ideology of takfir, being a belief that all persons not embracing their interpretation of a strict fundamentalist code of conduct deserved death. Elections were held on 5 June 1997 for the Assemblee Populaire Nationale, (the National Assembly). The outcome of this election saw the Rassemblement National Democratique party (RND), with strong links to the ruling military regime, gain 41 per cent of seats. Although the banned Islamic Salvation Front (FIS) did not participate in the election, two other Islamic parties collectively gained 22.4 per cent of the elected seats. In 1998, the Salafast Group for Preaching and Combat (GSPC) composed of a network of militant groups broke away from the GIA. The Arabic word "Salafast" means fundamentalist, in the sense of going back to the original texts of Islam. GSPC quickly gained in strength and soon eclipsed the GIA as the principal militant opposition in Algeria. and: On 11 September 2006, the GSPC leadership and al-Qa'eda's deputy leader Aymin al-Zawahiri jointly announced that their two organizations had formed an alliance resulting in a formal merger and that therefore the GSPC had changed its name to al-Qa'eda Organisation in the Islamic Maghreb (AQIM). Terrorist violence based upon religious extremism in Algeria has significantly increased since the inauguration of this new entity. AQIM has instigated an upsurge of violence throughout Algeria, with increased armed confrontations with the security forces and a series of bomb attacks on police, government buildings, oil and gas industry installations and terror attacks directed at so called "infidel civilians". Major atrocities, to date during 2007, include: • 13 February 2007. Bourmeredes district (50 kms east of Algiers)and Tizi Ouzou district(100 kms east of Algiers) Seven coordinated car bombs. Six persons killed, dozens injured. This outrage followed bomb attacks in Bourmeredes district in May, June, August and October, 2006. • 3 March 2007. Ain Defia. Two roadside bombs targeted at a bus carrying foreign workers in the oil industry. This followed a similar bomb and gun attack on 11 December 2006 targeting two buses carrying oil industry workers at Bouchaoui (west of Algiers). • 4 March 2007. Beni Yeni, Eastern Kabylie. On 5 March 2007, AQIM claimed responsibility for a bomb attack that killed 7 gendarmes • 11 April 2007. Algiers. Three car bombs targeted at a police station, government offices and civilians. 33 killed. Over 200 injured. • 2 June 2007, the French News Paper Le Monde reported a slaughter in the village of Melouza, in the South of Kabylia. Some of the fellagas, the independent activists in Kabylia, have slaughtered 300 of their compatriots. • 6 June 2007, a bomb attack targeted the law courts of Tizi-Ouzou, Kabylia, where the trial of the former leader of the AQIM, Hassan Hattab, happened to be taken place just before the bombing. • 6 September 2007. Batna. Suicide bomber. Attack aimed at visiting President Bouteflika. 30 killed, over 100 wounded. • 8 September 2007. Dellys. Bomb targeted at government barracks and civilians. 30 killed, many injured. • 21 September 2007. Bouira (70 kms sought-east of Algiers). Bomb. Nine civilians injured. • 10 November 2007. Djanet (South-east Algeria) Terrorists attacked airport. • 10 November 2007. Maatkas in Kabylia Car bomb attack on police station and civilians. • 20 November 2007. Tizi Ouzou (100 kms east of Algiers). It was reported that security services had uncovered the existence of 80 potential suicide bombers ready to act in the regions of Tizi Oouzou and Boumerdes. (Emphasis added) 26 On 31 January 2008 the appellant's legal advisers also forwarded to the RRT a copy of the BBC news report which included the following: When a local Islamist group, the Salafist Group for Preaching and Combat (GSPC), re-branded itself in January 2007 as "al-Qaeda in the Land of the Islamic Maghreb", some experts were sceptical, seeing the move as tactical opportunism. Now they are not so sure. Over the last year, the group has launched a string of operations, including an attempt to assassinate Algerian President Abdelaziz Bouteflika, and two attacks in the heart of the capital, Algiers. On 11 April, a triple suicide bombing left 33 people dead. The latest attacks, on Tuesday, killed at least 26 people, although some officials have said more than twice as many died. New methodology The method, the timing and the targets all appear to bear the hallmarks of a group of the al-Qaeda type. ATTACKS IN ALGERIA IN 2007 11 December: twin car bombs kill at least 26 including 10 UN staff in Algiers 8 September: 32 die in bombing in Dellys claims by al-Qaeda in the Islamic Maghreb 6 September: 22 die in bombing in Batna claimed by al-Qaeda in Islamic Maghreb July: Suicide bomber targets barracks near Bouira, killing nine May: Dozens killed in run-up to elections, in fighting between military and militants April: 33 killed in Algiers in attacks claimed by al-Qaeda in the Islamic Maghreb March: Three Algerians and a Russian killed in attack on gas pipeline workers February: Seven bombs kill six east of Algiers
The Islamists who fought the Algerian government in the 1990s used brutal methods, but suicide car bombings were not among them. Now they are the method of choice. (Emphasis added) 27 On 24 April 2008 the appellant's legal representatives wrote again to the RRT. Extensive submissions were made. The submissions referred to and quoted from the 2007 Religious Freedom Report which was drawn to the attention of the RRT as being "(i)n addition to the independent country information provided by Amnesty International and previously". Amongst the quotations was the following, under the heading "Persecution by Terrorist Organisations": The country's decade-long civil conflict pitted Islamist terrorists belonging to the Armed Islamic Group and its offshoot, the Salafist Group for Preaching and Combat (GSPC), against the Government. While estimates vary, approximately 100 thousand to 150 thousand civilians, terrorists, and security forces have been killed during the past 15 years. Islamist extremists have issued public threats against all "infidels" in the country, both foreigners and citizens, and have killed both Muslims and non-Muslims. During the reporting period, terrorist violence based on religious extremism increased after the GSPC was recognized by al-Qa'ida in September 2006 and changed its name in February 2007 to al-Qa'ida in the Islamic Maghreb (AQIM). As a rule the majority of the country's terrorist groups do not differentiate between religious and political killings. (Emphasis added) This was an update of the comparable paragraphs in the 2004, 2005 and 2006 versions of the same Report. 28 At the hearing before the FMCA and at the appeal counsel for the appellant sought to make much of the announced link with al-Qa'ida, going so far, as I understood him, as to suggest that judicial notice could be taken of the likely consequences of a connection between GSPC and al-Qa'ida. I do not agree. As the FMCA said (at [35]): There was no evidence before the Tribunal that a change of name by the militant groups placed the Applicant at any greater risk. 29 Nor was there any particular evidence that the connection between GSPC and al-Qa'ida had any significance for the appellant personally, other than by way of his claims and assertions in support of his claim for a protection visa. Furthermore, it was accepted on the appeal that no specific submission had been addressed to the RRT about this particular issue. It is a matter which has come to the forefront after the RRT decision was handed down and after discovery of the fact that amongst the material relegated to a less persuasive category by the RRT in paragraph 50 of the RRT's second decision was a more up to date version of the Religious Freedom Report which mentioned the al-Qa'ida connection. 30 It was clearly open to the RRT, in its assessment of the appellant's claims and its own evaluation of independent country material, to prefer an assessment from one source over another. Insofar as the RRT preferred an assessment made in a US Department of State report over an Amnesty International Australia report, or a BBC news item, no jurisdictional error occurred providing it did not simply ignore those reports as irrelevant. It said it had considered them carefully. There is no basis to disregard such a plain statement on the facts of the present case. 31 The preference, however (accepting the RRT's statement at face value) for a 2006 version of a report over a later 2007 version of the same report raises other issues. If that is what occurred as a matter of deliberate choice some explanation was required. 32 In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Mason J said (at 44-45): The second question, which lies at the heart of this appeal, is whether the Minister is also bound to take into account submissions made to him which correct, update or elucidate the Commissioner's comments on detriment. Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand. Considerable time may elapse between completion of the Commissioner's report and the date at which the Minister makes his decision; in the present case it was well over one and a half years. In that time there may be such a change of circumstances that the Commissioner's comments may no longer prove to be an accurate guide, there may be uncertainties or ambiguities in his comments that deserve clarification, or, as in the present case, even though there may have been no change of circumstances, interested parties may have become aware that the Commissioner's report omitted material matters on the subject of detriment. It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker. (Emphasis added) 33 Part of that passage was cited by Kirby J in Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147; 248 ALR 390 who also said (at [41]): [41] When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. When, therefore, the Tribunal elects to make "a decision in substitution for the decision so set aside", as the Act permits, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard. (Emphasis added) 34 It is not necessary that I should regard the expected practice to which their Honours referred as one in the nature of a jurisdictional imperative. Its significance for the present case is that it provides a criterion against which to test whether the stated position of the RRT that it would prefer (with another report) the 2006 Religious Freedom Report, over (amongst other material) the 2007 Religious Freedom Report disclosed a failure to take into account relevant material and, if it did, whether that represented jurisdictional error. 35 In my view the material in the 2007 Religious Freedom Report which was additional to or altered the comparable assessment in the 2006 Religious Freedom Report was relevant. That conclusion does not depend upon attributing any special significance to the al-Qa'ida connection of the kind counsel for the appellant suggested. The material was relevant because it qualified and updated material evidently regarded by the RRT as relevant to its assessment of the appellant's claims. 36 I earlier drew attention to two paragraphs which the RRT quoted from the Human Rights Report which was dated 6 March 2007. For convenience I will set them out again: During the year, according to the Ministry of the Interior (MOI) and press releases, the total number of terrorist, civilian, and security force deaths declined to 323 (compared to 488 in 2005, 429 in 2004, and 1,162 in 2003). Of these, the government stated that terrorists killed 54 civilians (76 in 2005) and 90 security force members (177 in 2005); security forces killed an estimated 179 suspected terrorists (235 in 2005). Terrorists targeted civilians, security forces, and infrastructure. Press reports estimated that 135 civilians and 174 members of the security forces were killed in terrorists attacks, most of which were attributed to the Salafist Group for Preaching and Combat (GSPC). 37 The material in the 2007 Religious Freedom Report was also capable of being seen as qualifying that assessment and painting a gloomier picture, where terrorist violence was on the increase rather than decreasing. 38 Counsel for the Minister suggested three possibilities to account for what had occurred. They were: that the material in the 2007 Religious Freedom Report was not regarded as conflicting with the material in the 2006 Religious Freedom Report; that the RRT was aware of the 2007 Religious Freedom Report but chose to disregard it; and, that the RRT had not understood the significance of the references to it in the letter from the appellant's legal advisers dated 28 April 2008 and so had inadvertently overlooked it. 39 Any preference for an earlier version of a report over the latest version on the ground that there was no conflict between them would, as I said earlier, require an explanation. It is difficult to imagine how such an approach could normally be justified even if there was no conflict between the two versions. Calculated unwillingness to act on the latest material available would infringe the principles I earlier referred to. The same may be said of the second possibility mentioned. If the 2007 Religious Freedom Report was deliberately put aside, as a reading of the RRT's second decision would suggest, it should not have been. Counsel for the Minister accepted that would be wrong, although submitted it was unlikely. That leaves the possibility that the material was inadvertently overlooked. Even if the 2007 Religious Freedom Report was overlooked by the RRT (a possibility which does not sit well with its assertion of careful consideration of the appellant's submitted material) the material cannot for that reason alone be dismissed as irrelevant. 40 It is not necessary for me to make any choice amongst the unpalatable alternatives suggested. There is no question of bad faith involved. I do not have, from the RRT's decision or otherwise, the benefit of any explanation of the real reason for what happened. My present concern is to decide first whether the information to which regard was not paid, for whatever reason, was relevant. As earlier indicated I am satisfied that it was. It should have been taken into account. In particular the 2007 Religious Freedom Report should have been preferred as more up to date than the 2006 Religious Freedom Report. 41 However, my conclusion about that aspect of the issue is not sufficient to dispose of the appeal in the appellant's favour. There must be an examination of the question whether jurisdictional error was committed. 42 The classic, and often quoted, statement about the elements that establish jurisdictional error by an administrative tribunal is contained in the High Court judgment in Craig v South Australia (1995) 184 CLR 163. The Court said (at 179): If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. (Emphasis added) 43 Similarly, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said (at [82]): What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. (Emphasis added) 44 It is therefore not sufficient to point to some shortcoming of the kind I have identified unless it is possible to say that the error has affected the exercise of power. Counsel for the appellant suggested that the test in Stead v State Government Insurance Commission (1986) 161 CLR 141 was applicable: namely, whether a different course could possibly have made a difference. However, in that case the jurisdictional error, which was represented by a denial of natural justice, was clearly apparent. The question was whether a new trial would nevertheless be a futility. That is not the issue here. Here the error I have identified does not represent jurisdictional error unless it affected the exercise of power. That element is not supplied by assumption or the identification of mere possibilities. The High Court did not say in either Craig or Yusuf that there was jurisdictional error if the exercise of power might have been affected but is thereby affected (Craig) or in a way that affects it (Yusuf). In any event, it makes no difference in the present case. I am satisfied for the reasons that follow that the material about which complaint is made, legitimately (i.e. the al-Qa'ida connection material in the 2007 Religious Freedom Report), had no bearing on the basis upon which the RRT rejected the appellant's claims and could have made no difference to its decision, having regard to the whole of the reasons it gave. 45 As I pointed out earlier in this judgment, the RRT did not believe the appellant. It explicitly rejected the appellant's claims that either he or his family had been attacked by terrorists. The RRT was not satisfied that the appellant was a Christian. It said, dealing with another claim: • A claim that he opposes fundamentalist tenets of Islam and has not complied with fundamentalist tenets of Islam (giving rise to fear on the basis of religion); the fact that - according to his statements, most of his family fall into the same category but have not suffered harm amounting to persecution leaves me unsatisfied that he has anything to fear on this ground; 46 Those findings, in my view, leave no room for the operation of a speculative possibility, whether arising from the al-Qa'ida connection material or otherwise, which rested on claims the RRT explicitly rejected. The assessment of the appellant's factual claims was a matter for the RRT. It is not a matter for this Court. Despite the difficulties I have discussed about the way in which the RRT dealt with the 2007 Religious Freedom Report there is, upon examination, no jurisdictional error thereby disclosed. Grounds 1 and 2 of the appeal must therefore be rejected.
Grounds 3 and 4 47 It was accepted by counsel for the appellant that these grounds did not raise any issue concerning possible jurisdictional error by the RRT for attention. They need, therefore, not be further discussed.
Grounds 5 and 6 48 As earlier indicated, Ground 5 was not pressed. 49 Section 91R(3) of the Act directed that the RRT was obliged to disregard any conduct engaged in by the appellant in Australia unless the appellant satisfied the RRT that it occurred for a reason other than to strengthen his claim. Counsel for the appellant advanced Ground 6 upon the basis that he accepted the force of a submission by counsel for the Minister that the RRT had not expressed the satisfaction required by s 91R(3). Counsel for the appellant argued that the failure of the RRT to express or disclaim such satisfaction represented jurisdictional error. 50 There are a number of difficulties with this argument. First, the obligation lay on the appellant to satisfy the RRT, before the RRT could put any weight on the conduct or take it into account. That obligation was neither satisfied nor addressed in the representations made to the RRT on the appellant's behalf. Secondly, to the extent that the matters relied on by the appellant were taken into account by the RRT they were rejected by the RRT as capable of sustaining his claims. Some matters were clearly disregarded in accordance with s 91R(3) (e.g. reliance on formalising adherence to the Catholic faith while in Australia). Other matters ( e.g. a claim to have become "westernised" in behaviour, outlook and values) were dealt with on their merits. A declaration about "satisfaction" could make no difference. Either the conduct would be disregarded or dealt with as it was. The discussion concerning Grounds 1 and 2 leads me to the conclusion that any failure to strictly apply s 91R(3) did not, in this case, represent jurisdictional error because it did not affect the exercise of the RRT's power. Ground 6 must be rejected.
Conclusion 51 The appeal will be dismissed with costs. . I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.
Associate: Dated: 11 December 2008 Counsel for the First Appellant: Mr R W Killalea
Solicitor for the First Appellant: Eddy Neumann Lawyers
Counsel for the First Respondent: Mr G R Kennett
Solicitor for the First Respondent: Australian Government Solicitor
SZIGH
Minister for Immigration and Citizenship
[2008] FMCA 1203
(1995) 184 CLR 163
(1986) 162 CLR 24
(2001) 206 CLR 323
(2008) 82 ALJR 1147
(1986) 161 CLR 141