Zitoni v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 7 September 1999 which affirmed a decision of a delegate of the respondent ("the Minister") not to grant a protection visa to the applicant. The applicant, a citizen of Algeria, became an unlawful non-citizen when a vessel on which he was a passenger entered the "migration zone" on or about 18 February 1999. Before arriving in Australia the applicant had spent approximately one year in a detention centre in Indonesia. The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department") on 10 March 1999. On 28 May 1999 a delegate of the Minister refused the application. On 31 May 1999 the applicant sought review of the delegate's decision by the Refugee Review Tribunal. The Tribunal conducted the review hearing on 30 June 1999. 2 The application for review of the decision of the Tribunal relied upon the following grounds when lodged by the applicant, then unrepresented:

"(a) The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both. (b) The decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence and it failed to rationally consider the probative evidence that was before it." No particulars of the grounds were provided as required by the Federal Court Rules. 3 At a directions hearing, it was ordered that, inter alia, the applicant file an amended application, giving particulars of the grounds of the application. On 22 December 1999 Legal Aid WA, then acting for the applicant, filed an amended application in which the former grounds were deleted and replaced with the following: "4. That the decision involved errors of law, namely: (a) That the Tribunal failed to consider and determine whether the Applicant had a well-founded fear of persecution by being forced to flee and thereby to give up his home and his livelihood consisting of a poultry farm which was subsequently taken over by the military authorities and that this flight was forced on the Applicant as a result of the persecution that the Tribunal accepted that the Applicant may have suffered, namely 18 months held in detention between 1992 and 1993, during which time the Applicant suffered from beatings and other brutal treatment; which in turn was as a result of being forced to provide the FIS with produce from the farm and that the Applicant had a well-founded fear that if the Applicant had remained on his farm he would have had no alternative but to continue to provide produce to the FIS which in turn would bring him to the attention of the military authorities; (b) That the Tribunal failed to consider and determine that if the Applicant had remained on the farm and had refused to provide the FIS with produce or had attempted to prevent the FIS from taking produce he would have been targeted by the FIS for the imputed political opinion of support for the military authorities; (c) That the Tribunal failed to consider and determine whether the military authorities would or would not return the Applicant's farm, being his home and his livelihood, to him and that in absence of evidence that his farm would be returned, the Tribunal failed to consider that the Applicant had a well-founded fear of persecution for this reason alone. 5. The Tribunal made certain findings…which were adverse to the Applicant. In reaching such findings the Tribunal failed to observe the procedures that were required by the Migration Act or the Migration Regulations to be observed in connection with the making of the decision." Various particulars, amended from time to time, were provided to support the latter ground. 4 In its reasons for decision, the Tribunal set out its understanding of the provisions of the Act for the grant of a protection visa and of the operation of Article 1A(2) of the 1951 Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the 1967 Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together referred to as "the Convention") as explained in relevant cases, in particular, Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. It was not submitted that the Tribunal's exposition displayed misunderstanding of any part of the law. It may be assumed that the statement of the Tribunal set out below was intended to convey the Tribunal's understanding that persecution must be for a reason specified in the Convention and not the Tribunal's belief that a constituent element of persecution must be enmity or malignity towards an applicant by authorities of the country of nationality: "…persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors." 5 If the Tribunal did understand the law to be as latterly expressed, it would have erred in doing so. (See: Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [34]-[35], [42]; Kirby J at [60].) 6 The Tribunal noted that the applicant's claims were set out in written submissions to the Department (translated from Arabic); in an interview with an officer of the Department; in written submissions to the Tribunal (prepared on behalf of the applicant by a Migration Agent); and in oral evidence given to the Tribunal on 30 June 1999. 7 The applicant claimed to have been a member of a political party, the Islamic Salvation Front (FIS) ("FIS"), from its commencement in 1989 until it was banned in 1992, and that although he had ceased to be a supporter after it began to operate illegally as a militant organisation, he feared persecution from the Algerian authorities because of that association. He claimed that he had been arrested in 1992 and imprisoned under harsh and brutal conditions for eighteen months for assisting the banned FIS. He claimed that militant members of the banned FIS had forced him to assist them by providing food from his farm and that he faced retribution, either from his erstwhile associates if he refused to assist, or from the military authorities if he did. He further claimed that it had come to the attention of the Algerian authorities that he had left Algeria to seek asylum, and that he feared for his safety if he were to return to Algeria. 8 At several points in the reasons of the Tribunal the applicant is referred to as "a supporter" or "low level supporter" of the FIS, but not as having been a "member" of that organisation, although the applicant indicated that he had been a member of the FIS in his application for a protection visa and is so referred to in the decision of the Minister's delegate. According to the transcript of the Tribunal hearing dated 30 June 1999, the applicant stated that he had been a member of the organisation. The Tribunal, in the following extract from its reasons, appeared to accept that "close supporters" of the FIS risked persecution: "…FIS became banned as a party. The leaders and thousand (sic) of close supporters were arrested and thrown into prison where up to 15,000 of them are reported to remain to the present." 9 The Tribunal considered "country information" from various sources and referred to a number of publications, some of which the Tribunal stated had been supplied by the applicant and other Algerian applicants for protection visas. The publications described a situation in Algeria involving abuses of human rights and torture by Algerian authorities undertaken to quash political dissent, and the absence of substance in an amnesty purportedly extended to militant opponents of the Government. Amongst the publications the Tribunal referred to was the opinion of "an Algerian expert, Dr Larbi Sadiki of the Centre for Middle Eastern and Central Asian Studies, ANU Canberra", also referred to in the decision of the Minister's delegate. 10 The Tribunal made the following findings of fact in respect of the applicant's political activity and the risk of persecution: · The applicant was released from imprisonment at a time of continuing security concerns in Algeria and that indicated that he was not regarded as a serious risk at that time. · The applicant had limited political involvement prior to the banning of the FIS. · During a time of arrests, detention without recourse to the courts, forced entry upon premises, and a general climate of lawlessness and terrorism in the country, the only "unusual" incident immediately following his release from prison was the night-time knocking upon his door by unknown persons. The Tribunal was not convinced that this behaviour, if it did occur, was likely to have been either the Algerian authorities or terrorists. · The applicant remained on his farm during that time (from June 1993 until he fled to Oran in about October 1993), and remained two years in Oran, and in Dira for three years without attempting to flee the country, and without any harm befalling him. That suggested that the applicant did not face "potential harm" by reason of persecution after he was released from prison. 11 The Tribunal went on to consider the consequence of the applicant seeking asylum outside Algeria. It dismissed as "fanciful speculation" claims by the applicant that staff of the Algerian Embassy had monitored his movements whenever he left a refugee camp in Jakarta, Indonesia. The Tribunal referred to comments of Dr Sadiki which it considered supported a finding that the applicant did not face a "real chance" of persecution for a Convention reason in Algeria now, or in the reasonably foreseeable future. The comments relied upon by the Tribunal read as follows: "[I]f the unsuccessful applicant is neither known to the regime nor is his or her asylum application, he or she categorically face (sic) no threat to their life or freedom. Algeria is a country of hundreds of thousands of migrants and expatriates, and movement by its citizens is not in itself cause for concern or for state suspicion. Should the state have information on returning asylum seekers, especially those of no history of political opposition, Islamist affiliation, or criminal activities, some irritations, I should imagine, can be expected. But that can be expected of tax dodgers, drug dealers, or other types of criminals returning to their homelands anywhere in the world. Asylum is not always about politics; it has economic motivations. This latter category does not necessarily invite state suspicion or retaliation. Hundreds of thousands of Algerians, whose remittances are a major sources (sic) of hard currency for the state in addition to oil, can be interpreted as living in a quasi state of 'asylum'. Since 'asylum' to a point, convey (sic) the notion of protection, in this case, from economic hardship. This is perhaps a little far-fetched but I see no problem with Algerian seekers of asylum, which more often than not is motivated by economic concerns, returning home without being retaliated against by the state…" 12 In the Migration Agent's submission in support of the applicant's application for a protection visa it was stated that the Algerian Army occupied the applicant's farm and buildings when the applicant "fled" to Oran. In the transcript of proceedings before the Tribunal, the applicant stated that "the Army confiscated my farm". The Tribunal does not refer to the claim of seized property and, therefore, makes no finding thereon. 13 The applicant relied upon the grounds for review provided by ss 476(1)(a) and 476(1)(e) of the Act which read as follows: "… (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; … (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;" 14 With regard to the ground provided by s 476(1)(e), demonstrating that, contrary to the conclusion formed by the Tribunal, the material before the Tribunal is able to support a conclusion that the applicant has a well-founded fear of persecution, will not, in itself, show that an error of law has occurred to which s 476(1)(e) applies. (See: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 per Gleeson CJ, McHugh J at 589.) For the reasons which follow it is unnecessary to consider whether a ground for review arose under s 476(1)(e) of the Act.