Al Riahi v Minister for Immigration and Multicultural Affairs

[2001] FCA 1086

FEDERAL COURT OF AUSTRALIA
Al Riahi v Minister for Immigration & Multicultural Affairs [2001] FCA 1086

RAMZI IBN AL JILANI ISMAIL AL RIAHI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W178 of 2001

CARR J
9 AUGUST 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 178 of 2001

BETWEEN:	RAMZI IBN AL JILANI ISMAIL AL RIAHI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	9 AUGUST 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed. 

2.        The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 178 of 2001

BETWEEN:	RAMZI IBN AL JILANI ISMAIL AL RIAHI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	CARR J
DATE:	9 AUGUST 2001
PLACE:	PERTH

EX TEMPORE REASONS FOR JUDGMENT

INTODUCTION

1. This is an application for an order of review of a decision made by the Refugee Review Tribunal (“the Tribunal”) on 9 May 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.  The applicant who is a citizen of Tunisia, arrived in Australia on 12 July 2000.  On 27 September 2000 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (“the Act”). In his protection application he said that a smuggler had taken his passport. On 7 December 2000 a delegate of the respondent refused to grant a protection visa to the applicant. On 15 December 2000 the applicant applied to the Tribunal for review of that decision.

   THE APPLICANT’S CLAIMS AND THE TRIBUNAL’S DECISION

2. The applicant’s claims, in summary, were as follows:

   ·     He is a 30 year old unmarried computer specialist whose family, being Sunni Muslims have had troubles with the authorities in Tunisia because of religious and political involvements.

   ·     In 1986, at the age of 15, he was arrested and detained for 3 days because he was suspected of belonging to an opposition party known as Al Nadha.

   ·     He completed secondary school in June 1989 and then attended Limsat University until June 1992.

   ·     Between 1990 and 1994 he approached several humanitarian organisations including the Association for International Studies, the Higher Commission on Human Rights and Fundamental Freedoms and Amnesty International, offering them his support.  As a result of this he was placed under surveillance by the authorities.  He was summoned, questioned about his relationship to these groups and told to make regular reports on their activities.  He ceased his involvement with these groups because he feared that he might be detained.

   ·     From September 1995 until December 1997 he worked as a quantity control supervisor for a plastics company.  While there he befriended an employee whom he later learned was an Al Nadha member.  That employee began to pressure him to become involved with Al Nadha.  The applicant discovered that the employee was putting wireless transmission devices in boxes containing consumer goods for export to Algeria.  The fellow employee pressured him into concealing this.  Initially the applicant agreed to those demands but later reported the matter to his superior.

   ·     As a result of this report the Tunisian Police seized the boxes containing the transmission devices.  The fellow employee escaped.  The applicant was at first suspected by the authorities of involvement in the export of the transmission devices.  He was detained for 15 days, but then released. 

   ·     On return to his home he discovered that his father had received death threats from Al Nadha and his father’s car had been burned.

   ·     Eight months after this event the applicant was returning home one night when a car stopped and its occupants told him to get into it.  An Al Nadha party member was in the car.  He told the applicant that he (the applicant) had been sentenced to death for conspiring against the party, but his life would be spared if he stole a file from the Higher Commission and gave it to the party.  The file contained sensitive information pointing to corruption by people in high places including the President.

   ·     The applicant returned to work for the Higher Commission, and early one morning (having gained access to the office with keys entrusted to him by the head of the organisation) stole the file and gave it to Al Nadha.

   ·     On 1 November 1999, Al Nadha distributed leaflets revealing details of the information in the file, which greatly embarrassed the Tunisian government.  There were raids on the Higher Commission to try and find out who smuggled out the file and why.  The applicant’s home was also searched for documents.

   ·     The applicant was accused of stealing the file; he was detained for 15 days and beaten but released on bail on conditions which included having nothing to do with Al Nadha.  His siblings were suspended from school.  His sister sent a message to the International Committee on Human Rights in Geneva asking them to save the applicant’s life, but the message fell into the hands of the Tunisian authorities.

   ·     Because of his “dire circumstances” the applicant contacted a French journalist who published an article on violations of human rights which was widely published in Tunisia, France and elsewhere in about April 2000.  The article had sufficient details to identify the applicant.

   ·     On the advice of his family and the head of the Higher Commission the applicant decided to escape from Tunisia, managing to leave with the assistance of friends who worked at the airport in Tunis.

   ·     He had recently converted from being a Sunni Muslim to being a Shi’ite; if returned to Tunisia such conversion might result in his being executed.

   ·     He had been summonsed, by a summons dated 2 July 2000, from the Ministry of the Interior at Cathage to report to “the Administration Office of Border and Foreigners”.

3. Rather than attempt to summarise the Tribunal’s findings and reasons, I shall set them out below in full.

   “FINDINGS AND REASONS FOR DECISION

   For the following reasons, I did not find Mr Al Riahi to be a credible or a truthful witness.

   In submissions made in support of his protection visa application Mr Al Riahi claimed that he had had problems with the Tunisian authorities because of his perceived link with Al Nadha from the mid-1980s until his departure from Tunisia. He also claimed that he had been targeted by Al Nadha because he was believed to have betrayed a member of the party.  With the exception of his alleged link to Al Nadha and resulting detention in 1986, these claims were not mentioned when he was first interviewed after arriving in Australia. I do not believe would he have failed (sic) to mention the detentions and other problems which he now claims to have faced after 1986 when he was first interviewed on arrival in Australia if these claims were true.

   In reaching this conclusion I have considered Mr Al Riahi’s claim that he was afraid to give information on his more recent problems at this interview because he feared that the information would be passed to the authorities in Tunisia and cause problems for his family, because he was tired and unwell during his first interview and because he had problems with the interpreter.  However, I do not accept these explanations.  While it may be that he was tired and somewhat unwell when interviewed, I do not believe that he would have spoken about being detained in the 1980s, but not mentioned being detained three times in the 1990s for these reasons.  Nor do I accept that these details were omitted because of problems with the interpreter.  I have listened to the tape recording of the interview in question. Mr Al Riahi answered the questions put to him in an appropriate fashion and there is no indication that he had problems understanding or responding.  With regard to the submission that he was fearful that information he provided would be passed to the Tunisian authorities, I note that he was not told that information would be checked with Tunisian authorities, although as noted above, he was warned that failure to answer questions accurately and completely could cause him problems in future.  Furthermore, if Mr Al Riahi’s claims are true, the Tunisian authorities are already well aware of his past activities and problems and he would have nothing to lose by giving this information to the Australian authorities.  And if he believed that the fact that he had fled to Australia would be revealed to the Tunisian authorities and would cause problems for his family, it is difficult to understand why he gave accurate information regarding his identity and made a number of statements critical of the actions of the Tunisian authorities.

   I believe Mr Al Riahi concocted claims regarding problems with the authorities and Al Nadha after the late 1980s when he realised that he would not be allowed to remain in Australia unless he could show that he would be at risk of harm for a Convention reason if he returned to Tunisia.  This finding is strengthened by the fact that the evidence given by Mr Al Riahi regarding his alleged problems in the 1990s and 2000 contains numerous discrepancies and claims which are implausible.

   Mr Al Riahi’s evidence regarding his involvement with Al Nadha and the ongoing problems he claims to have faced as result was confused and unconvincing. He claimed both that he supported Al Nadha because he agreed with its ideals and that he had unknowingly attended Al Nadha meetings, or at least meetings organised by Al Nadha at his school. Furthermore, he claimed the group was known as Al Nadha at the time he was detained and tortured in the mid-1980s, which is not correct; the group was known as the MTI until 1989.  It is not plausible that he would have been unaware of the groups name if he had been detained and tortured because of his real or suspected membership of it.  I do not believe that he was involved with Al Nadha in the mid-1980s nor that he was detained several times in 1986 and/or 1987 because he was suspected of being associated with it. And even if I accepted that his claims regarding the problems he allegedly faced in the 1980s (which I do not), the claim that he was of continuing interest to the authorities because of his alleged association with the group is unconvincing. He claims that he did not support the group or have any involvement with it after the mid-1080s (sic).  If this were true and he was, as claimed, under surveillance, the authorities would surely have been aware that he had nothing to do with Al Nadha and would not have bothered to watch or harass him.  And the claim that he was detained for alleged Al Nadha involvement in 1997 does not sit well with the claim that he reported the illegal activities of an Al Nadha member to the authorities earlier the same year and was given police protection because of threats from the group .

   Mr Al Riahi’s evidence regarding the early 1990s when he claims to have worked for or been associated with human rights and to have been watched and harassed as a result was confused, implausible or unconvincing and, while I accept that he worked for the Association of International Studies in the early 1990s, I do not accept that International Studies Association was a human rights group, nor do I accept that he had any association with the Higher Commission or any other human rights group, nor that he had any problems with the authorities because of his association with the Association of International Studies.

   When interviewed on 17 July 2000 and in his protection visa application form, Mr Al Riahi indicated that he had worked for the Association of International Studies from 1990 or 1991 until 1993 or 1994.  In the statement which accompanied his protection visa application he said that he had given "paper support" to the Higher Commission, Amnesty International and Unicef during this time.  When interviewed by the delegate he claimed that from 1990 until 1994 he had been employed as an office assistant at the Higher Commission, which he said was a government organisation. In the submission provided on 24 February 2001 he said that the delegate had been wrong when she said that the Higher Commission was a government organisation. At the hearing he confirmed that the Higher Commission was a government organisation. He agreed that he had told the delegate he worked for the Higher Commission, but said that this was not correct. He said that he had been employed by the Association of International Studies, but claimed that he had sometimes helped out at the Higher Commission.

   Mr Al Riahi claimed that the Association of International Studies was affiliated with the Higher Commission. I do not believe this.  When asked about the nature of the link between the two groups, he said that Rachid Driss was the leader of both and they were both made up of educated people. When asked about the human rights work of the Association of International Studies, he said that Rachid Driss had spoken to the members about human rights, but the group was not directly involved in human rights work.  As noted above, the Higher Commission is a government human rights organisation. From Mr Al Riahi’s evidence, the Association of International Studies is a non-government organisation with no real involvement in human rights. While the groups may have members in common, it is not plausible that the two are affiliated with each other in any formal way.

   When asked about his association with groups such as Amnesty International, Mr Al Riahi said that the Association of International Studies library stocked their reports and he loaned these publications to students. It is clear that Mr Al Riahi had no real involvement with Amnesty International or any other non-government human rights group in Tunisia.

   In addition to these problems, it is not plausible that Mr Al Riahi would have been placed under surveillance or had problems with the authorities because he worked for the Higher Commission. As noted above the Higher Commission is a government organisation which prepares reports for the President.  Thus, even if I were to accept that Mr Al Riahi had worked for the Higher Commission (which I do not), the claim that this caused him problems with the authorities is not believable.  Nor is it plausible that an occasional, unofficial, junior employee of the Higher Commission such as Mr Al Riahi claims to have been, would have been told about the existence of a secret file giving details of corruption in high places.  Alternately, if the existence of the file was widely spoken about in the Higher Commission office, it seems unlikely that its existence would have remained secret for so long.

   I found the claims made by Mr Al Riahi regarding the problems he claims to have faced in 1997 while employed by the Plastics Factory implausible. If Mr Al Riahi and Lofti had known each other for a long time and Lofti belonged to Al Nadha then he would surely have known that Mr Al Riahi had never belonged to the group and if, as Mr Al Riahi claimed, he saw Al Nadha as a terrorist group after the 1980s, Lofti would also have known this and would not have asked Mr Al Riahi to join or rejoin the group and would not have told him that he was engaged in illegal activities on behalf of the group. And, I consider it most unlikely that he would not have gone immediately to his employer or the police if he discovered Lofti's activities, given that he believed Al Nahda (sic) was a terrorist group and he must surely have realised that he placed himself at risk of detention if he assisted or cooperated with Lofti.

   More importantly, Mr Al Riahi has given conflicting accounts of what happened after he reported Lofti’s activities to his employer.  In his protection visa application he said that he continued to work for the Plastics Company until December 1997.  At the hearing he said that he ceased to work there in May 1997.  He did not mention travelling to Indonesia, nor did he claim to have been detained for any reason in 1997 in his evidence to the Department. After the delegate noted in her decision that he had mentioned a trip to Indonesia in 1997 when interviewed in July 2000, he claimed that he had gone to Indonesia because he was being harassed by Al Nadha and claimed that he had been detained for a month when he returned because he had been banned from travelling at the time. He claimed that he had not mentioned the trip or his detention in his earlier submissions because he was not asked about them. I do not accept this explanation. While he may not have mentioned his travel because he did not believe it was relevant to his protection visa application, it is not plausible that he would have failed to mention the fact that he was detained for a month in 1997 in his written or oral evidence to the Department.  In addition, the evidence regarding his trip and alleged detention at the hearing differed from the claims made earlier, and changed during the course of the hearing itself.  He said that he had ceased working at the Plastics Company in May 1997, not December 1997 as stated earlier and said that he had been detained for 7 days because he was suspected of involvement with Al Nadha, rather than being held for a month because he had left illegally.  When questioned about his departure he first said that he had left legally on his own passport.  Later in the hearing he said that he had left Tunisia illegally and claimed that he had misunderstood my earlier question.  I do not believe this.  After listening to the tape recording of the hearing, I am confident that he understood my first question and believe that his confusion was due to the fact that his claims were not true. I accept that he travelled to Indonesia in May 1997, but not for the reason he claimed, nor I do not believe that he left illegally, nor that he was detained on his return.

   As I do not accept that Mr Al Riahi ever worked for the Higher Commission, nor that he had any knowledge of a secret corruption file held at the offices of the Higher Commission, nor that his claims regarding his contact with Lofti are true, it follows that I do not accept that he was contacted by Al Nadha and threatened with death if he did not obtain the file for them.  Nor do I accept that he returned to work at the Higher Commission in 1998, nor that he stole a file from the office of the Higher Commission, nor that he was detained for stealing the file, nor that his sister contacted an international human rights group and was forced to go into hiding and leave the country when this became known to the authorities.  I also note that much of the evidence given by Mr Al Riahi in relation to these matters was confused and unconvincing.  For example, it is not plausible that Al Nadha would be so anxious to obtain the file on corruption from the Higher Commission that they would threaten to kill Mr Al Riahi unless he obtained it for him, then wait patiently for some two years while he did nothing.  Nor is it plausible that, rather than seek help from the authorities (who would surely have arrested those threatening him) or his friend Mr Driss, an important government official, Mr Al Riahi would decide to get a job at the Higher Commission and steal the file for a group which he did not support.  It is particularly unlikely that he would do this if the group had only contacted him three times during the previous two years and, despite making threats against him, had not harmed him in any way.  And, while it may be that Middle Eastern officials sometimes place considerable trust in people such as cleaners and guards as submitted by Dr Al Jabiri, I do not believe that an unofficial, junior employee of the Higher Commission would have been given access to sensitive, confidential files.

   I also find the claims made by Mr Al Riahi regarding his contact with Taoufik Ben Brick to be lacking in credibility. In the first place, as I do not accept that Mr Al Riahi had been the victim of human rights abuses (with the possible exception of being detained in the 1980s and harassed by police because he is a young man), it follows that I do not accept that Mr Ben Brick would have any interest in talking to him on these matters.  Secondly there are serious discrepancies in his evidence on these matters. He told the delegate that he had met journalist Toufik Ben Brick at a computer course and that Mr Ben Brick had published his life story in an article widely published in Europe, then told me that he had met a cartoonist who knew Mr Ben Brick at the computer course, that he had only met him once and that while they discussed human rights issues, Mr Ben Brick had not actually used his life story in any newspaper articles.  [Taoufik Ben Brick is a well known Tunisian who works as a correspondent for the French newspaper La Croix. La Croix and many other papers have been effectively banned in Tunisia since 1999 or earlier: US Department of State Country Reports on Human Rights Practices 1999 and “Tunisian reporter back home to hero's welcome” Reuters News Service 7 September 2000 CX44531].

   After considering all the relevant evidence, I do not believe that Mr Al Riahi ever supported Al Nadha, nor that he was suspected of supporting Al Nadha by the Tunisian authorities. Nor do I believe that he ever had problems with the Al Nadha because he was believed to have given information on a member of the group or because it was believed that he could assist the group. I also find the claim that he was involved with or worked for the Higher Commission or any other human rights group to be lacking in credibility and do not accept that he had problems with the authorities because he worked for the group or because he stole a file from their office. I am therefore not satisfied that he is at risk of persecution for reasons of political opinion, real or imputed.

   In reaching this conclusion I have noted the summonses provided by Mr Al Riahi.  However, given his overall lack of credibility, I am not satisfied that they are genuine documents. I believe they are fraudulent documents obtained to bolster Mr Al Riahi's claim for a protection visa. Furthermore, even if they are genuine documents, there is nothing on the documents themselves about why they were issued and I do not believe that they were issued because Mr Al Riahi was suspected of involvement with Al Nadha, nor that he left the country while banned from travelling because of his suspected involvement with Al Nadha.  As he has provided no other explanation for the issuing of these summonses, on the evidence before me, I am not satisfied that they indicate that he is of interest to the authorities in Tunisia for a Convention reason.

   Dr Al Jabiri has suggested that Mr Al Riahi is at risk of persecution if he returns to Tunisia because he has applied for a protection visa in Australia. Protection visa applications are confidential and there is nothing in the evidence before me which suggests that the Tunisian authorities would know or suspect that Mr Al Riahi had applied for a protection visa in Australia.  Nor does the information which I have read on the situation in Tunisia suggest that the authorities would be concerned about the fact that he had applied for refugee status in Australia. While it is certainly true that those who are involved in certain kinds of political groups or activities may face a range of problems, there is nothing to suggest that the lodgement of a refugee application by someone with no record of political activity would be seen as an act of dissent or cause the person involved any problems on their return to Tunisia.

   I have also noted Dr Al Jabiri's submissions regarding the scars on Mr Al Riahi's body which he says are the result of torture while in detention for political reasons.  As noted above, Mr Al Riahi told me that his body was scared because of the conditions in the factory he stayed in while in hiding from the authorities. In light of this statement and given my findings on the credibility of Mr Al Riahi's claims, I do not accept that the scars on his body were caused by torture inflicted while he was in detention for political reasons.

   I accept that Mr Al Riahi may have attended a Shi’ite Mosque with Iraqis whom had befriended while in Australia. However, I do not believe that he has converted to the Shi’ite faith, nor that he fears that he will be persecuted for this reason if he returns to Tunisia now. He made no mention of this conversion prior to the hearing, despite the fact that he claimed to have changed his religion some months before it was held and had provided written submissions during that time. The evidence he gave regarding the reasons his conversion at the hearing was not convincing and he appeared to know relatively little about the differences between these two forms of Islam. And I find it surprising that there is no mention of this claim in the written submission provided following the hearing. Furthermore, the information which I have seen on religion in Tunisia does not suggest that followers of the Shi’ite faith risk serious harm amounting to persecution because of this.  I am therefore not satisfied that Mr Al Riahi has a well-founded fear of persecution for reasons of religion in Tunisia.

   CONCLUSIONS

   I am not satisfied that Mr Al Riahi has a well-founded fear of persecution for any of the reasons contained in the Convention. He is therefore not someone to whom Australia has protection obligations under the Convention and thus not entitled to a protection visa.” 

   GROUNDS OF THE APPLICATION

1. The applicant does not appear to have had legal assistance in drafting his application.  In the space where the grounds could have been inserted there was an indication that the grounds “will follow”. 

2. The applicant applied for a referral under Order 80 of the Federal Court Rules, but on 10 July 2001 I did not recommend such a referral.  No formal grounds of review have been put before the Court. 

3. The applicant addressed the Court this morning.  He raised matters which, in my view, related to the merits of his case, or were complaints that the Tribunal had not believed his evidence, which he said was truthful evidence, or that the Tribunal had not taken certain matters into consideration.  The applicant also complained that the hearing before the Tribunal had lasted 8 hours and caused him much psychological stress.  I took this to be a complaint that by reason of this he was unable to present himself and his evidence in as satisfactory light as he would have been able to do if the Tribunal hearing had been shorter.  In his address in reply, the applicant acknowledged that the hearing had taken place in two parts, one of 5 hours and the other of 3 hours duration.  I note that the applicant’s migration agent made extensive written submissions to the Tribunal before the hearing and (not having been able to attend the hearing) was provided with the tapes of it.  The migration agent then wrote to the Tribunal stating that he had listened to the tapes and made some further submissions.  None of the foregoing complaints by the applicant showed, in my view, any reviewable error on the Tribunal’s part.

4. The applicant, as part of his address, told me that he had been convicted in absentia by a Tunisian Court and sentenced to 8 years imprisonment. No date was specified. There is no evidence before me that the applicant raised this matter before the Tribunal. In my view, it is not something which it would be appropriate for this Court to take into account in exercising its review function under Part 8 of the Act.

   MY REASONING

5. I have scrutinised the Tribunal’s reasons for reviewable error, whether in the form of error of law or jurisdictional error. 

6. I have been unable to find any such error.

7. The Tribunal rejected the applicant’s claims to be entitled to refugee status, on the basis that it did not believe his claims.  Its written reasons show that the Tribunal correctly understood the law to be applied.  It gave very detailed reasons for its credibility findings against the applicant.  In my opinion, it was quite clearly open to the Tribunal to reject the applicant’s claims and reach the conclusion, on the evidence before it, that he was not a refugee.

8. I can find no reviewable error on the Tribunal’s part in this matter, whether error of law or jurisdictional error or any other error upon which the Tribunal’s decision should be set aside.

   CONCLUSION

9. For the foregoing reasons the application will be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Carr.

A/g Associate:

Dated:             9 August 2001

The Applicant appeared in person:
Counsel for the Respondent:	Mr A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 August 2001
Date of Judgment:	9 August 2001