B v Minister for Immigration and Multicultural Affairs

[1999] FCA 555

FEDERAL COURT OF AUSTRALIA

B v Minister for Immigration & Multicultural Affairs [1999] FCA 555

MIGRATION – review of decision of the Refugee Review Tribunal – national of Algeria who is an Algerian Army reservist – application revealed no basis for review

Migration Act 1958 (Cth)

B V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG  786 OF 1998

THE HON JUSTICE MARCUS EINFELD AO
SYDNEY
4 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 786 OF 1998

BETWEEN:	B Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE OF ORDER:	4 MAY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.            The application for review is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 786 OF 1998

BETWEEN:	B Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	4 MAY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. The applicant, a 29 year old Algerian, arrived in Australia on 6 May 1998 and two days later sought asylum in Australia as a refugee.  His application was refused on 1 June 1998 by the Minister’s delegate and on 5 June he applied to the Refugee Tribunal for a review of the refusal.  On 24 July the Tribunal affirmed the refusal and the applicant has now sought judicial review from this Court.

2. After attending school for 11 years, the applicant voluntarily entered into a 5 year contract of employment with the naval arm of the Algerian Army.  During the term of his contract, there was an insurgency by groups belonging to an Islamic Salvation Front against the Government and the applicant’s unit was assigned to seeking out members of the Front for about 8 months, at first to the capital Algiers and then in the mountains where he did signals and communications work.  He claims to have suffered harsh treatment in this period.

3. His contract ended on 30 January 1993 and he formally left the Army on 28 June 1993.  A month later an ‘armed group’ started to come after him as part of a project of targeting people who had left the Army for death for supporting the Government.  A few weeks later, the National Police sought his return to the Army on pain of imprisonment as an escapee from the war.

4. Frightened at being sought by both sides, the applicant sought and obtained a passport with the assistance of his former commanding officer and, on 23 April 1994, left for Greece where he unsuccessfully applied for refugee status on several occasions.  Four years later, with the assistance of his brothers, he came to Australia, destroying his passport on the plane.  His claim for asylum here is based on his fear, if he is returned to Algeria, that he will either be killed by the Islamic forces or imprisoned by the State.

5. The Tribunal found, apparently correctly, that there has been widespread turmoil in Algeria since parliamentary elections were cancelled in 1992, including major human rights abuses and the deaths of thousands of civilians.  Islamic groups apparently targeted government officials, families of service personnel, and people who did not practise Islam.  The killings have totalled around 70,000 people and were often indiscriminate, including massacres of children and young men of draft age.  The Tribunal was told that after his discharge a group of 5 men had called on the applicant’s mother, whose address had been given as his, and that they thereafter called about once a week, apparently, he said, to kill him or force him to work for them.

6. The Tribunal received evidence that Algeria had a standing army of about 100,000 men, mostly conscripts, and some 150,000 reservists, and that the applicant was on the reserve list because everyone who completed military service was obligated by law to become a member of the reserve.  Reservists had not been called up en masse but some 15,000 were recalled in 1995 in connection with an emergency associated with Presidential elections.  Although it was not clear that he was actually a reservist, because he  had been a volunteer, the applicant claimed that he had been called up after he had left for Greece.  By not responding, he had made himself subject to arrest, detention and perhaps death at the hands of the military.  The applicant believes he would be arrested on his arrival at the airport as his name would be on the Army computer.

7. The Tribunal appears to have found that the applicant was liable to call up as a reservist and that he was possibly called up in 1995 but did not respond.  It found that he was required to register changes of address with the authorities but had not done so.  He had thus broken Algerian law in these two respects which was applicable to all Algerian males who had given the requisite earlier service.  The Tribunal considered, however, that these unlawful acts had not given him an anti-Government profile or that the Algerian authorities would not have imputed to him a corresponding political profile.  It accepted that he left Algeria legally and that he would have required a prior military clearance to do so, but rejected any suggestion that he would suffer persecution because of his failure to answer a call to duty.  It concluded that his failure to answer any call up was not caused by a political belief that the war between the Government and the Islamic groups was unjust and by his unwillingness or refusal to participate in human rights abuses and killings.

8. As to the alleged threat from opposition Islamic forces, the Tribunal accepted that young men of military age are subject to random violence and that military personnel and their families are targeted, but rejected the concept that all persons who had ever served in the military could be in danger because this would embrace hundreds of thousands of people.  The Tribunal found that the applicant had a low Army profile and accepted his evidence that during his service he did not come into any confrontation with armed groups.  It rejected the factual contentions that the applicant’s mother had been receiving regular visits from an armed Islamic group for the last 5 years although the allegation was supported by the evidence of his brother.

9. The Tribunal thus accepted that the applicant feared being caught up in the civil war or unrest in his country but found that his fear was not Convention-related.

10. The application for review claimed that the Tribunal’s decision was legally flawed because it focussed on the general situation in Algeria rather than on the applicant’s individual role in the military, and failed to take in account that military call up might be directed to an individual or to groups with special skills. The application contended that the applicant was misled by a perceived confusion or inconsistency in the Tribunal’s findings about his stay in Greece.  It claimed that the Tribunal did not consider the possibility that the applicant was or could be regarded by the military as a deserter at a time of emergency and could be severely punished accordingly.  As a consequence, he could be regarded as sympathetic to groups opposed to the Government. The Tribunal’s decision was also attacked for failing to consider the applicant’s personal views about the civil war and the use of internal armed force against unarmed Algerian civilians. 

11. Some of these assertions were not argued or pressed in the submissions at the hearing which introduced some quite new material and arguments that had not been placed before the Tribunal.  This Court has no power to receive fresh evidence in a case of this kind but in a matter as important as a person’s claim to fear death or serious persecution if he is deported, it accorded with the need for and appearance of justice in this case that the new allegations be received if only in order to test whether there were matters that called out for reconsideration by the Tribunal.

12. The application for review and the applicant’s submissions were commendably comprehensive and well argued.  But it is my opinion that no basis for upsetting the Tribunal’s fundamental conclusions has been shown.  In the first place, although formulated with some appearance of relevant legal content, the grounds of the application for review and the submissions in their support raise essentially questions of fact, and this Court has been given no power by Parliament to hear or rehear factual issues.  The only legal matter that in truth arises from the consideration of the factual issues is whether the Tribunal fundamentally misunderstood all or a significant part of the evidence. 

13. I do not believe that this conclusion is warranted.  The Tribunal did not misunderstand or misapply the relevant fear of persecution or the facts relevant to its existence.  It also did not err in applying the appropriate legal concepts to the specific facts applicable to the applicant’s military service and skills.  It simply did not accept that anything arising from his particular service and training grounded a Convention-based fear of persecution.  Moreover, far from misunderstanding his case as the applicant submitted, it dealt with it in most respects favourably to the applicant.  The ultimate conclusion did not turn on any failure to comprehend or accept the case being made but on whether the case as made met the criteria for refugee status.  Even in the enhanced form made in the submissions, the case would not entitle the applicant to a protection visa.

14. As to the suggested likelihood that the State would impute to the applicant a political opinion, I agree with the Tribunal that this argument is far fetched and exaggerated.  If the applicant had been at his mother’s home where he was supposedly called up, he would have gone off to join the military unless he could have demonstrated that he was not a reservist if he did not want to go.  There was no evidence before the Tribunal — and nothing new has been revealed — to show that his absence overseas at the time was or would have been taken by the authorities as a desertion or a deliberate effort to avoid call up or that it would be so conceived now.  He might be prosecuted for failure to answer the call up or register a change of address but it seems more likely that he will be called up, if the need still exists.  By the same token, I cannot see how or why the anti-government forces would be obsessed by the applicant’s army service 11 to 6 years ago especially if they believed, as the applicant says the Government would believe, that he deserted or failed to respond to the call up because of opposition to the Government or its prosecution of the war.

15. The allegation of inconsistency by the Tribunal in its handling of the Greece side of the story is in my view trivial and pedantic.  The findings in this connection played no real role in the decision and cannot now be reviewed.  Similarly there is no substance to the quite technical contention that the Tribunal failed to inquire or inadequately inquired into the situation of specific call ups.  It found or was willing to proceed on the basis that the applicant was recalled to duty.  It had no need to make further inquiries.  Again, consideration of the applicant’s claim to be a partial conscientious objector was not omitted; the claim was rejected.  It does not matter that his claim is new; it was rejected because it was not believed.  On the available material, I cannot see how any other conclusion could have been reached.

16. The application for review fails and will be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.

Associate:

Dated:             4 May 1999

Counsel for the Applicant:	Mr G.L.V. Hooton
Solicitor for the Applicant:	Refugee Advice Casework Service
Counsel for the Respondent:	Mr S. Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 November 1998
Date of Judgment:	4 May 1999