Bakha, Ammar Altayeb v Minster for Immigration & Multicultural Affairs

[1997] FCA 1396

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - review of decision of Refugee Review Tribunal - no point of general principle

Migration Act 1956 (Cth), s 476(1)(e)

BAKHA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 762 of 1997

MADGWICK J
SYDNEY
25 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 762  of   1997

BETWEEN:	AMMAR ALTAYEB BAKHA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):		MADGWICK J
DATE OF ORDER:		25 NOVEMBER 1997
WHERE MADE:		SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal be set aside.

2. The matter be remitted to the Tribunal for determination according to law.

3. The respondent pay the applicant’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 762 of 1997

BETWEEN:	AMMAR ALTAYEB BAKHA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE(S):	MADGWICK J
DATE:	25 NOVEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(given ex-tempore and revised from transcript)

HIS HONOUR:   The applicant, Mr Bakha, is currently in detention.  The Minister submits that for humanitarian and other reasons it is highly desirable that the Court give an urgent decision.  In the circumstances of my other commitments, the only way I can do this is to give an ex-tempore decision.  Mr Bakha's legal advisers are, because of language difficulties, unable to obtain instructions as to whether he wishes me to do that or not.  The applicant did request of the Refugee Review Tribunal that it give an urgent decision, which was done.  In the circumstances I propose to give an ex-tempore decision.

This is an application for judicial review of a decision by the Refugee Review Tribunal (“the Tribunal”) declining to vary a decision by the Minister's delegate that the applicant was not a person to whom Australia owed obligations deriving from the 1951 Convention relating to the Status of Refugees and the 1967 protocol relating to such status.  The task of the Court is not to determine the facts or the merits of the matter, nor to seek to correct what it may perceive to be any error of the Tribunal going only to the ascertainment of the facts or assessment of their merits.  The role of the Court in approaching a judicial review of the Tribunal's decision is greatly circumscribed by the relevant provisions of the Migration Act 1956 (Cth) (“the Act”).

It is also appropriate that the Court not approach the decision of the Tribunal with an eye keenly attuned to the possibility of error, but should make due allowance for the fact that the Tribunal is an administrative body which may or may not be constituted by persons of legal qualification or experience.  It is particularly the case that there should be some generosity of approach as to the Tribunal's expression of its reasons where, as here, the Tribunal was (at the applicant's request) at pains to deal with the matter urgently.

The applicant was a small businessman in a small town in Algeria.  Life was difficult.  He was harassed in various ways from time to time by both the insurgent militant Islamic forces and the local militia, which apparently consisted of trusted citizens armed by the embattled central government (which, as a matter of history, had declined to give those constituting the insurgent forces the ability to test their claims to legitimacy by holding an election).  The Tribunal held, it would seem for good reason, that the applicant:

“may have been seriously harmed or killed by either local militia or [members of the insurgent militant Islamic forces] in [village Y] if he had remained there (as had happened to other traders) and that this harm would be motivated in part by a political opinion imputed to him.  This fear was of harm amounting to persecution [that is, is clear from the context of a Convention sufficient kind].”

However, the Tribunal made two critical findings which would disqualify the applicant from being accorded refugee status.  They are inter-related to some extent.  The first was to the effect that although:

“... local militia members pass on the names of individuals who are suspected of being actively involved with one of the Islamic groups”

the applicant:

“... did not fall into this category and his own evidence does not suggest that he is even now perceived to do so.”

Accordingly, the Tribunal went on to consider the question of the availability of protection to him in other parts of Algeria than that in which he worked and had his business.  The Tribunal unexceptionably stated the law in reliance on Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265. One does not, of course, need to consider the reasonableness of relocation if there is any reasonable chance that the central Algerian authorities would take a seriously untoward interest in the applicant as a suspected Islamic insurgent.

In view of the conclusions I have reached I need not deal with questions of reasonableness of relocation.  It is enough to say that there are substantial questions arising as to whether the Tribunal misapplied the legal principles which, as I have said, were unexceptionably stated in the abstract.  The conclusion to which I have been driven is that not only did the applicant's own evidence "not suggest that he is even now perceived" to be a member of one of the insurgent groups, his evidence is directly to the contrary.

Before the Tribunal, the applicant was at pains to point out that, as a person who had fled, leaving his wife and family behind, and not having obtained papers for permanent relocation within Algeria, the local militia would be very likely to suspect him as a terrorist or active supporter of the insurgent forces and to report him to the central government.  He pointed out that, so far as he knew, there were local militias established across the country, and that the central government was able to and had a willingness to communicate with them.  He went on to point out (though it was not directly relevant to this discussion) that if he were to relocate, he would, even in a place where he had relatives, be a person of interest in the prevailing, highly charged atmosphere.

In the light of this evidence the only way in which the Tribunal could have concluded that the applicant did not fall into the category of a suspected Islamic insurgent would be if his evidence had been rejected outright.  The Tribunal did not say that his evidence was rejected, although it is clear that the Tribunal manifested signs of some scepticism when the applicant was giving his evidence.  Nevertheless, making all due allowances for the position of the Tribunal (including the ease of overlooking the significance of particular items of evidence caught up in a somewhat discursive narrative) it seems to me that the Tribunal's decision really was founded upon the proposition that the applicant was not suggesting, in his own evidence, that he would be perceived as an Islamic militant by the central authorities.  The Tribunal said as much and gave no other reason for concluding that he did not fall into that category.

The Tribunal is required under s 430 of the Act to set out its reasons for the decision, its findings on any material questions of fact, and to refer to the evidence or any other material on which those findings of fact were based.  While I entertain little doubt that a failure so to do can amount to the non-observance of "procedures ... required by [the Act] ... to be observed in connection with the making of the decision" within the meaning of section 476(1)(a), I need not decide that matter in these proceedings because it is conceded, rightly in my opinion, that if the Tribunal erred in completely misunderstanding the applicant's evidence as I think happened, then that would amount to an error within s 476(1)(e).

This is not a case of an unreasonable approach by the Tribunal to the evidence in the case, which is merely thought by the Court to be unreasonable.  It is a different situation.  It is clearly implicit within s 430 that the decision will be made on evidence.  That requirement, a commonsense and necessary precondition for protection against injustice, would be set at nought if it could be said that a decision based upon radically misunderstood, critical evidence could nevertheless be said to be a decision based on the evidence.

In these circumstances it seems to me that it is inescapable that the matter should be sent back to the Tribunal for reconsideration according to law.  I therefore order that the decision of the Refugee Review Tribunal concerning the applicant and given 22 August 1997 be set aside.  I further order that the matter be remitted to the Tribunal for determination according to law, and that the respondent pay the applicant's costs of the proceedings.

I certify that this and that preceding three (3) pages are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Madgwick.

Associate:        
Date:               

Appearances

Counsel for the Applicant:            C Colborne
Solicitor for the Applicant:            Legal Aid Commission of NSW
Counsel for the Respondent:        D Goswin
Solicitors for the Respondent:       Australian Government Solicitor
Date of Hearing:  25 November 1997