Belakhdar v Minister for Immigration and Multicultural Affairs

[2001] FCA 521

FEDERAL COURT OF AUSTRALIA

Belakhdar v Minister for Immigration & Multicultural Affairs [2001] FCA 521

TEWFIK BELAKHDAR v MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS

N 172 OF 2001

EMMETT J
26 APRIL 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 172 OF 2001

BETWEEN:	TEWFIK BELAKHDAR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	26 APRIL 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed. 

2.The applicant pay the respondents costs.

3.The respondent take steps to inform the applicant of the terms of these orders and the terms of Order 35 rule 7(2)(a), if and when the applicant becomes subject to immigration detention.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 172 OF 2001

BETWEEN:	TEWFIK BELAKHDAR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	26 APRIL 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Algeria and arrived in Australia on 10 April 2000.  He applied to the Department of Immigration and Multicultural Affairs for a protection visa on 27 April 2000.  A delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), refused a visa.  The applicant sought review of the Minister’s decision by the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed the delegate’s decision on 20 July 2000.

2. The applicant then sought review of that decision by the Federal Court.  On 5 September 2000, the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law.  On 5 February 2001 the Tribunal, differently constituted, affirmed the decision not to grant a protection visa.  The various claims made on behalf of the applicant are summarised in the reasons for the decision of the Tribunal. 

3. The applicant gave oral evidence to the Tribunal as previously constituted and also to the Tribunal that made the decision presently under review before me. Further submissions were made to the Tribunal after the hearing in support of the application.

4. When he arrived in Australia on 10 April 2000, the applicant was interviewed at the airport in Sydney by a departmental officer.  He said then that he was born on 12 October 1964 in Algeria and was an Algerian citizen.  He has a father, five brothers and two sisters living in Algiers.  He also said that he had never before been outside Algeria.  He claimed that he had begun to plan to leave Algeria after his mother had been killed by terrorists in Autumn 1997. He said that he had left because he “could not live in a country with these terrorists and people cannot live in a country with these terrorists.”  He therefore decided to live in a peaceful country.  He said that he had chosen Australia because it was far away. 

5. In a statutory declaration dated 26 April 2000, the applicant said that he was 35 years old, an Algerian citizen, a Berber and a Sunni Muslim.  The applicant said that he attended primary and secondary school in Algiers between 1970 and 1984. Between 1984 and 1989 he completed a diploma in accounting. He said that he worked as an accountant in Algeria between 1989 and 1992. 

6. He claimed that while he was studying he was aware of an organisation for Berber students called the Berber Charitable Organisation (“BCO”).  He said that he was not a member of the association, but sympathetic to its cause and a supporter.  He said that he worked for the BCO “more or less as an accountant or a bookkeeper”.  He was a volunteer and not paid. 

7. The applicant asserted that in 1992 there was an uprising in Algeria and that ordinary people were targeted by the Algerian Government and security forces. He said that people were killed, tortured and imprisoned.  In about October 1992, he said he was on his way to his office when he was shot in the back.  He said that he fell unconscious and awoke in a hospital.  He said that the wound had caused permanent damage.  He also said that after being released from hospital, he moved residence constantly until he left Algeria in April 2000.  He said that he did so because he feared being detected by the security forces.  He claimed that he was shot at from time to time, from about 1994 to 1999, by the security forces.

8. He claimed that he travelled by car to Tunisia, using his Algerian passport.  He said he paid 5000 Algerian Dinars for the passport and 20,000 dinars to smugglers.  He stayed in Tunisia for a week and was introduced to other smugglers.  He paid 8000 French francs for a ticket and another 2000 French francs to new smugglers.  He claimed that he destroyed his passport in Singapore.  He claimed that if he returned to Algeria he would be executed as a member and supporter of the BCO. 

9. The Tribunal, in its reasons, said that having considered all the evidence, it accepted that the applicant is an Algerian citizen and that he was shot and badly injured in an attack by unknown persons in October 1992.  The Tribunal also accepted that the applicant's mother was killed in a random bomb blast in 1997.  The Tribunal considered that one of the crucial issues in the application is the applicant's understanding of the Arabic language.  He maintained at hearing before the Tribunal and also before the Tribunal as previously constituted, that the reason his claims had changed from one interview to the next was due to his inability to understand Arabic fully. The Tribunal did not accept the applicant's claims of limited ability and Arabic and considered that he had maintained such a claim in order to overcome the inherent problem of the changes in his history and claims. 

10. The applicant claimed to be of the Berber ethnic group before the Tribunal and to have been involved in the BCO on a part time basis.  The Tribunal did not accept that the applicant is a Berber.  The Tribunal considered that if he were, he would have had a greater understanding of Berber language, tribes and organisations. The Tribunal also did not accept that he was involved with or was a member of the BCO.  The Tribunal found that the applicant had fabricated such an involvement for the purposes of advancing his claims.  The Tribunal also found that the applicant's claims of being of interest to the authorities in Algeria were a fabrication.  Finally, the Tribunal concluded that the process adopted by the applicant in his departure from Algeria and destruction of his passport in Singapore would not bring him to the adverse attention of authorities in Algeria.

11. Overall, the Tribunal did not accept that the applicant is of a profile which results in his being of any interest, adverse or otherwise, to the authorities or to anyone else.  The Tribunal did not accept that the evidence disclosed a Convention connection between any fear that he had of being caught up as a bystander or on the side-lines and the risk of harm.  The Tribunal found that the applicant was not a credible witness and that he does not have a well-founded fear of persecution for reasons of a convention ground.

12. In his application to this Court filed on 27 February 2001, the applicant stated the following grounds of the application:

    “1. Unfair handling of my claims, (if unobjective and biased processing of my claims and evidences). 
    2. Perception of the presence of error of law.”

    Those grounds hint at the grounds contained in s 476(1)(e) and (f) of the Migration Act 1958 (Cth). However no particulars are specified.

13. When the matter first came before me on 16 March 2001, the applicant appeared in person, assisted by an Arabic interpreter. I fixed the matter for hearing at 10.15 today. I directed the applicant to file and serve any amended application by 20 April 2001 and gave directions for the filing of written submissions. 

14. On 9 April 2001 the Registrar received a written communication from Mr Michael McAuley, barrister, who had been asked to give advice to the applicant in connection with a pro bono scheme.  However, Mr McAuley was informed that the applicant had “disappeared” from the Villawood Detention Centre. Correspondence from the Department of Immigration and Multicultural Affairs (“the Department”) to the solicitors for the Minster dated 27 March 2001 states that the applicant had escaped from the Villawood Immigration Detention Centre on Monday, 26 March 2001. A letter from the Department dated 24 April 2001 states that the applicant has not been relocated.

15. When the matter was called today there was no appearance for the applicant.  Counsel for the Minister, therefore asks that I dispose of the matter pursuant to Order 32 rule 2(1)(c) of the Federal Court Rules which provides that if, when the proceeding is called on for trial, any party is absent the Court may, if the absent party is an applicant, dismiss the action.

16. I have summarised the findings of the Tribunal and I have read the whole of the Tribunal’s reasons.  It is not apparent to me that there is any error such as would fall within s 476(1)(e) or (f).  Accordingly, it is appropriate to dismiss the proceeding.  However, I shall direct the respondent to inform the applicant of the terms of Order 35 rule 7(2)(a), which provides that the Court may, if it thinks fit, set aside an order after the order has been entered

    where the order has been made in the absence of a party.

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

Associate:

Dated:             9 May 2001

Counsel for the Applicant:	No appearance
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	26 April 2001
Date of Judgment:	26 April 2001