Chenafa v Minister for Immigration and Multicultural Affairs

[1999] FCA 1432

FEDERAL COURT OF AUSTRALIA

Chenafa v Minister for Immigration & Multicultural Affairs [1999] FCA 1432

MIGRATION – application for review of decision of Refugee Review Tribunal (“RRT”) refusing protection visa – grounds of appeal involving questions of fact – whether findings open on the evidence available – claimed persecution for evasion of military service – possibility of relocation within Algeria

Migration Act 1958 (Cth) ss 476(1)(g), 476(4)

Convention Relating to the Status of Refugees as amended by the 1967 Protocol, Article 1A(2)

TARIK CHENAFA v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 780 OF 1999

TAMBERLIN J
SYDNEY

13 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 780 OF 1999

BETWEEN:	TARIK CHENAFA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	TAMBERLIN J
DATE OF ORDER:	13 OCTOBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed with costs.

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 780 OF 1999

BETWEEN:	TARIK CHENAFA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	TAMBERLIN J
DATE:	13 OCTOBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (“the RRT”) made on 9 August 1999.  That decision affirmed a decision to the effect that the applicant should not be granted a protection visa on the grounds that he was a “refugee” within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (“the Convention”).  The relevant provision of the Convention is Article 1A(2) which provides that a refugee is a person who:

   “… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …”

2. The applicant arrived in Australia on 25 April 1999, and five days later lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 28 May 1999 a delegate of the Minister refused a protection visa and on 3 June 1999 the applicant sought review of that decision by the RRT.  The question for determination by the RRT was whether as at the date of its decision, on 9 August 1999, the applicant was a “refugee” within the Convention definition.

3. The RRT in its findings and reasons for decision accepted that the applicant was a national of Algeria born in August 1965.  It also accepted that the applicant had served as a conscript in the Algerian Army for two years from 5 January 1985 to 15 January 1987.  The applicant's claim was that he had a well-founded fear of persecution by Algerian authorities because he had not complied with a recall notice from the Ministry of National Defence.  He stated that on 15 September 1997 he received a call up notice from the Army which told him to report to an Army base.  The way in which this fear of persecution is said to constitute anticipated persecution for a Convention reason is that the applicant says he is a conscientious objector to the drastic measures which the Army takes in its activities in Algeria.  He also says that by reason of an imputed political opinion, any person who does not serve in the Army would be regarded as being against the authorities in Algeria and also would be acting contrary to prevailing political views in Algeria.

4. An error of law is said to have arisen in the present case, being an error involving the incorrect interpretation of the applicable law or the incorrect application of the law to the facts as found by the RRT.

5. This ground is particularised in the following terms:

6. (1) The RRT erred in law in finding that there is no recall up for Algerian military-reservists in 1997 when the fact was there was a recall of reservists in 1997.

7. (2) The RRT erred in law in finding that the applicant could relocate to another part of Algeria where he had never been, owned no property, nor had any friends or relatives to support his relocation.

8. In relation to the first claim, the ground relied on is in substance that set out in section 476(1)(g) of the Migration Act 1958 (Cth) (“the Act”), which is that there was no evidence or other material to justify the making of the decision. Section 476(4) provides that this ground is not made out unless the person who made the decision was firstly required by law to reach that decision only if a particular matter was established and that there was no evidence or other material from which the person could reasonably be satisfied that the matter was established. Alternatively, the subsection provides that the ground in s 476(1)(g) will be made out if the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

9. In the present case, the RRT rejected the claim that there had been a recall notice. This was based on two grounds.  The first was the inference which the RRT member drew from the form of the recall notice, and the conclusion reached on this was that, on its face and having regard to matters and wording contained therein, the RRT was not satisfied that the notice of recall was genuine.  To some extent these conclusions are based on mis-spellings and wrongly placed or omitted French accents.  Before me, the applicant has said that it is not uncommon in Algeria for there to be missing or wrong accents and that the incongruities in the form tendered do not establish that the notice of recall is other than genuine.  In reaching its conclusion that the claim of a call up for Algerian military service in 1997 was not genuine, the member also had regard to detailed country information provided by the research director of the Immigration and Refugee Board of Ottawa.

10. The finding of the RRT was that the applicant had not in fact been recalled to serve as a reservist, and that there is not a real chance of the applicant being persecuted in Algeria for evading military obligations.  For that reason the RRT concluded that his fear of persecution by the authorities whether for reasons of political opinion or for any other Convention reason was not well-founded.  The issue raised by the applicant is one of fact for determination by the RRT.  It does not raise a question of law or principle.  There is no apparent error in the finding and the conclusion reached was open to it on evidence available. 

11. In the decision of the RRT reference is made to another matter but that was not raised on appeal.  Namely, the claim that because the applicant was a trader in wine grapes, he had attracted adverse attention from the Islamic fundamentalists who attempted extortion and threatened to kill him.  However that ground was not pressed on the application before me and it seems in any event that any extortion which was attempted from the applicant was not for a religious or other Convention reason.

12. There are a considerable number of authorities in this court to the effect that extortion of funds from victims is not necessarily evidence of persecution for a Convention reason, in view of the consideration that there may be many other grounds on which money is sought to be extracted in a criminal way from citizens of a country.

13. The second error of law which has been alleged is the finding that the applicant could relocate to another part of Algeria.  The applicant points out that there was no evidence that he had ever been to the other parts of Algeria or owned any property there or had any friends, relatives or connection with those areas.  The finding of the RRT was based on country information, referred to in the penultimate paragraph of the decision and before the conclusion.  The RRT noted that Algiers, for example, being a large city, was relatively secure and that the authorities had been claiming increasing success in containing rebel activity.  This view was based on specified country information.  The RRT member also referred to the fact that the applicant had been away from Algeria for almost two years and was satisfied that any attention the applicant might have received locally from any armed group before departure would not have ongoing significance.

14. Accordingly, the RRT expressed its satisfaction that the applicant would be effectively protected in areas away from his own home region.  Although these areas are not specified, it seems to me that this finding was open on the material.  It is apparent that the RRT member considered Algiers to be a relatively safe area.  In addition, there is the consideration that it was only an alternative basis for the ultimate decision of the RRT and in view of the finding that there had been no recall notice and that there was no reasonable or well-founded fear or risk of persecution, it was not necessary to express any view on the relocation question as this was not material to the ultimate decision.

15. In the course of the hearing, the applicant sought to proffer a medical certificate, by way of evidence, as to one matter which was mentioned in the RRT’s reasoning, concerning a fractured jaw.  I did not accept this because it is not open to this Court to entertain fresh evidence and re-hear the merits of the matter, or the factual basis on which the decision was reached.  The Court is only concerned with errors of principle, or of law, or of the application of the law to the facts on the evidence before the RRT, save in exceptional circumstances.

16. Accordingly, in this case, I am not persuaded that the applicant has made out a case for review of the RRT decision and I dismiss the application with costs.

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

Associate:  Dated:             20 October 1999

The Applicant appeared in person
Solicitor for the Respondent (appearing):	A Markus
Date of Hearing:	13 October 1999
Date of Judgment:	13 October 1999