Hadjam v Minister for Immigration and Multicultural Affairs

[2000] FCA 657

FEDERAL COURT OF AUSTRALIA

Hadjam v Minister for Immigration & Multicultural Affairs [2000] FCA 657

MIGRATION – application for review of Refugee Review Tribunal decision refusing grant of protection visa – whether Tribunal erred in concluding that the applicant’s fear was not a well-founded fear – where Tribunal had considered the applicant’s fear was “understandable”

Convention Relating to the Status of Refugees done at Geneva on 28 July 1957 as amended by the 1967 Protocol Relating to the Status of Refugees done at New York on 31 January 1967 Article 1A(2)

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

MOHAMMED HADJAM v
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 721 OF 1999

TAMBERLIN J
SYDNEY
18 MAY 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 721 OF 1999

BETWEEN:	MOHAMMED HADJAM APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	18 MAY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application for review 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 721 OF 1999

BETWEEN:	MOHAMMED HADJAM APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	18 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an amended application for review of a decision of the Refugee Review Tribunal (“the RRT”) affirming the decision of a delegate of the Minister to refuse to grant a protection visa to the applicant.  The Minister’s delegate found the applicant was not a refugee within the meaning of Article 1A(2) of the Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”). 

2. The relevant background and evidence is set out in the decision below and I will not repeat it in any detail.  The applicant’s attack on the RRT’s decision challenges the approach taken by the RRT, as manifested in particular sections of the reasons set of the RRT member.

3. The RRT found that the applicant was a national of Algeria.  He was born in 1963 and, at age twenty, was conscripted into the Algerian Army for national service.  He served in the Algerian Army between 1983 and 1985.  Following his national service the applicant became a government employee who worked as a signalling technician in Nedroma in the area of Tlemcen in the west of Algeria about forty kilometres from the boundary with Morocco.

4. The applicant was a member of the government political party, the RND.  As well as other political parties, a number of terrorists groups, particularly a group known as the GIA, opposed to the RND, operated in Algeria.

5. The RRT found that the applicant departed Algeria legally in October 1998.  He used an Algerian passport in his own name which he subsequently destroyed.  The applicant arrived in Australia on 24 October 1998.

6. The applicant says that he faces harm or death in Algeria from the GIA.  In his statutory declaration made in support of his primary application on 3 December 1998 the applicant said that he was told by a friend that terrorists had asked for him by name.  His friend had been confronted on a road outside Nedroma, Route 98.  He said that he did not know why they asked for him but that he was afraid they would harm or kill him.  At the hearing the applicant introduced a new claim that some days before the incident on Route 98 he had received a letter from the GIA enlisting him to help blow up the government buildings where he worked.

7. The RRT considered that the applicant gave a fluent, internally consistent, and apparently spontaneous account of the receipt of the GIA letter and that his response to it was consistent with other parts of his evidence at the hearing and in prior statements.   It was also accepted that his main reason for not telling of the GIA approach whilst in Algeria was plausible, namely his mother’s health and his family’s safety.  However, these reasons for silence did not apply to his statutory declaration made in Australia as to why the terrorists were asking about him.  Further, the RRT considered that receipt of the letter was inconsistent with his statement that he did not know why the terrorists asked about him on Route 98.  The RRT was not satisfied that the applicant received a written approach from the GIA.  It formed the view that his claim was a recent addition to boost his case after refusal by the delegate.  Of course, this does not mean that the applicant’s evidence as a whole should not be believed.  The RRT accepted that the incident on Route 98 took place.

8. The applicant’s challenge to the RRT’s decision focused on a particular passage in the reasons.  That passage reads as follows:

   “The Tribunal is satisfied that the applicant received a message through his friend stopped by terrorists on Route 98 that terrorists had enquired about him by name, that this put him in fear and that he thereafter left Algeria.  Having regard to independent evidence about the situation in the country, and given that the applicant is identified as a government employee and member of the government party, RND, his fear is understandable.  The Tribunal notes that although the Algerian government can claim some recent success against armed Islamic groups and considers that their capacity and resources are considerably reduced, the groups, in particular the GIA, continue to carry out raids, bombings and killings in large areas of the country: the Interior Minister himself was reported in late May this year as saying  that terrorism is not finished in Algiers or throughout the national territory (Algeria: Interior Minister says terrorism is not finished, Reuter Business  Briefing Electronic Download, 22 MAY 1999, CX 35348)”.  (Emphasis added)

9. The principal submission made by Counsel for the applicant is that, in view of the factual findings made in the above paragraph, the RRT must conclude that the fear of the applicant was a well founded fear of persecution for a Convention reason.

10. Alternatively, it is said that the failure of the RRT, having made these factual findings to ask itself whether the fear was a well-founded fear of persecution for a Convention reason, is an error of law because it constitutes a constructive failure by the RRT to exercise its jurisdiction. 

11. As the High Court indicated in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272:

    “The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”

12. It is essential to examine the challenged paragraph in the context of the reasons for decision as a whole.  However, even if the relevant paragraph is considered in isolation, I am not satisfied that the applicant should succeed.  The findings made in the paragraph are that the applicant received a message through his friend who had been stopped by terrorists on Route 98, that the terrorists inquired about him by name, and that this put the applicant in a state of fear causing him to leave Algeria.  Further, independent evidence about the situation in the country and the fact that the applicant was known as a government employee and a member of the RND made his fear “understandable”. Clearly, when reference is made to the fear being “understandable” it is a reference to the decision-maker appreciating that the person holds a fear in his own mind.   It does not mean that there was any well-founded fear in the sense that there were reasonable grounds for such fear.  When the decision is considered as a whole it is apparent that the word “understandable” was not intended to conclude the question.

13. This view as to the approach is supported by the fact that the RRT member thereafter continues in his reasons to consider whether the holding of important information might lead to the applicant being exposed to danger.  The reasoning of the RRT was that some of the information which the applicant had gained by virtue of his employment would be helpful to the GIA and would cause the GIA to take an interest in him.  However, the RRT member observed that it does not necessarily follow that he is thereby a target for persecution for a Convention reason by them. He reasoned that any government employees, even at the relatively low level of the applicant, may be of some interest to armed groups.

14. However in the following paragraph of the reasons the RRT member proceeds to consider whether the nature of the information to which the applicant was privy was of such value to the GIA that it could cause it to target the applicant in a persecutory way.  The RRT member then evaluated the evidence and said that it went no further than showing that there was an inquiry about the applicant but that there was no evidence as to how the GIA perceived the applicant, why they inquired about him, or whether they imputed him with any political opinion or opposition to them.  It was clear the RRT member clearly took the view that the evidence of persecution was “very slight” and amounted to mere assertion that as a government employee and an RND member he would have been a target for the group.  The limited conclusion of the RRT was that any action which might be taken towards the applicant would be based on the GIA’s perception of him as a person with useful information and not by any perception of his political opinion.  It is in this paragraph that the RRT member turns his attention to the objective evaluation of the fear and reaches the conclusion that there was no real chance of his being persecuted by the GIA, if returned to Algeria, because he is perceived as holding a political opinion.

15. It is true that when considering the question of the possibility of relocation the RRT member refers to the applicant having “a sound profile as a government supporter, having done his national service, being a member of the government party, RND, and being a public servant of some 13 years standing.”  However, the fact that he had a sound profile with the government does not mean that he is a target for persecution because of his thirteen years standing or support for the government and his membership of the RND.

16. The RRT did not accept as a fact the applicant’s assertion that the terrorist group who asked about him would kill or harm him because he was a supporter of the government.  There was in my view sufficient evidence on the basis of which it was open to the RRT to reach the conclusion that there was no real chance of persecution for a Convention reason.

17. The applicant concedes that the appropriate statements of applicable principle are contained in the judgment but the submission is that the inference should be drawn that the RRT erred in the application of those principles to the facts.  For the reasons given above I cannot agree that any such inference should be drawn.

18. In view of the conclusion which I have reached on this point it is not strictly necessary to consider the relocation point which was an alternative ground on which the applicant relied.  If there was no persecution for a Convention reason established by the applicant, the question of relocation does not arise.  However, I have considered the approach taken by the RRT and, given the factors which it took into account and the country information as to Algiers, for example, I am satisfied that there was no reviewable error demonstrated in the RRT’s approach to this question.

19. Accordingly, for the above reasons, the application for review is dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:
Dated:             18 May 2000

Counsel for the Applicant:	M Beaumont
Counsel for the Respondent:	P Braham
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 April 2000
Date of Judgment:	18 May 2000