Larbi-Aissa v Minister for Immigration & Multicultural Affairs

[1999] FCA 1851

FEDERAL COURT OF AUSTRALIA

Larbi-Aissa v Minister For Immigration & Multicultural Affairs [1999] FCA 1851

BOUALEM LARBI-AISSA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 828 OF 1999

WHITLAM J
24 DECEMBER 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 828 OF 1999

BETWEEN:

BOUALEM LARBI-AISSA
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

24 DECEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s 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 828 OF 1999

BETWEEN:	BOUALEM LARBI-AISSA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	24 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 August 1999.  The Tribunal affirmed a decision by a delegate of the respondent (“the Minister”) refusing to grant a protection visa to the applicant.

2. The applicant arrived in Australia on 19 October 1998.  He completed his application for a protection visa with the assistance of a solicitor who is a migration agent.  That solicitor continued to act for the applicant until his visa application was finally determined by the Tribunal.  Unfortunately the applicant is now unrepresented and has acted for himself at all times on the present application for judicial review.  He does not speak English and has presented his case to the Court in Arabic through an interpreter.

3. The Tribunal prepared a written statement of seventeen pages in accordance with s 430 (1) of the Migration Act 1958 (“the Act”). It stated (at pp 2-3):

   “Mr Larbi-Aissa is an Algerian national from the city of Medea.  He left Algeria on 18 November 1994 on a legitimate Algerian passport and eventually made his way to South Africa, arriving there in June 1995.  In South Africa he worked in a shop before becoming a self-employed trader.  He purchased a South African passport which he used [to] board the plane to Australia.  He destroyed this passport enroute.  His Algerian passport is with a friend in South Africa.

   …

   At the hearing of his case, held on 26 May 1999, I reviewed [his] claims with him.  I advised him that it was my understanding that he had lived with his parents in Medea until his departure from Algeria.  After completing his schooling in 1989 he went to work in his father’s shop.  He was conscripted to serve in the military and he served from 1991 until 1993.  After this he returned to work with his father and also did some trading on his own account.  In 1994 he left Algeria and made his way to South Africa where he stayed until he came to Australia.  He never applied for [sic] obtained refugee [sic] or residency in South Africa.  Mr Larbi-Aissa agreed that this was an accurate summary of his situation prior to arriving in Australia.  I told Mr Larbi-Aissa that it was my understanding that he feared returning to Algeria for four reasons: because he had voted for FIS (the Front Islamique du Salut) in 1992 and believed this placed him at risk of harm from the authorities; because he had been recalled to serve in the army and had failed to respond, which would also place him at risk of detention or other harm from the authorities; because he believed he would be attacked by one of the armed opposition groups as a result of his army service; and finally because he feared he would be harmed as a result of the general violence which had plagued Algeria in recent years.  Mr Larbi-Aissa agreed that these were his reasons for fearing to return to Algeria.”

4. The Tribunal ultimately found that the applicant’s fear of persecution by both the Algerian authorities and the Islamic militants was not well-founded.  The applicant is, however, dissatisfied with the way in which the Tribunal dealt with the second and third of the “reasons” it identified.

5. The applicant claimed to have been recalled to military service in 1997 whilst in South Africa.  This question was given most anxious consideration by the Tribunal.  It did not accept that there was a recall of reservists in Algeria in 1997.  The Tribunal stated (at pp 15-16):

   “As I do not accept that there was a recall of reservists in 1997, it follows that I do not accept that Mr Larbi-Aissa was recalled to active service at that time.  I also note that while he has provided recall notices issued to other reservists in 1998 and 1999, he has not provided any documentary evidence of his own alleged recall.  If Mr Larbi-Aissa had been recalled in 1995 he would have been issued with a recall notice.  I consider his inability to provide such a document a further indication that he was not recalled.

   It appears that some reservists have been recalled to active duty since 1997, but Mr Larbi-Aissa does not claim to have been affected by these recalls.  As noted above, the 1995 recall involved people who had begun their service between 1988 and 1991.  The 1998 recall covered some groups of reservists who began their service in 1992, 1993 or 1994.  Mr Larbi-Aissa began his service in 1991 and it appears that those who began their military service in that year are no longer amongst the groups of people being recalled to active service.  In these circumstances, I consider there is no more than a remote chance that Mr Larbi-Aissa will be recalled to serve in the Algerian military in the reasonably foreseeable future and therefore find that his fear that he will be persecuted by the Algerian authorities for refusing to serve is not well-founded.  Furthermore, I consider that there is no more than a remote chance that Mr Larbi-Aissa would refuse to serve if he were recalled.  He states that he does not wish to serve because he disapproved of the government and did not want to become involved in killing innocent people, and I accept that this is true.  However, he previously served in the armed forces during a time in which the government was involved in repressive activities against those perceived to be its enemies without protesting or deserting and there is no suggestion that he has ever been involved in anti-government political activities or publicly expressed his anti-government views.  Furthermore, according to information from Dr Larbi Sadiki from the ANU, reservists generally return to serve with their former unit (in Mr Larbi-Aissa’s case, a training school) and the number of conscripts involved in military action that may involve human rights violations are very limited as conscripts do not usually meet with the trust required by the regime to cover up its military activities and operations against the rebels.  (Advice dated October 1997 held at CX 26055).  In these circumstances, I do not believe that Mr Larbi-Aissa would refuse to serve in the army if he were recalled.”

6. The Tribunal also considered the applicant’s claim that he would be harmed by Islamic militants because of his military service.  The Tribunal did not consider that there was a real chance that he would be targeted by Islamic militants in Algeria because of his military service and found, therefore, that his fear of harm from militants targeting conscripts was not well-founded.

7. These are the Tribunal’s findings that appear to have upset the applicant.  In disputing those findings, he has singled out extracts from the following material that was before the Tribunal:

   ·     Document No. CX26899 prepared on 18 February 1996 by the Country Information Section of the Department of Immigration and Multicultural Affairs on the topic of “Reservists, Non-Compliance and Curfew” in Algeria from a variety of named news media sources,

   ·     Document No. CX31702 a report dated May 1997 from the Swiss Section of Amnesty International on Algeria’s national service legislation,

   ·     a paper dated 16 June 1997 from the Swiss Government’s Federal Office of Refugees on the topic “Algeria: Military Service, Desertion and Conscientious Objection”,

   ·     a  monograph issued in November 1997 by Amnesty International entitled  “ALGERIA Civilian population caught in a cycle of violence”,

   ·     Document No. CX 32821 a note of oral advice on military service in Algeria given on     1 December 1998 by Dr Larbi Sadiki from the Centre for Middle Eastern and Central Asian Studies at the Australian National University,

   · the statement given under s 430(1) of the Act on 22 January 1999 by the Tribunal, differently constituted, on its review of the delegate’s decision in the present case in matter no. N98/25955,

   ·     the applicant’s unsigned and undated statement of three pages submitted to the Tribunal after its hearing on 26 May 1999 under cover of his solicitor’s letter dated 11 June 1999,

   ·     one page extracted from a submission to the Tribunal in matter no. N99/28542 and sent to the Tribunal under cover of a letter from the applicant’s solicitor dated 20 July 1999, and

   ·     research advice dated 30 July 1999 prepared for the Tribunal in matter no. N99/27330.

8. The applicant is not a lawyer and obviously has no idea of the strictly limited grounds of review available under s 476 (1) of the Act. Indeed, his application to the Court states no grounds at all.

9. In the Tribunal’s statement it does, in fact, refer to parts of all the documents listed above, with the sole exception of that from the Swiss Federal Office of Refugees.  So far as I can understand the applicant’s complaint, he relies on a statement in that document about the manner in which call-ups for military service are notified in order to rebut what the Tribunal noted about his inability (if he were affected by the 1995 recall) to produce a copy of an ordre de rappel.  But, in my opinion, this quibble rather misses the point.  The important finding by the Tribunal is that there was no recall of reservists in 1997.  In making its finding on this question, the Tribunal reviewed a mass of material.  Further, it regarded the information about reservists in a Canadian report cited by the applicant in the research advice dated 30 July 1999 as more reliable than that contained in the despatches from the Australian diplomatic post in Cairo.  In any event, so far as these other documents are concerned, the Tribunal was under no obligation to have regard to their contents.  The weight accorded by the Tribunal to any information and views expressed in them was entirely a matter for it.

10. The applicant also complains that the Tribunal reached its findings on the prospect of harm from Islamic militants by overlooking that he comes from the Islamic stronghold of Médéa.  Whilst it is true that fact is not mentioned in the relevant paragraph, it is referred to several times elsewhere in the Tribunal’s statement, and the Tribunal obviously bore it in mind.

11. Counsel for the Minister correctly submits that the Tribunal was entitled to reach all its findings of fact upon the material before it. I have considered the applicant’s complaints to see whether any of the grounds under s 476 (1) of the Act have been made out. However, in substance, the applicant merely seeks to dispute the findings of fact made by the Tribunal. On any view of the requirements of s 430 (1) of the Act, the Tribunal has clearly referred to the evidence and material on which its findings are based.

12. The application is dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:            24 December 1999

The applicant appeared in person.

Counsel for the respondent:    G.T. Johnson
Solicitor for the respondent:   Australian Government Solicitor

Date of hearing:	1 October 1999
Date of judgment:	24 December 1999