“O” v Minister for Immigration and Multicultural Affairs

[2000] FCA 380

FEDERAL COURT OF AUSTRALIA

“O” v Minister for Immigration & Multicultural Affairs [2000] FCA 380

“O” v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1507 OF 1999

LINDGREN J
24 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1507 OF 1999

BETWEEN:	“O” Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	LINDGREN J
DATE OF ORDER:	24 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the application be 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 1507 OF 1999

BETWEEN:	“O” Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	LINDGREN J
DATE:	24 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

Introduction

1. Without opposition by the respondent (“the Minister”), I ordered under s 50 of the Federal Court of Australia Act 1976 (Cth) that the applicant be referred to as “O” and that the title of, and references to, the proceeding be altered accordingly and I made related orders.

2. The applicant applies under s 476(1) of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (the “RRT”) dated 22 December 1999 affirming a decision of a delegate of the Minister (“the Delegate”) not to grant a protection visa.

3. Section 65 of the Act provides that after considering a valid application for a visa the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. Section 496 of the Act provides that the Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under the Act. It is not in dispute that the Minister made the necessary delegation to the Delegate.

4. One of the matters specified in s 65 is that the criteria for the visa specified in the Act or the Regulations have been satisfied. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it be a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as “amended” by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention’”).

5. Article 1A(2) of the Convention provides that a refugee is any person who:

   “owing to 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

6. Criteria to be satisfied by an applicant for a protection visa at the time of the decision include the criterion specified in clause 866.221 of Schedule 2 to the Migration Regulations 1994 which is, again, that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

7. The RRT's decision was a “judicially-reviewable decision” (s 475(1)(b) of the Act), the applicant was entitled to apply to this Court for review of it on certain grounds (s 476) and the Court has jurisdiction with respect to the RRT’s decision (s 486).

8. The applicant’s case is that he is outside the country of his nationality, Algeria, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of religion, membership of a particular social group or political opinion.  In particular, he claims that he is a Catholic Berber who was actively involved in the Mouvement Culturel Berbère (“MCB”). 

   Procedural background

9. The applicant arrived in Australia on 30 November 1998 on a French passport in the name of André Noel Coiffet and a visa issued in Stuttgart.  On 16 December 1998 he applied for a protection visa (visa subclass 866).  On 6 January 1999 the Department of Immigration and Multicultural Affairs decided to issue the applicant with a bridging visa entitling him to work.  On 30 March 1999 the Delegate refused the application for a protection visa.  On 15 April 1999 the applicant applied to the RRT for review of the Delegate’s decision.  On 24 June 1999 and 3 September 1999 the Refugee Advice and Casework Service (Australia) Inc (“RACS”) made written submissions on behalf of the applicant to the RRT.  On 7 September 1999 the RRT conducted a hearing attended by the applicant.  He was assisted at the hearing by Sonia Di Mezza, a solicitor with RACS and by an interpreter.  The RRT gave its Reasons for Decision on 22 December 1999 and the applicant commenced the present proceeding by filing his application for an order of review on 30 December 1999. 

   The Reasons for Decision of the RRT

10. The Reasons for Decision of the RRT occupy thirty-six pages and I do not find it necessary to do more than refer briefly to the nature of the applicant’s case.  The RRT began by referring to the procedural background, the legislation and the definition of “refugee” in the Convention.  It then proceeded to deal at considerable length with the applicant’s “claims and evidence”.  The RRT noted that in his original application to the Department the applicant claimed that he was born in 1966 in Tizi-Ouzou in the Kabylia (Kabyle) region of Algeria.  He claimed to be a Berber and a Catholic and to have been educated from 1972 through to 1991, the last four years at the University of Tizi-Ouzou.  He claimed to have worked for the MCB from 1991 until August 1998.  Importantly, he claimed to be a poet, mandolin player and singer of Berber cultural songs.

11. The applicant claimed that on 1 September 1998 the police came to his house to arrest him but did not find him there as he had taken refuge with friends after two of his colleagues had been arrested the day before.  He claimed to have been given a false French passport in Tizi-Ouzou on 19 November 1998, to have been driven on 20 November from Algeria through the Sahara into Morocco, to have travelled by ship to Spain, to have caught a train from San Sebastian to Lyons in France where he stayed until 29 November, then to have travelled to Geneva and then to have flown to Australia via Singapore.  He asserted that it would have been impossible for him to get an Algerian passport.  He claimed that the false passport and his escape from Algeria were organised by one Massinisa, whom he described as the chief of the MCB in Algeria.

12. The applicant claimed that he had destroyed the French passport after arriving in Australia.  Before the Tribunal he had no other papers to prove his identity and claimed that all such papers had been taken by the police when they raided his home.  He said that he was not André Noel Coiffet and that he could not obtain identification documents from Algeria.

13. As I note below, he has produced in Court this morning documents which he says are identification documents relating to him which he received on 13 September 1999, that is six days after the hearing before the RRT and before it delivered its decision on 22 December.

14. The RRT did not believe the applicant and in fact concluded that he had fabricated his essential claims.  I need not outline the reasons which the RRT gave for taking this view.  The RRT did not accept that the applicant was a Catholic or a Christian and found that he had fabricated that claim in the hope of advancing his claim for a protection visa.  It did accept that the applicant was a Berber and that he had been born in Algeria.  It did not, however, accept that he had been involved in any significant way with the MCB or in the promotion of Berber culture and concluded that he had fabricated his claim of involvement for the purpose of advancing his claim to be a refugee.

15. The presiding Member conceded that he did not know when the applicant had departed Algeria or where he had been living but did not accept that he had left Algeria when claimed or that he had been living in Algeria in recent years.

16. As to the applicant’s claimed trip from Algeria through Morocco, Spain, France and Switzerland, the RRT, for reasons which it stated, thought that he had fabricated his story and found that he had not been truthful about his departure from Algeria or as to how and when he had travelled to Europe.

17. In relation to the applicant’s claim to be a singer, player of the mandolin and writer of poems in the Berber language and about Berber culture and issues, the RRT noted that the applicant had made this claim in the context of his claim of involvement with the MCB and had stated that he would be targeted by Islamists because of that activity.  But as noted earlier, the RRT did not accept the applicant’s claim of involvement with the MCB.  Although the RRT accepted that the applicant wrote poems and might sing at social events such as weddings, it did not accept that he did this in the context of MCB or Berber political associations or that he has done it at all in recent years in Algeria.

18. The RRT did not accept that the applicant had a profile which would bring him to the attention of authorities and concluded that his fear of harm was not well-founded and that the chance of his encountering harm was remote.  The RRT’s Reasons for Decision include this paragraph:

    “Overall, and taking all of these matters into account I do not accept that the applicant was a truthful witness.  I do not accept any of his claims as being true apart from his being born an Algerian, a Berber and exempted from military service.  I find that the applicant has not been truthful in relation to his religion, where he has lived, his departure from Algeria, his association with the MCB and his political activities.”

19. The RRT accepted that the applicant, like other persons in Algeria would have a general fear in relation to the ongoing conflict in that country and that the applicant, like virtually anyone in Algeria, is exposed to the risk of becoming a victim of random violence in a civil war like situation, whether the person is of Arab descent or Berber descent or mixed descent.  The RRT thought that the applicant’s general fear of harm as a result of the civil conflict in the country did not bring him within the Convention definition.

    The present application for an order of review

20. In his application commencing the present proceeding, the applicant stated the following as the grounds of his application:

    “1.That procedures that were required by the Act and Regulations to be observed in connection with the making of the decision were not observed.

    2.That the decision involved an error of law being an error of law involving an incorrect interpretation of the applicable law to the facts as found by the Refugee Review Tribunal.

    3.The Tribunal member refused to accept that the applicant has a well founded fear of persecution on [C]onvention reasons.”

21. The third ground set out above is not one allowed to the Court by s 476 of the Act but the first ground reflects s 476(1)(a) and the second ground reflects s 476(1)(e) of the Act. The application as filed gives no particulars of those grounds and I invited the applicant this morning to identify the non-observance of a required procedure and the error of law to which his application refers. He said that during the hearing before the RRT there were difficulties of interpretation in that the French interpreter did not interpret well what he was saying in French to his solicitor. In my opinion this does not give rise to any non-observance by the RRT of a procedure which the Act or Regulations require it to observe. In any event, the applicant is not in a position today to prove that the difficulty which he describes existed. I note in passing that before me the applicant complained fluently in English of interpretation difficulties, after which, with his consent, he spoke in English, calling in aid the services of the interpreter as and when he saw fit.

22. A further matter to which the applicant has referred this morning is that he received identification documents on 13 September. Although that was only six days after the RRT hearing, the applicant did not submit the documents to the RRT which, of course, was not in a position to take them into account when it delivered its decision on 22 December. Its failure to refer to those documents does not indicate a non-observance by it of any procedure which it was required by the Act or Regulations to observe.

23. In relation to the error of law ground, the matters which the applicant has put to me this morning relate at most to errors of fact which he says the RRT made.  No error of law suggests itself to me in the RRT’s Reasons for Decision.

24. Ultimately, as I attempted to indicate earlier, the RRT decided against the applicant because it did not believe him and ordinarily in such circumstances the Court cannot intervene because the assessment of an applicant’s testimony and the decision whether to accept or reject it are functions allocated by the Parliament to the RRT and do not ordinarily give rise to any of the grounds of review permitted to this Court by s 476(1) of the Act.

25. I note in passing that counsel for the Minister, not having the benefit prior to the hearing of written submissions from the applicant and thinking that he might intend to rely on a suggested non-observance by the RRT of s 430(1) of the Act, submitted in his written submissions that non-observance of s 430(1) of the Act does not constitute a failure to observe a procedure which the Act requires to be observed in connection with the making of the decision for the purposes of s 476(1)(a). However, in this case the procedure relied on by the applicant is not a failure to observe s 430(1) at all. Consequently, I need not deal with other submissions made by counsel for the Minister, including a submission that if I should conclude that the case turned on the question whether a failure to comply with s 430(1) afforded a ground of review under s 476(1)(a), I should delay judgment until after the judgment of the five judge Full Court in Minister for Immigration & Multicultural Affairs v Singh (judgment reserved on 28 February 2000).

    Conclusion

26. No ground of review permitted to the Court is made out.  Accordingly, the application must be dismissed.  The Court orders that:

    (1)the application be dismissed.

    (2)       the applicant pay the respondent’s costs.

I certify that the preceding twenty- six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             28 March 2000

The applicant appeared in person
Counsel for the Respondent:	Mr G R Kennett
Solicitor for the Respondent:	The Australian Government Solicitor
Date of Hearing:	24 March 2000
Date of Judgment:	24 March 2000