Rezagui, Karim v Minister for Immigration and Multicultural Affairs

[1998] FCA 424

FEDERAL COURT OF AUSTRALIA

MIGRATION - appeal from Refugee Review Tribunal (“RRT”) decision refusing refugee status - whether RRT satisfied onus that might arise in determining whether applicant has a well founded fear of persecution - RRT findings confirmed where applicant admits to he lied to RRT

Migration Act 1958 (Cth), ss 412, 414, 476(1)(a), 476(1)(e), 476(1)(g), 476(2), 476(4)

KARIM REZAGUI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1095 of 1997

O’CONNOR  J
SYDNEY
28 APRIL 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1095  of   1997

BETWEEN:	KARIM REZAGUI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):		O'CONNOR J
DATE OF ORDER:		28 APRIL 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application be 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	NG 1095 of 1997

BETWEEN:	KARIM REZAGUI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE(S):	O'CONNOR J
DATE:	28 APRIL 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application for the review of a decision of a member of the Refugee Review Tribunal (“RRT”) dated 8 December 1997 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

The grounds of the application are stated as:

1. that the RRT did not take into account the applicant’s evidence under the UN political convention and did not take into account evidence that the applicant was from Algeria. The applicant referred to ss 476(1)(g) (A)-(B), 414(1) and (2) and 412(A)-(B) of the Migration Act 1958 (“the Migration Act”) and claims that he did not receive natural justice at the RRT hearing;  and

1. that the RRT erred in law, being an error of the law, involving an improper application of the law to the facts as found by the decision maker.

The applicant seeks an order that the decision under review be set aside.  Alternatively the applicant seeks and order that the matter be remitted to a differently constituted Refugee Review Tribunal for reconsideration according to law.

Legislative Context
The relevant provisions of the Migration Act in respect of this application are as follows:

“Application for review

476.  (1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

...

(g)that there was no evidence or other material to justify the making of the decision.

(2)  The following are not grounds upon which an application may be made under subsection (1):

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power

...

(4)  The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)the person who made the decision was required by law to reach that  decision only if a particular matter was established, and there was no evidence or other material (including fact of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is a 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.”

Factual Background to the Claim Provided By the Applicant to the RRT

The applicant is a national of Algeria.  In the early 1990s he was a supporter of the Islamic Salvation Front (FIS), while it was a legal party.  However after the outlawing of the FIS in 1992 he no longer supported the party.

Around the beginning of May 1997 the applicant witnessed a bomb blast and whilst in hospital recovering from injuries suffered by the blast he said he knew the man who had planted the bomb.  Later the applicant was interrogated by the authorities who took his national identity card.   Whilst in a police hospital the applicant claims two men in civilian clothes entered his room and threatened him with death if he said anything about the incident.  The applicant believed they must have been sent by those who carried out the bombing operation.  The applicant then escaped the police hospital and stayed at a friend’s house.  Whilst still in Algeria the applicant claims that the police issued summonses and armed Islamic men came to his family home seeking his whereabouts.  The applicant fled Algeria with the aid of an Algerian Airlines pilot to avoid the usual procedures at the airport.

The applicant has since received correspondence from his family in Algeria who have continued to be questioned and threatened by the authorities.  The applicant claims that he will be persecuted due to the political opinion imputed to him if he returns to Algeria.

The applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa on 19 September 1997.  The delegate’s decision refusing the application was made on 21 October 1997.  The applicant applied for a review of that decision by the RRT on the same day.  The application for review was rejected by the RRT and his application for protection visa refused on 8 December 1997.

RRT’s Decision
The RRT decision summaries the relevant law, the relevant facts of the applicants as outlined above and then summarises the human rights situation in Algeria before making its findings.

The RRT found:

1. Because the applicant failed to produce any medical evidence confirming that the probable cause of injuries to his arm was a bomb blast and in the absence of any medical evidence, the RRT was not satisfied that it could conclude that the injuries must be due to a bomb blast.

1. It was inherently implausible that two men in civilian clothing, alleged by the applicant to be Islamic fundamentalists, would be able to get past the security or police officers guarding the police hospital where the applicant was allegedly treated, or gain access to his individual room which also must have been guarded, since he was still under police interrogation at the time.  Relying on reports on the conduct of Islamic fundamentalists in Algeria the RRT found it implausible that the two men would not have killed the applicant on the spot rather than run the risk of him disclosing the identity of those responsible for the bombing.  The applicant was unable to provide plausible evidence as to how the two men were able to locate him in the police hospital.

1. It would have implausible that a the applicant would have been allowed to simply walk passed guards at the entrance to the hospital, in the middle of the night, who would have realised that he had not been properly discharged.

The RRT also found that it implausible that someone who hardly knew the applicant would run the considerable risk of losing his well-paying and prestigious job or possible prosecution for aiding and abetting a suspected terrorist solely for the sum of US$900.  The RRT also doubted the applicant’s evidence relating to a summons by the authorities investigating death threats made to the applicant by armed groups and the applicant’s explanation as to why fundamentalists and authorities did not follow the applicant’s friend to find him.

The RRT concluded:

“Taken individually, each of these matters might not seriously affect the credibility of the applicant.  But taken as a whole, given the large number of implausible explanations and the severity of the degree of implausibility in question, the Tribunal can only come to the conclusion that the applicant’s testimony is not plausible and therefore he is not a credible or trustworthy witness.  Accordingly, ... there is nothing on which it can be satisfied that the applicant has a well-founded fear of persecution due to political opinion or any other Convention reason.”

Submissions
At the hearing on 20 April 1998, the Court received, without objection, materials provided by the applicant who appeared in person, assisted by an interpreter, which the applicant wished to have considered as submissions in the appeal.  These materials were:

1. a handwritten document providing further factual information the applicant seeks to be considered in the hearing;

1. a typed document dated 18 March 1998 being the applicant’s version of the relevant facts in his case entitled “This is my true story”; and

1. a document reported to be an Algerian police summons dated 15 August 1997 (in French).

The respondent submits that the RRT decision discloses no error of law because findings as to the applicant’s credibility are findings of fact not law.

The applicant relied on his written material and made no oral submissions.  These written submissions restate his case and explain why he lied to the RRT.  They would not, in the ordinary course, be relevant to the application before me.

Decision

This Court has jurisdiction to review the RRT's decision only on the grounds set out in s 476(1) of the Migration Act .  The only grounds that are possibly identified in the application are those in paragraphs (e) and (g).

The ground in s 476(1)(e) is that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision. There is nothing in the application, and nothing has been provided by the applicant to support this ground of review.

The other ground identified in the application is s 476(1)(g), namely that there was no evidence or other material to justify the making of the decision. That ground must be understood in the light of s 476(4) which provides that that ground is not to be taken to have been made out unless one of two pre-requisites as provided in s 476(4) is satisfied.

The reference in the application to sections 412 and 414 in the applicant’s grounds of review do not appear to identify any ground of judicial review. Section 412 simply provides that an application for review must be made in the approved form. There is no doubt that an application has been made and that any time requirements have been satisfied. Section 414 requires that if a valid application is made the RRT must review the decision. There cannot be any doubt but that the RRT has reviewed the decision and has made the decision sought to be reviewed.

I accept the submission on behalf of the respondent that the RRT's findings of fact have satisfied any onus that might arise in determining whether the applicant had a well founded fear of persecution if he returned to Algeria.

The findings of the RRT on all relevant issues were based on the RRT’s assessment of the applicant’s credit.  In his submissions to the Court the applicant says he lied to the RRT and gave as reasons for doing so his fear and lack of understanding of the process because of language difficulties.  He was, however, assisted at all times at the RRT hearing by an interpreter.

He addresses all his submissions in this hearing to the merits of his case which the Court cannot review.  There is no error of law alleged, in fact, or disclosed.

The application is dismissed with costs.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor J

Associate:        

Dated:             28 April 1998

Applicant:	Self-Represented
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 April 1998
Date of Judgment:	28 April 1998