Sahli v Minister for Immigration and Multicultural Affairs

[1999] FCA 440

FEDERAL COURT OF AUSTRALIA

Sahli v Minister for Immigration & Multicultural Affairs [1999] FCA 440

HADJI SAHLI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 53 OF 1999

EMMETT J
31 MARCH 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 53 OF 1999

BETWEEN:	HADJI SAHLI Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	31 MARCH 1999
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	N 53 OF 1999

BETWEEN:	HADJI SAHLI Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	31 MARCH 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me an application for review of a decision of the Refugee Review Tribunal given on 22 January 1999.  When the matter first came before me on 12 February 1999, I directed the applicant to file a written outline of submissions five days prior to the date listed for hearing.  I also directed the respondent (“the Minister”) to file a written outline of submissions three days prior to the date listed for hearing.  I fixed the matter for hearing today.  Notwithstanding my direction, no written submissions were filed on behalf of the applicant.  The Minister, however, did file a written outline in accordance with my direction.

2. The applicant is unrepresented.  However, he has been assisted in the hearing with an interpreter in the Arabic language who has informed me that she is satisfied that the applicant understands her translation of the proceedings.

3. The applicant is a citizen of Algeria who arrived in Australia on 19 October 1998.  On 22 October 1998, he lodged an application for a protection visa.  On 3 December 1998, a delegate of the Minister refused to grant a protection visa.  On 4 December 1998, the applicant sought review of that decision by the Tribunal.  On 22 January 1999, the Tribunal gave its decision which was to affirm the decision not to grant a protection visa.

4. The application for an order of review was filed on 27 January 1999 and referred to three grounds contained in section 476(1) of the Migration Act 1958 (Cth) (“the Act”), being the grounds specified in paragraphs (a), (d) and (e) of section 476(1). However, no particulars were furnished of the grounds. The applicant was unable to articulate any particulars in the course of the hearing before me. When shown his application, the applicant indicated that it had been written by a friend.

5. In the course of the hearing, the applicant submitted to the Court a handwritten document which he said were his submissions to the court. That document does not address any of the grounds set out in the application. It is, rather, a submission as to the merits of the applicant’s case before the Tribunal. The powers of the court to review a decision of the Tribunal are prescribed by Div 2 of Part 8 of the Act. The Court has no power to review the decision of the Tribunal, otherwise than on the grounds set out in section 476(1). The Minister’s outline of submissions to which I have referred were, I am informed by counsel for the Minister, communicated to the applicant by facsimile two days before the hearing.

6. It is not clear from the applicant’s response whether he received the submissions at that time.  However, I gave the interpreter the opportunity of translating the submissions orally to the applicant.  I have been informed by the interpreter that she has translated the submissions to the applicant and that he appeared to understand her translation.

7. I shall say something about the findings of the Tribunal and the Tribunal’s reasons for its conclusions.  The applicant’s claims were set out in an interview at the airport on arrival in Australia.  On his arrival, the applicant had no valid travel documents but relied on a forged passport.  The applicant’s claims were also supplemented by written submissions to the Department, an interview with an officer of the Department, written submissions to the Tribunal and oral evidence given to the Tribunal at the hearing on 7 January 1999.  At the hearing before the Tribunal, the applicant was represented by Mr Simon Jeans, a solicitor.

8. The Tribunal noted that in assessing the applicant’s claims it was necessary to determine whether he had a genuine fear of persecution and, if so, whether that fear was well founded.  It would then be necessary to determine whether any treatment which the applicant fears amounts to persecution for a reason specified in the 1951 Convention relating to the Status of Refugees as amended by the Refugees Protocol (“the Convention”).

9. The Tribunal noted that the applicant fears that, if he returns to Algeria, he will be considered by the authorities to have been training as a terrorist in Afghanistan.  He also fears that either he or his family could be harmed by men who previously asked him for money.  He said that he fears those men will perceive him as someone who works for the government because he has been outside the country for a long time.  He also said that he fears that those men could ask him for money again.  Finally, the applicant said that he feared that he might be recalled at some stage to undertake reservist military service.  The applicant also asserted that one of his cousins, an Imam, was arrested once and told by the security forces that he should shave his beard.

10. The Tribunal recorded in its reasons that, since 1992, Algeria has been in a state of insecurity described as verging on full-scale civil war.  That situation stems from the cancellation of the second stage of multi-party parliamentary elections after the Islamic Salvation Front (“FIS”) won a majority of seats in the first stage of the election held in December 1991.  Since that time, there has been unrelenting conflict between the Algerian security forces and radical Islamic groups who have resorted to increasingly violent tactics in their goal to establish an Islamic state.  The Tribunal’s reasons recorded that it is estimated that more than 60,000 people have been killed since 1992.

11. From 1992 until 1995, Algeria descended into an intense armed struggle between the security forces and the Islamic Salvation Army (“AIS”), the armed wing of the FIS.  The Tribunal accepted that there has been a high level of violence in Algeria, notwithstanding the multi-party elections which were held in June 1997.  In September 1997, the AIS declared a cease-fire.  However, there was a dramatic escalation of violence against civilians during Ramadan in January 1998 and there has been further violence since that time.  Very recent reports indicate that there has been a further upsurge in violence since the beginning of the month of Ramadan in December 1998 and January 1999.

12. The Tribunal found that overall it was clear that the political situation in Algeria has become highly polarised.  Reports from sources such as Amnesty International indicate that one does not have to support either government or the armed groups to be suspected by the other side. 

13. The Tribunal noted that, upon completion of compulsory military service, discharged soldiers become part of the National People’s Army reserve contingent until the age of 50.  On 29 May 1995, a broadcast on Algerian radio reported that reservists who completed military service in 1988, 1989, 1990 and 1991 would be called up from 1 June 1995 to take part in providing security for the elections which were held in November 1995.  Those called up had until 1 June to present themselves at their barracks.

14. The evidence before the Tribunal indicated that between 15,000 and 24,000 reservists may have been called up.  That, however, was the first time that there had been a call-up of reservists to deal with internal problems since Algerian independence in 1962. 

15. The Tribunal expressed the view that if the security forces had any interest in the applicant arising out of the activities of his cousin, they would have demonstrated that interest prior to the applicant’s departure from Algeria.  The Tribunal did not accept that if the applicant returned to Algeria he would be perceived by the authorities as someone who had been training as a terrorist in Afghanistan.  The Tribunal was of the view that the applicant would be able to demonstrate that he had been in South Africa and in Australia for most of the time he had been absent from Algeria. 

16. The Tribunal accepted evidence which suggests that failed asylum seekers who have returned to Algeria do not face persecution at the hands of the Algerian authorities unless they previously had a high profile with the authorities.  The applicant has undertaken military service.  He has made no claim to have been involved in any political activities whilst in or outside Algeria and he has at no stage, whilst in Algeria, attracted the adverse attention of the Algerian authorities. 

17. In those circumstances, the Tribunal did not accept that the applicant had any profile which would attract the adverse attention of the Algerian authorities if he returned to Algeria.  The Tribunal was of the view, on the evidence before it, that the chance that the Algerian authorities would think that the applicant had been training as a terrorist is remote and insubstantial.

18. The Tribunal accepted that the applicant had completed military service in Algeria and accordingly is part of the reserve forces.  The Tribunal accepted, therefore, that the applicant could in theory be called up as a reservist until he reached the age of 50.  The Tribunal noted, however, that there had not been a general call-up of reservists in Algeria and that only some reservists from certain years have been affected by the one partial call-up in 1995 and another in 1996. 

19. The Tribunal considered that other call-ups of reservists would only happen in the case of great emergency.  The fact that, in the last seven years of civil strife in Algeria, the government has considered it necessary to undertake partial call-ups of some reservists on only two occasions indicates that a call-up of reservists is not a regular occurrence or one which could be predicted to occur at any particular stage.  The Tribunal considered that, while it is theoretically possible that the applicant could be called up in the future, it would be highly speculative to say that in the reasonably foreseeable future there could be an emergency which could lead to such a call-up.

20. The Tribunal did accept that if the applicant were to be called upon to do reserve duties, he would not want to serve in the Army.  However, the Tribunal was not satisfied that there was a real chance that in the reasonably foreseeable future the applicant would be called up and would refuse to comply so as to attract punishment.

21. The Tribunal accepted the applicant’s evidence that he was approached by two men in the marketplace in which he worked in April 1997 and was asked to donate 20,000 dinars to support people fighting the government.  The applicant’s evidence was that he did not give the men money but told them that he would give them money if they came back at another time.  On the applicant’s own evidence, they did not return and he did not see them again.  Further, the applicant continued working in the marketplace for some eight to nine months following that incident. 

22. In that regard, the Tribunal noted the applicant's evidence that two relatives of a fellow merchant in the market were killed in August 1997 when that merchant refused to pay an extortion demand.  The Tribunal noted, however, that the applicant was prepared to remain working in the market for a further five months after the incident occurred and, in addition, continued to live at the same address with his family until his departure from Algeria.  The applicant’s family continues to live at the same address without apparent harm.

23. The Tribunal concluded that the fact that the applicant continued to work at the market until it suited him financially to stop working suggests that he did not have any particularly strong fear of being harmed by the men.  There was nothing in the applicant’s evidence to suggest that his behaviour between the time he was asked for money and the time he left Algeria was influenced in any way by the extortion demand. 

24. When the applicant was interviewed at the airport upon arrival in Australia, he did not refer to the demands for money as a reason for leaving Algeria.  That suggested to the Tribunal that the applicant did not have any particular subjective fear of being harmed for that reason.  The Tribunal considered that the fact that the men did not approach the applicant again, even though he told them he would give them money, clearly suggests that they had no further interest in him.  The Tribunal was, therefore, not satisfied that any fear which the applicant had of being targeted by the men was well-founded.

25. The applicant claimed that if he returns to Algeria the men who asked him for money might think that he works for the government because he had been out of Algeria for a long time.  The Tribunal was of the view that such a claim is highly speculative and did not accept that the mere fact that the applicant left Algeria for an extended period would lead the men to think that he worked for the government.

26. There was no evidence before the Tribunal, according to its reasons, to suggest that people who return to Algeria following an extended period outside the country have attributes that unite them as a group and distinguish them from society as a whole.  The Tribunal was not satisfied that such people are a cognisable group in Algerian society.  Accordingly, the Tribunal was not satisfied that the applicant could be said to face persecution for reasons of membership of a particular social group comprising people who have returned to Algeria following an extended period outside that country.

27. The Tribunal accepted that all Algerian citizens face considerable danger on a daily basis and that ordinary Algerian citizens who have had no involvement in political matters have borne the brunt of the horrific violence which pervades Algeria.  The Tribunal accepted that, given what has happened in Algeria since 1992, the applicant has a genuine subjective fear of returning to his country.  However, the Tribunal was not satisfied that there was a real chance that the applicant would face persecution for a Convention reason if he does return to Algeria.  For those reasons the Tribunal reached the conclusion which I have indicated.

28. The grounds specified in the application to this Court are as follows:

    “(1)The procedures that were required by the Act or the Regulations to be observed in connection with the making of the Tribunal's decision were not observed;

    (2)That the decision was an improper exercise of the power conferred by the Act or the Regulations;

    (3)That the decision involved an error of law, being errors involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts.”

29. It is not apparent to me, from my reading of the reasons, that any of those grounds has been made out.  While one must feel a great degree of sympathy for a person in Mr Sahli’s position who does have a genuine fear that he may come to some harm in his own country, that of itself is not sufficient to attract protection obligations for Australia. 

30. There is nothing in the reasons of the Tribunal to suggest any ground of review of its conclusion that the applicant, whatever his fear may be, does not have a well-founded fear of persecution for Convention reasons.  I am, therefore, satisfied that the application for review should fail.  Accordingly, I order that the application be dismissed with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             31 March 1999

The Applicant appeared in person.
Counsel for the Respondent:	S. Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 March 1999
Date of Judgment:	31 March 1999