SBBZ v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 543

FEDERAL COURT OF AUSTRALIA

SBBZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 543

MIGRATION – application for review of RRT decision – second RRT decision after earlier decision was remitted to the RRT by previous Federal Court ruling – whether Tribunal erred – s 474 of Migration Act 1958 (Cth)

Migration Act 1958 (Cth) s 474
King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited

SBBZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
S49 OF 2002

TAMBERLIN J
ADELAIDE
24 APRIL 2002

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S49 OF 2002

BETWEEN:	SBBZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	24 APRIL 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant to 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
SOUTH AUSTRALIA DISTRICT REGISTRY	S49 OF 2002

BETWEEN:	SBBZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	24 APRIL 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant in these proceedings is a citizen of Algeria who arrived in Australia on 30 December 2000.  He applied for a protection visa on 23 February 2001, based on his claim to be a refugee within the meaning of the 1951 United Nations Refugee Convention definition in Article 1A(2).  A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) refused the application for protection visa and the matter came before the Refugee Review Tribunal (“the Tribunal”), which affirmed the decision of the delegate to refuse the protection visa. 

2. The applicant sought review of the Tribunal's decision by this Court and on 26 November 2001 the Court, constituted by Mansfield J, set aside the Tribunal’s decision and remitted the matter to the Tribunal to be determined according to law.  On 15 February 2002 the Tribunal again affirmed the decision of the delegate not to grant a protection visa.

3. The basis for the setting aside of the earlier decision of the Tribunal by Mansfield J was that in his Honour's opinion, the Tribunal had failed to consider the question whether the applicant would be in danger of persecution for a Convention reason as a consequence of his illegal departure. 

4. When the matter came back before the Tribunal it was differently constituted.  The Tribunal found that the applicant is a national of Algeria and that he completed his period of military service as a conscript in Algeria, and was issued with a record of this service.  The member found that he is a Berber.  However, on balance, the member was not satisfied that the applicant was a Christian, but nevertheless had some doubts about the matter and went on to consider other aspects of the application.  The Tribunal also found that the applicant was not in danger of persecution if returned to Algeria, by virtue of his Berber ethnicity, and reasons were given for this conclusion. 

5. Furthermore, the Tribunal considered on the second occasion the contention of the applicant that he would have to report to the National Guard and would be forced into conscription in military service against his will.  The Tribunal member found again that this did not give rise to a danger of persecution for a Convention reason and looked at country information to conclude that it is not inconsistent with evidence from Amnesty International that both enlisted soldiers and conscripts were pressured to prolong their period of service. 

6. The decision‑maker had some doubts about the truth of the applicant’s claim to have been required to report to the National Guard and to have been assaulted, but finally accepted on balance that this did occur.  Nevertheless, this was not considered sufficient to constitute a danger of persecution on a Convention ground.  The decision-maker also had regard to the question of his departure without a passport.  Again, she formed the view that she was not satisfied that he departed illegally, but again, considered the possibility as to what might occur if she was wrong.  

7. She concluded in her reasons for decision that in relation to claimed persecution from Islamic extremists, that it was possible for the applicant, being a young man able to speak Arabic, French and no doubt, Berber, to relocate to a part of Algeria where he would not be under any danger from Islamic extremist groups as a result of his having performed military service or otherwise.  She pointed out that there may have been some slight risk of harm if he returned to the Kabylie region, or the area in or around Tizi Ouzou, where he previously resided.  Nevertheless, because of the possibility of relocation to a safe place in Algeria, which was open to the applicant on the finding of the Tribunal, it was considered that there was no real danger of persecution for a Convention reason.  Accordingly the Tribunal member found that it was not satisfied the applicant was a refugee in accordance with the Convention.

8. In my view nothing appears from the decision or has been pointed to in the material which would indicate that there has been any error of law or principle in the application of the relevant principles to the facts of this case. Accordingly I would dismiss the application on this ground. In addition, I am of the opinion that the provisions of s 474 of the Migration Act 1958 (Cth) would apply in this case to validate the decision. I am not persuaded that any of the matters which have been argued before me were made out or that they would indicate that there had been any failure to comply with the exclusionary provisions which are applicable to privative clauses of this nature as outlined in the case of King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, and subsequent authorities which have developed those principles.

9. Accordingly the order of the Court is that the application is dismissed with costs.  I appreciate that the applicant has probably very little in the way of any financial assistance, but the normal principle is that the costs should follow the event, and accordingly I order the applicant to pay the costs of the respondent in this case. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             2 May 2002

Date of Hearing:	24 April 2002
Date of Judgment:	24 April 2002