Slimani, Ibrahim v Minister for Immigration and Multicultural Affairs

[1998] FCA 1434

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 913 of 1998

BETWEEN:	IBRAHIM SLIMANI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	3 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

INTRODUCTION

The applicant (“Mr Slimani”) applies for  review of a decision of the Refugee Review Tribunal (“RRT”) dated 25 August 1998 by which the RRT affirmed a decision of a delegate of the respondent Minister not to grant Mr Slimani a protection visa.

PROCEDURAL BACKGROUND

Mr Slimani is a citizen of Algeria who arrived at Sydney airport on Qantas Flight QF24 on 14 April 1998.  On 15 and 17 April, he lodged an application for a protection visa (apparently it was lodged in two parts).  On 7 May, a delegate of the Minister refused the application.  On 12 May, Mr Slimani lodged an application bearing date 8 May with the RRT seeking review of the delegate’s decision.

On 21 May, the RRT wrote to Mr Slimani pursuant to s 425 of the Migration Act 1958 (“the Act”) advising that it would not grant his application “on the papers” and that a hearing would be held on 1 July. On 29 May, written submissions were made on behalf of Mr Slimani by Ms Sonia di Mezza, then of AMI Migration Consultants of Bankstown. The RRT hearing took place on 1 July when Ms di Mezza represented Mr Slimani. On 10 July, supplementary written submissions were made on behalf of Mr Slimani by Ms di Mezza, now of the Refugee Advice and Casework Service (Australia) Inc of Surry Hills. On 28 July, the RRT wrote to Ms di Mezza inviting further submissions on the question whether Mr Slimani faced persecution for a convention reason in Algeria. Such further submissions were made in writing by Ms di Mezza on 28 July 1998.

A second hearing, that is a supplementary hearing, was initially scheduled for 13 August and took place on 17 August.  The RRT gave its decision on 25 August and Mr Slimani made his present application to this Court on 3 September.  Before me, Mr Slimani has been unrepresented, but has been aided by an interpreter in the Arabic language.

THE RRT’S REASONS FOR DECISION

Article 1A (2) of the Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together, the “Convention”) defines “refugee” as 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.”

Mr Slimani’s claim has been that he has a well-founded fear of being persecuted for reasons of political opinion if he were to be returned to his country of nationality, Algeria, where he was a supporter of the Islamic Salvation Front (“FIS”).

The RRT’s Reasons for Decision are lengthy and detailed.  They occupy thirty five pages.  The presiding Member summarised Mr Slimani’s “Claims and Evidence” over some twenty pages and gave her “Findings and Reasons” over some ten pages. 

I do not think it necessary to attempt to summarise in any detail the “Claims and Evidence” or the “Findings and Reasons” of the RRT.  Briefly, however, the following may be noted. Mr Slimani claimed to have attended school between 1976 and 1989, to have undertaken an electronics trade course and to have a qualification as an electronics technician.  He said that he worked in an electronics repair shop from June 1989 to June 1990, and owned and managed an electronics repair shop from June 1990 to February 1991 and again from October 1991 to December 1994.   As appears in the next paragraph, Mr Slimani claims to have been in detention from February to October 1991.

In his application he stated that after finishing high school in 1989 he opened a television repair shop and used to go to the local office of the FIS in the evenings, but that he was not a “big member” of the party, and was merely a supporter without any party responsibility.  He stated that the Algerian President resigned on 10 January 1991 and that on 29 February 1991 he was arrested by the local police in the city of Damous and delivered to the Army a few days later.  He claims to have been released by the Army on 28 October 1991, that is, after a detention of some eight months.  He stated that he returned to his home after his release and was obliged to reside within the boundaries of his town and to report to the police at 2 pm daily.

He claimed that he was again arrested on 14 October 1994, this time with seventeen other men, and that they were charged with conspiracy to form a group of armed terrorists.  He claimed that the ensuing period of detention was about one month until 13 November 1994, during the first three days of which they were subjected to physical torture and were denied food and water.  He claimed that he and three of his friends were released after a month and that the other fourteen detainees were killed by the Army.

He claimed that he ceased having to report to the police on 25 March 1995 and that about three weeks later a group from the Army stormed his house and conducted a thorough search.  He claimed that he then realised that he would be killed and that his turn would eventually come.  He claimed that the Army commander said to him twice:

“I will annihilate all the groups of FIS, sooner or later.  And no one will escape from me.”

Mr Slimani alleged that soon afterwards his shop was closed by the authorities on the basis of an allegation that it was being used for the holding of political meetings.  He said that he began to think seriously about leaving Algeria but realised that he had another problem military service.  He said that he tried to obtain a certificate of exemption from several Army centres but was not successful.  This meant, according to him, that he would be recruited into the Army.  He said that he did not wish to be part of an “apparatus which kills innocent unarmed civilians”. 

The next episode in Mr Slimani’s “Claims and Evidence” was his departure from Algeria.  He stated that he left for the Libyan border on 24 April 1995 and made unsuccessful attempts to enter that country, until he was assisted to do so by a group of Bedouins who allowed him to travel with them into Libya.  He said that he arranged in Libya to have his Algerian passport stamped but was unable to obtain permission to work there, and therefore went to Tunisia.  He said that he had to pay a bribe to enter Tunisia from Libya because he was told that he should have entered from Algeria.  In the event, he claimed that he remained in Tunisia for only one day and purchased an airline ticket for Kuala Lumpur.  He said that he had to pay a bribe at the airport because his passport did not have an Algerian departure stamp.

He claimed that he arrived in Kuala Lumpur on 21 July 1995 and that he obtained work there four days later.  According to his account, there then began periodic renewals of his visa for Malaysia for the purpose of which renewals he had to travel to Thailand every three months.  This practice continued until July 1997 when his Algerian passport ran out of pages due to the number of Malaysian visa stamps. 

From June he remained in Malaysia illegally.  He claimed that in March 1998 he contacted the Algerian embassy in Kuala Lumpur requesting a renewal of his passport, but was told that without national service documentation renewal was not possible.  This meant that any prospect of a continued lawful residence in Malaysia was gone and he realised that he would have to leave Malaysia.  He stated that he went to Thailand and purchased an Australian passport from a Nigerian person for US$800, that he then flew from Thailand to Zimbabwe using his Algerian passport, and, finally, that he left Zimbabwe on the Australian passport to come to Sydney.

As noted earlier, the RRT conducted its first hearing on 1 July last.  Mr Slimani was asked many questions about his account of the events of which I have given the barest outline above.  One point which seems to have occupied some time was the evidence of Mr Slimani that the first round of general elections took place on 25 December 1990, that President Chadli had resigned in January 1991, that thereupon the country came under the leadership of Boudiaf, and that he, Mr Slimani, had been arrested in a coffee shop at 2 pm on Saturday 29 February 1991.  He persisted in this version of events but it was incorrect: the first round of the general elections was held on 26 December 1991, President Chadli resigned on 11 January 1992, the second round of the general elections was cancelled by the High Council for security which was under the leadership of Mohammed Boudiaf, and there was no 29 February 1991 because 1991 was not a leap year.  Mr Slimani insisted that 1991 was correct, but eventually, in Ms di Mezza’s submissions made on his behalf after the hearing, he accepted that he must have been mistaken and that the correct year must have been 1992.  In his favour, it should be (and was) noted that 29 February 1992 was a Saturday.  However, simply to date these events some twelve months later created other difficulties for the timing of subsequent events in Mr Slimani’s account.  

In the Member’s account of the first hearing, the Member referred to inconsistencies in Mr Slimani’s evidence which I need not set out here.   It may be noted, however, that Mr Slimani alleged that he was at home when he was arrested on the second occasion, that he had been accused of starting a group of “nasties”, and that he was released because the authorities realised that the allegations against him were not true.   Asked why, in the light of his release on this basis, the authorities had searched his house a few weeks later, he replied that once the Algerian authorities focussed on someone, they continued to check on him.  He also said that his house had been searched many times before he left Algeria.  Asked why he had not mentioned this previously, he said that the omission must have been a mistake of the translator.  

The Member’s account of the first hearing extended over several pages.  It is of questions asked of Mr Slimani by the Member and of his responses.

The second hearing was held on 17 August 1998 when the Member questioned Mr Slimani further and took evidence from a Mr Chebboub and a Mr Abou, both of whom claimed to have come from Algeria. After a section dealing with the further questioning of Mr Slimani and his answers, the Reasons for Decision deal with the evidence of the two new witnesses.

Mr Chebboub had been found by the RRT to meet the criteria for the grant of a protection visa and had been released from detention three days earlier on 14 August 1998. He claimed to have lived in the same neighbourhood as Mr Slimani in Algeria, to have gone to the same school (although different branches), but not to have been a close friend of Mr Slimani’s.   He said that he had last seen Mr Slimani in 1995.  He said that Mr Slimani had been a member of the FIS, but that the two had not discussed political issues and that he had not had personal discussions with Mr Slimani.  He said, however, that his house faced the cafe where Mr Slimani had been arrested on the first occasion and that he had been sitting on his balcony at the time and actually saw the arrest.

Mr Abou stated that his application for a protection visa had been approved by the Department.  He said that he had been an FIS candidate in the 1991 elections, that after the cancellation of the elections he had been detained and served four years in prison, and that he had first met Mr Slimani in the Immigration Detention Centre at Villawood where Mr Slimani had told him what had happened to him in Algeria.

The RRT summarised independent evidence relating to the background situation in Algeria, and, in particular, in relation to the issue of military service.

In its “Findings and Reasons” section the RRT dealt, in substance, with the issue of the credibility of Mr Slimani.  It accepted that he was an FIS “supporter” but that he had held no official position within the party and did not have a high profile.  In fact, the Member doubted that he was an FIS “member”, and referred to outright contradictions in Mr Slimani’s evidence on this issue.

The Member went on to point out what were described as “significant inconsistencies” in Mr Slimani’s evidence in relation to a range of issues.  These covered such matters as Mr Slimani’s education, his work history and his arrest.  Ms di Mezza submitted on behalf of Mr Slimani that he had a poor memory because the events in question occurred a long time ago and because they had traumatised him.  However, the Member thought that there was nothing in Mr Slimani’s evidence to indicate that he could not remember when significant events had occurred.  The Member accepted that after the cancellation of the second round of general elections in January 1992, many thousands of people were arrested in Algeria.  Although the independent evidence seemed to indicate that it was “militants” and people involved in clashes with the security forces who were arrested, the Member accepted that some people who were merely supporters of the FIS, and had not been involved in any political activities, were arrested.

The Member said (at 28):

“Because of the myriad inconsistencies in Mr Slimani’s evidence in relation to his employment history and his arrest, it is not possible for me to be satisfied on Mr Slimani’s evidence alone that he was detained following the cancellation of the elections in early 1992.  However, I have considered the evidence provided by Mr Chebboub and Mr Abou in support of Mr Slimani.”

The Member went on to refer to the evidence of Messrs Chebboub and Abou.  The Member gave little weight to Mr Chebboub’s evidence, finding it implausible that he should have been on a balcony across the road from the cafe where Mr Slimani was at the precise moment when he was arrested.  There were other aspects of Mr Chebboub’s evidence that the Member also found implausible for reasons which were set out in the Reasons for Decision.  The Member thought that the closeness of Mr Chebboub’s current friendship with Mr Slimani and his desire that Mr Slimani remain in Australia, may have led him to embellish his evidence in an attempt to support Mr Slimani.

However, the Member accepted Mr Abou as an impartial witness who gave evidence in a clear, frank and straightforward manner.  The Member accepted that Mr Abou was an official of the FIS and that he had been in prison for a number of years.  On the basis of Mr Abou’s evidence, and notwithstanding the inconsistencies in Mr Slimani’s own evidence, the Member accepted that Mr Slimani was detained from February 1992 until October 1992.  The Member said (at 29):

“However, the independent evidence does not suggest that being in detention until October 1992 means that Mr Slimani was considered to be a high profile activist.  The independent evidence, as well as that provided to the Tribunal by Mr Abou, indicates that people who were merely supporters of FIS with no previous political activity were detained.  I note also that Mr Abou, who as a candidate for election would have had a much higher profile that [sic] Mr Slimani, was detained for some four years.”

Importantly, the Member did not accept that Mr Slimani had been arrested again in 1994.  The Member gave several reasons for this rejection.  The first was that Mr Slimani had said that following his release from detention in October 1992 he had not been involved in any political activities or had any political profile at all, and the Member found to be “far fetched and fanciful” Mr Slimani’s claim that he was suspected of a conspiracy to form an armed group merely because he and three friends used to meet together to study in a youth centre administered by the Government’s Youth Ministry.  The second reason centred on inconsistencies touching the alleged circumstances of Mr Slimani’s release from detention without charge in 1994.   The third reason related to Mr Chebboub’s unawareness of the alleged accusation against, and arrest of, Mr Slimani in 1994.

The Member also analysed the evidence in relation to the searches by the authorities and was of the view that Mr Slimani had exaggerated his claims in this respect.  The Member did not, for reasons which were set out, accept that Mr Slimani’s house was searched on a regular basis from the beginning of 1994 or that he was told by an Army commander that the commander had made the threat of annihilation referred to earlier.  The Member did accept that Mr Slimani’s house was searched by the authorities on one or two occasions but accepted that this was something which happened to other people as well. 

The Member accepted Mr Slimani’s account at the second hearing of the 1993 “search”, but characterised it as a routine and inconsequential request by the authorities to see Mr Slimani’s father’s household registration documents.  The Member was of the view that one or two searches of the home did not constitute persecution within the meaning of the Convention and did not indicate that Mr Slimani was of such interest to the authorities as to give rise to a well founded fear of persecution.

In relation to the issue of military service, the Member thought that because of the internal inconsistencies in Mr Slimani’s evidence as well as independent evidence in relation to military service in Algeria, Mr Slimani’s evidence concerning his claimed military service obligations was “completely lacking in credibility”.  The Member reached the conclusion that Mr Slimani did not have “outstanding military service obligations in Algeria”.

The Member concluded as follows:

“There is no doubt that the current situation in Algeria is one of appalling horror and bloodshed, with Algerian citizens facing considerable danger on a daily basis.  In spite of FIS’s calls for a ceasefire, the independent evidence does not suggest that the situation in the country is improving.  I note that UNHCR has warned against the hasty deportation of rejected Algerian asylum seekers (UNHCR Press Release, 18 September 1997) and that the European Parliament has urged member nations to relax asylum policies in favour of Algerian exiles deemed to be under threat if they were to return home (Reuters, 18 September 1997).  Given the situation in Algeria, I fully accept that Mr Slimani has a genuine subjective fear of returning to his country.  I also accept that Mr Slimani is under stress because of his current detention and is taking medication to help him to sleep.  However, whilst I note Ms di Mezza’s submission that rejection of Mr Slimani’s application will lead to his transfer to Stage 1 of the Immigration Detention Centre, as well as her submission that her client will have difficulty appealing the decision because of legal aid funding cuts, I am  unable to take such matters into account in making a decision about whether Mr Slimani meets the criteria for the grant of a protection visa.

Taking into account all of the evidence before me, I am unable to be satisfied that Mr Slimani has a well-founded fear of persecution for reasons of his actual or imputed political opinion or for any other Convention reason.  He is therefore not a refugee as defined by the Refugees Convention.”

As I indicated earlier, Mr Slimani has not had the benefit of legal representation in his present application although it appears from the wording of his application that someone with knowledge of s 476 of the Act has assisted him to some extent in the preparation of it. However one regards his application for review, it is an attempt to challenge the factual findings made by the RRT. The RRT found that numerous aspects of Mr Slimani’s “Claims and Evidence” were inconsistent — more aspects than I have referred to. Generally, the assessment of the factual material before the RRT is a matter for the RRT. I see no reason why the RRT was not entitled to form the view of the facts that it did form.

Another aspect of the application is that Mr Slimani complains that the Member did not adequately acknowledge that he had suffered from loss of memory which had led him to give inconsistent evidence and to make inconsistent statements.  But loss of memory, even if proved, is not a substitute for proof of a ground for relief. 

In my opinion, the grounds on which Mr Slimani relies, that is, that procedures required to be observed were not observed, that the RRT’s decision involved an error of law involving an incorrect application of the law to the facts as found and that there was no evidence or other material to justify the making of the decision, are not made out.  It is not of course the Court’s function to substitute a different appreciation of the facts from that of the RRT.

CONCLUSION

In the circumstances the application will be dismissed with costs. One cannot, however, but have sympathy for the position of Mr Slimani. I draw attention to the availability of the discretion under s 417 (1) of the Act to the effect that the Minister may substitute a decision more favourable to the applicant than the decision otherwise available. The papers contain a note that Mr Slimani’s case has already been considered under “the Ministerial guidelines for stay in Australia on humanitarian grounds” and that someone has decided that his case does not satisfy the requirements for consideration of the exercise of the Minister’s discretion under s 417 (1). I do not know by whom, or at what level of authority, the case has been considered from that viewpoint. Moreover, I have no knowledge of the guidelines. It may be that this aspect of the matter has already been given thorough consideration at an appropriate level. On the other hand, the matter may have been looked at only formally and perfunctorily. I simply do not know. For these reasons, and in particular because Mr Slimani is not represented by a lawyer who would be able to apply on his behalf under s 417, I think it appropriate, notwithstanding the note in the papers, to recommend that this aspect of the matter be thoroughly considered by an appropriate person at an appropriate level of authority.

The orders of the Court are that:

1. The decision of the Refugee Review Tribunal dated 25 August 1998 be affirmed. 

1. The applicant pay the respondent’s costs.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:

Dated:             11 November 1998

The Applicant appeared in person assisted by an interpreter
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 October 1998
Date of Judgment:	3 November 1998