SZBHR v Minister for Immigration - [2005] FMCA 295

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBHR v MINISTER FOR IMMIGRATION

[2005] FMCA 295

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to apply the real chance test properly – whether Tribunal denied applicant procedural fairness by failing to warn him that it did not believe his claim – whether Tribunal failed to have regard to particular independent information and ignored relevant material.

Migration Act 1958

Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v W64/01A [2003] FCAFC 12
WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399
Kalala v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 212
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
SZATE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 532
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264
Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Chand v Minister for Immigration & Ethnic Affairs (unreported, FCA, Full Court 1997)

Applicant:

SZBHR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1705 of 2003

Judgment of:

Barnes FM

Hearing date:

22 February 2005

Delivered at:

Sydney

Delivered on:

24 March 2005

REPRESENTATION

Counsel for the Applicant:

Mr B. Zipser

Solicitors for the Applicant:

Adrian Joel & Co

Counsel for the Respondent:

Mr J. Potts

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1705 of 2003

SZBHR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 25 July 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, who is a citizen of Algeria, entered Australia on 12 September 2000. From 1987 to 2000 he had worked as a television editor with Algerian National News in the city of Algiers (where he had grown up). He came to Australia to cover the Olympic Games. On 24 October 2000 he applied for a protection visa claiming to fear persecution on the grounds of political opinion. The application was refused and he sought review by the Tribunal. He attended a Tribunal hearing. The Tribunal affirmed the decision of the delegate not to grant a protection visa.
The applicant claimed to fear persecution on what were essentially three grounds. First he claimed to fear Islamic extremists in Algeria on the basis that they would perceive him as sympathetic to the current government due to his employment by the state owned and operated Algerian Television and because of the nature of his work (as an editor) as the television news portrayed Islamics in a negative light. He claimed that he had been moved to secure housing in 1995 as a result of threats posed by Islamic extremists. The applicant also claimed to fear harm from government authorities and the security forces by reason of his failure to return to Algeria after the Olympic Games. At the hearing he claimed that he feared the security forces of the Algerian government, that in the past security people had supervised his work and sometimes directed him to work long hours and that after he made a complaint about the security people a file was opened on him. He believed that things would have been put on the file that were not true. He also believed that the fact that he had not returned to Algeria would raise suspicions in the minds of the authorities, who may believe that whilst in Australia he may have divulged sensitive information known to him through his employment. The Tribunal also considered whether the applicant had a well-founded fear of persecution as a returning Algerian asylum seeker.
The Tribunal was satisfied that the applicant was an Algerian television editor with Algerian National Television who came to Australia with the Olympic team to cover the Olympic Games. The Tribunal accepted that from 1992 to 1997 the applicant had received threatening phone calls regarding his employment with the television station and that in 1995 he moved into secure accommodation provided by the Algerian government, where he lived until he came to Australia in 2000.
The Tribunal referred to independent country information in relation to the situation in Algeria, the actions of militant armed groups, and the position of journalists. It accepted that, based on what had occurred in the mid-1990s, it was understandable that the applicant would feel some apprehension and fear on returning to Algeria. However it found that country information indicated that the militant groups no longer targeted journalists and that the threat of targeted harm to journalists in Algeria was now remote. It also found that there were remaining armed groups who now engaged in indiscriminate violence against the civilian population, particularly in rural areas of Algeria, but that strong government measures had resulted in the reduction of violence against the civilian population, particularly in the cities and large towns. The Tribunal was not satisfied that there was a real chance that the applicant would face persecution from members of militant armed groups for reasons of his perceived support for the current government arising from his previous employment as a television editor.
Nor did the Tribunal accept that the applicant faced harm from government authorities for reason of his failure to return with the Algerian Olympic team in 2000. It did not accept that the security forces in Algeria kept a file on the applicant because he made complaints about their demands and his working conditions as he had claimed. It did not accept that government authorities would assume that he had divulged sensitive information obtained through his employment. It noted that his employment in Australia had not given him any opportunity or venue to disclose such information. Further he did not appear to have any particularly sensitive information which could not be publicly accessed. The Tribunal did not accept that the applicant’s failure to return to Algeria on its own was sufficient to cause the authorities to have an adverse interest in the applicant if he returned to Algeria now or in the foreseeable future.
The Tribunal also addressed the situation of returning Algerian asylum seekers. It found that they had nothing to fear unless they came within particular categories. Country information was found to indicate that although they may be questioned on their return they would be quickly released and be able to return to their normal lives. The Tribunal found that the most recent information suggested that it was unlikely that any Algerian would ‘disappear’ these days and that freedom of the press and freedom of expression had significantly increased. It had regard to the fact that the applicant, as a technician, did not have the same profile as a journalist, that he was not a high profile figure whose asylum application had been made public and had no criminal convictions or association with proscribed Islamic groups. The Tribunal noted that members of the applicant’s family were safe in Algeria and had not been questioned or detained by government authorities. It also noted that he had been chosen by his employer, a government agency, to come to Australia and had had no difficulty in leaving Algeria. The Tribunal was not satisfied the applicant was of any adverse interest to the authorities when he left Algeria, or that he had done anything in Australia which would cause the Algerian authorities to have an adverse interest in him if he returned to Algeria now or in the foreseeable future. The Tribunal was not satisfied the applicant faced a real chance of persecution from either Islamic groups or government authorities for any Convention-related reason if he returned to Algeria now or in the foreseeable future. It concluded that it was not satisfied that he had a well-founded fear of persecution for any Convention-related reason.
The Tribunal noted that information submitted by the applicant indicated that there was still a threat of indiscriminate violence from militant armed groups and the government response and that the applicant had told the Tribunal of fears he held because of the violence over the past ten years in Algeria. The Tribunal accepted that the applicant did not wish to return to a situation which placed him at risk of random violence, but observed that it was not able to consider his application on humanitarian grounds.
In these proceedings the applicant relies on an amended application filed in court on 22 February 2005. The amended application contains three grounds.

‘Real chance test’ issue

The first ground relied on by the applicant is as follows:
“The Tribunal (at CB 121), after noting the ‘extraordinary period of violent attacks and killings’ of journalists between 1993 and 1997, stated that the situation had subsequently improved and, with one exception, ‘no journalists have been murdered in Algeria since 1998’. The Tribunal went on to find that it was ‘not satisfied that there is a real chance that the applicant would face persecution from members of the militant armed groups for reason of his perceived support for the current government arising from his previous employment as a TV editor’. However, in making this finding, the Tribunal failed to consider the possibility that the situation in Algeria would deteriorate following the applicant’s return to Algeria and return to or towards the situation experienced between 1993 and 1997. On this basis, the Tribunal failed to properly apply the real chance test and fell into jurisdictional error.”
It was submitted that country information before the Tribunal (which recorded events up to about the end of 2002) indicated that the recent political history of Algeria had been volatile and that violence continued in Algeria. It was contended that it was clear on this information that at the time of the Tribunal decision there was neither long-term nor medium-term political stability in Algeria. The applicant submitted that, in these circumstances, in making its findings about the applicant’s claimed fear of Islamic militants as part of its inquiry into the foreseeable or immediately foreseeable future, it was necessary for the Tribunal to address the question of whether the political situation in Algeria would stay the same. It was said that there was no indication in the Tribunal reasons for decision that the Tribunal had looked to the future in considering whether the political situation would stay the same or whether it would stabilise. It was contended that as a matter of law the Tribunal was required to engage in speculation about the future and that the circumstances of this case were such that the Tribunal was obliged to speculate as to the political situation into at least the immediate future. It was conceded that where the political situation in the country was stable there was no need for the Tribunal to speculate as to whether the stability would continue, but contended that where the political situation in the country was unstable the Tribunal had an obligation, as a matter of law, to engage in such speculation. It was argued that the Tribunal had erred in failing to consider this matter and hence it failed to properly apply the real chance test giving rise to a jurisdictional error.
Counsel for the applicant drew the court’s attention to the Tribunal findings in relation to the applicant’s claim to fear militant armed groups. He drew a distinction between the manner in which the Tribunal findings were expressed in that part of the reasons for decision and the manner in which the Tribunal had addressed the other bases for the claimed fear of persecution. It was pointed out that in making findings in relation to the other two bases for the claimed fear, the Tribunal had addressed the question of whether the applicant faced a real chance of persecution now or ‘in the foreseeable future’ but suggested that it had not engaged in such inquiry in relation to the claimed fear of militant groups. It was contended that in that context there was no indication in the Tribunal reasons for decision that the Tribunal had looked into the foreseeable or immediately foreseeable future as it was required to do.
In support of this proposition the applicant relied on the decision of the Full Court of the Federal Court in MIMA v Rajalingam (1999) 93 FCR 220 per Sackville J at [60]:
“It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a ‘real substantial basis’ for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.”
It was contended that, while Sackville J was considering a need for speculation in relation to past events, there was no reason why this proposition should not also apply to speculation concerning future events. Support for this proposition was also said to be found in MIMA v W64/01A [2003] FCAFC 12 in which French J, at [37], stated that in assessing claims and evidence before it the Tribunal is required to undertake a process of ‘looking to the future’ which is the ‘essence of the Chan test’ (MIEA v Wu Shan Liang (1996) 185 CLR 259 at 278 (at 37) and pointed out that the ‘future-looking process’ accepted in Wu Shan Liang was elaborated in MIEA v Guo (1997) 191 CLR 559 at 575 as follows:
“Unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”
As French J continued in W64/01A at [37] “The question to be addressed by the Tribunal is whether an applicant has ‘a well-founded fear of persecution for a Convention reason having regard to possible past occurrences and possible future events’ (WAAD v MIMA [2002] FCAFC 399 at [38])”. Also see Kalala v MIMA (2001) 114 FCR 212 at [7] and [11] and note that, as Kirby J stated in Guo at 592:
“The ‘real chance’ test inescapably involved an element of speculation which had to be preserved throughout the review conducted by the Tribunal. This must be so given the imponderables which can affect the chances of future persecution of individuals returned to a country from which they have departed asserting that they are refugees.”
It was contended that, while the Tribunal accurately set out the applicable legal principles in the introductory part of its reasons for decision, this did not mean that the Tribunal had not fallen into error in applying the principles in the body of its decision.
However I am not satisfied that the applicant has established that the Tribunal erred in the manner contended. The Tribunal properly applied the test of whether the applicant’s fear was well-founded and the ‘real chance’ formula as considered by the High Court in Chan Yee Kin v MIEA (1989) 169 CLR 379 and MIEA v Guo (1997) 191 CLR 559. What was said by Sackville J in Rajalingam does not establish that the Tribunal must engage in speculation in the manner contended.
In Chan Mason CJ expressed a preference for the expression ‘a real chance’ in considering whether a fear of persecution was ‘well founded’ because it “clearly conveys the notion of a substantial, as distinct from a remote chance of persecution and because it is an expression which has been explained and applied in Australia” (at 389). Dawson J referred to a chance that was “not remote, regardless of whether it was less or more than 50 per cent” (at 398). McHugh J discounted ‘a far-fetched possibility’ (at 429) and stated that if there was a “real chance that the applicant will be persecuted, his or her fear should be characterised as ‘well founded’ for the purpose of the Convention and Protocol” (at [429]).
The use of alternative formulations for the actual wording of the Convention was addressed in Guo by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 572:
“Chan is an important decision of this court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term ‘well-founded fear’ is to invite error”.
Their Honours went on to state (at 572) that:
“A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.”
The joint judgment in Guo also addressed the manner in which the Tribunal should consider claims that similar events have or have not occurred in the past (or have or have not occurred for particular reasons) in the past in determining the chance that the event or the reason will occur in the future (at 575 – 576). It is that aspect of Guo that was addressed by the Federal Court in Rajalingam, in particular at [53] - [56], and [67] per Sackville J. As Sackville J pointed out in Rajalingam at [55]-[56], it could be seen from Guo that if the Tribunal found that it was only “slightly more probable than not that an alleged relevant event had not occurred, it must take into account the chance that it did occur when determining whether there was a well-founded fear of persecution” and “if, on the other hand, it appears that the RRT had no ‘real doubt’ that its findings were correct, it is not bound to consider whether those findings might be wrong”.
In this instance the Tribunal had regard to the evidence of the applicant’s claims and the independent evidence in relation to the situation in Algeria. It engaged in the necessary assessment of whether claimed events had occurred in the past and considered what this said about the chance of events occurring in the future. While the Tribunal did not use the expression ‘now or in the foreseeable future’ in the particular part of its reasons for decision in which it made findings about the applicant’s claim to fear harm from militant armed groups, it is not in dispute that it correctly set out the applicable legal principles in the introductory part of its reasons for decision. W64/01A (at [40]) cautions against an assumption that the Tribunal pays only lip service to the legal principles it annunciates. In this case, as in W64/01A, the Tribunal reviewed the evidence, consisting of the claims made by the applicant and the independent information, and it addressed the future. I am not persuaded that the absence of the words now or in the foreseeable future in that part of the decision relating to this particular claim reveals a failure to address the future as required. In assessing whether the applicant’s fear was well-founded the Tribunal was obliged to consider, on the evidence before it and in light of the applicant’s claims, whether the applicant faced a real chance of persecution in the reasonably foreseeable future if he returned to Algeria. The Tribunal did consider the situation in Algeria in relation to the reasonably foreseeable future. It did so by reference to independent country information and the applicant’s evidence about his past employment and residence in a city. It considered the likely future circumstances of the applicant if he returned to Algeria in a manner consistent with Chan and Guo. It speculated about whether the applicant faced any real chance of persecutory harm in the future in Algeria. It found that he did not. There was nothing erroneous in the way it went about that task. It did not fail to consider any relevant matter in performing its conclusions.

The Tribunal referred not only to country information about what had occurred in the past in Algeria and in more recent times, it also addressed the future in stating “It is understandable that the applicant would feel some apprehension and fear on returning to Algeria however the country information indicates that the threat of targeted harm to journalists in Algeria is remote.” The Tribunal went on to consider the 1990’s violence and the current situation. As well as addressing evidence of the remoteness of any threat of targeted harm to journalists, indiscriminate violence by remaining armed groups against civilians, particularly in rural areas of Algeria, and country information about steps taken by the government and the degree of success of such steps particularly in the cities and large towns. Relevantly it concluded “The Tribunal has considered the situation if the applicant returns to Algeria and is not satisfied that there is a real chance that the applicant would face persecution from members of the militant armed groups for reason of his perceived support for the current government arising from his previous employment as a TV editor”. Reading the Tribunal decision fairly and as a whole (Wu Shan Liang) I am not persuaded that the Tribunal either failed to identify or to apply the correct test. It plainly looked to the future as required.
Having properly considered whether the applicant’s fears were well-founded, the Tribunal was not required to speculate in specific and express terms about whether present political stability in Algeria might continue on a ‘what if I am wrong’ basis. It had adequately addressed the future in its consideration of what it thought would be likely conditions in Algeria in the foreseeable future. It had engaged in the necessary process of looking to the future. It was for the Tribunal, weighing the evidence before it, to make an assessment of the likely future. It is not for this court to engage in merits review of the decision in that respect (as to which see W64/01A).
In support of the specific argument that the Tribunal had misapplied the real chance test, the applicant relied on what was said by Sackville J in Rajalingam to contend that if a country had a fluid or unstable political situation the Tribunal was obliged, as a matter of law, to speculate as to the political situation into at least the immediate future. However, as Counsel for the applicant recognised, in Rajalingam Sackville J was considering the uncertain past as a part of the process of predicting the future and addressing the need for the Tribunal to take into account the possibility that past events occurred even if it found that they probably did not. It was in that context that his Honour stated at [62]:
“It is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a ‘real substantial basis’ for the applicant’s claimed fear of persecution.”
The reasonable speculation about the future required, and in this case engaged in, by the Tribunal, occurred in quite a different context to the consideration by Sackville J of past events in relation to which, if a Tribunal is uncertain about whether something has occurred, it may take into account the possibility that the past event did take place in considering the future.
As Sackville J said at [67] “Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued.” This underscores the principle that his Honour was explaining in Rajalingam. That is, if the Tribunal has firmly reached a conclusion that a past event did not occur, then it need not consider that it may have actually occurred (against its own finding) in considering the future. Such a statement of principle says nothing about whether the Tribunal is obliged to speculate about future hypothetical situations (also see SZATE v MIMIA [2004] FMCA 532 at [24]-[25]). It is notable that the other authorities relied upon by the applicant in support of this proposition (Kalala v MIMA (2001) 114 FCR 212 and MIMA v W64/01A [2003] FCAFC 12) were, as was Rajalingam, concerned with a consideration of whether the Tribunal had properly addressed claimed past events and not whether the Tribunal had properly considered the future. This ground is not made out.

‘Failure to inform’ issue

It was contended “The applicant told the Tribunal … that ‘he made a complaint about the security people and as a result a file was opened on the applicant’. The Tribunal rejected this claim. The Tribunal failed to warn the applicant that it did not believe this claim and give him an opportunity to comment. On this basis, the Tribunal denied the applicant procedural fairness”.
However, the applicant has not adduced any evidence to make good the factual assumption underpinning this ground, namely that he was not warned by the Tribunal that it proposed to reject his claim that he had made a complaint about the security people and as a result a file was opened and that he was not given an opportunity to comment. There is no transcript of the Tribunal hearing before the court and this is not a case in which it is appropriate to infer that this matter (or any other matter) was not raised by the Tribunal with the applicant during the course of the Tribunal hearing (see NAOA v MIMIA [2004] FCAFC 241). This is not a case in which there are unusual circumstances, such as those considered in MIMIA v NAMW [2004] FCAFC 264 (at [121] to [122]), which make it appropriate to draw such an inference. As the evidentiary basis for such a claim is not established, the applicant cannot succeed on this ground. Hence, it is not necessary for me to consider whether, if the applicant had not been ‘warned’ by the Tribunal, there was any lack of procedural fairness (see however Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 – 592).

‘DFAT cable’ issue

Finally it was contended “The Tribunal found … that the applicant did not ‘face harm from government authorities for reasons of his failure to return with the Algerian Olympic Team in 2000’. However in making this finding, the Tribunal failed to have regard to a DFAT cable dated 13 November 2000 which stated that the consequences for an Algerian of not returning on time from an official overseas engagement ‘could be severe’. On this basis, the Tribunal fell into jurisdictional error”.
The Tribunal rejected the applicant’s claim that as a result of his actions he would be punished by the Algerian government for staying in Australia longer than was expected. It did not accept that the applicant faced harm from government authorities for reason of his failure to return with the Algerian Olympic Team in 2000. It was contended that there was a DFAT cable dated November 2000 (referred to by the delegate) on this precise issue which the Tribunal should have considered. It relevantly stated in response to a question as to what were the consequences if any of not returning on time from the official engagement overseas and/or applying for refugee status: “The source said that given the authority’s sensitivity to the issues concerned, the consequences could be severe, and could include arrest, detention and sometimes torture. Failure to return on time … could be interpreted by the authorities as a threat to Algeria’s image”. In its extensive review of country information the Tribunal did not refer to this cable. It referred to other country information, some of it more recent than the DFAT cable. However it was submitted that the DFAT cable remained the most relevant piece of country information responsive to the applicant’s claim and that the Tribunal failure to consider the cable amounted to ignoring relevant material giving rise to jurisdictional error.
The DFAT cable was one of the items of evidence referred to in the decision of the delegate of the respondent dated 8 June 2001. The Tribunal expressly stated in its reasons that it had before it the Department’s file, including the delegate’s decision record, and that it had had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. The Tribunal is not obliged to refer to every piece of evidence before it in giving its reasons: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [46] and the Tribunal reasons must not be read with an eye too keenly attuned to the perception of error, MIEA v Wu Shan Liang (1996) 185 CLR 259.
It was for the Tribunal, and not the court, to determine what was the ‘most relevant’ country information and for the Tribunal to determine the relevance and weight to be attributed to the various pieces of evidence before it including the cable. As the Full Court of the Federal Court observed in Chand v MIEA (unreported, FCA, Full Court 1997) the Tribunal was: “… entitled to attribute greater weight to one piece of evidence as against another and to act on its opinion that one version of the facts is more probable than another.”
Moreover, even if on some objective view the cable was the “most relevant” piece of country information, as Kenny J stated in MIMA v Rajalingam (1999) 93 FCR 220 at [146], “A Tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning.”
In this instance the Tribunal gave weight to recent country information to which it referred. The Tribunal found that asylum seekers might be questioned on their return (which was consistent with the information in the cable) but that they would be quickly released and able to return to their lives (a matter about which the cable was silent). The cable also stated that “there was a reasonable probability that the authorities would at least call in the individuals concerned to ask the reasons for the failure to return on time or the basis for the application for refugee status.” Importantly, however, the Tribunal found that ‘the most recent information’ suggested that it was unlikely that any Algerian would ‘disappear’ at that time. This is consistent with independent information referred to in the Tribunal reasons for decision about the questioning of returning asylum seekers and their detention for several days and also with information that in the last couple of years there had been no known cases in any European country of former asylum seekers ‘who were maltreated or tortured upon their return’. The Tribunal referred to a Canadian report, which post-dated the cable in issue, which referred to evidence that deportees had not complained of their treatment by Algerian authorities on their return and that no incidents of such mistreatment had been brought to the attention of embassies concerned. Further, the Tribunal also referred to independent information from an expert in Middle Eastern/North African studies suggesting that the risk of mistreatment on return depended on whether the individual had an imputed association with the Front Islamique du Salut (FIS) and whether the authorities had a ‘dossier’ on the individual. In this instance the Tribunal did not accept that the security forces kept a file on the applicant. It addressed the question of his profile and noted that he had no criminal convictions and was not a member of or sympathiser with any of the prescribed Islamic groups. In all the circumstances of this case, where the Tribunal not only specifically stated that it had regard to information referred to in the delegate’s decision (which included the DFAT cable), but also referred to the ‘most recent information’ in a manner consistent with the independent information cited in its reasons for decision, it cannot be said that in failing to refer expressly to the particular cable it ignored relevant material giving rise to jurisdictional error.
It has not been established that the Tribunal fell into jurisdictional error. Accordingly the application must be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 24 March 2005.