SZIGH v Minister for Immigration
[2008] FMCA 1203
•28 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIGH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1203 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered all claims made by the applicant – whether the Refugee Review Tribunal failed to have regard to country information provided by the applicant. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91R(3); 424A; 474; pt.8 div.2 |
| Shi v Migration Agents Regulation Authority [2008] HCA 31 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZIGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1506 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 8 August 2008 |
| Date of last submission: | 8 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Killalea |
| Solicitors for the Applicant: | Ms R. Grant, Eddy Newman Lawyers |
| Counsel for the Respondent: | Mr J. Mitchell |
| Solicitors for the Respondent: | Ms L. Buchanan, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1506 of 2008
| SZIGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 8 May 2008 and handed down on 15 May 2008.
The applicant claims to be from Algeria of Berber ethnicity and of Christian faith (“the Applicant”).
The Applicant arrived in Australia on 12 July 2005 having departed legally from Algiers Airport on a passport issued in his own name for which he claimed to have paid a bribe and a temporary business visa issued in July 2005.
On 11 August 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
On 15 September 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 28 September 2005, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 15 December 2005, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 24 May 2007, by consent, this Court remitted the matter back to the Tribunal for determination according to law.
On 8 May 2008, a differently constituted Refugee Review Tribunal (“the Tribunal”) affirmed the decision of the Delegate not to grant a protection visa.
On 12 June 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The Applicant’s claims and the Tribunal’s decision
The Applicant’s claims for a protection visa and the review by the Tribunal of the Delegate’s refusal to grant the Applicant a protection visa are accurately summarised in the written submissions of counsel for the First Respondent as follows:
“2.2The Applicant claimed to fear persecution for reason of his religion as a Christian and for reason of his Berber ethnicity. Specifically he claimed that (see CB 30-4):
(a)In August 2004 his nephew was killed by Islamic terrorists and at the funeral the Applicant gave a speech that insulted Muslims and terrorists.
(b)His father was hated for being a Christian and being outspoken and consequently the family did not live in their house in the village.
(c)In 2003 he was assaulted for wearing a crucifix. Subsequently his assailant and seven others went to the Applicant’s house and threatened the Applicant’s father.
(d)In September 2004 the Applicant opened his house for Christians to use as if it were a church. As a result the Applicant “had lots of problems with the Muslims” and they damaged the roof and door of the house.
(e)In December 2004 the Applicant was attacked by Islamic extremists whilst driving his taxi. He was injured and his taxi was destroyed. He claimed he was attacked for being outspoken against the Muslim religion and extremists. He reported the incident to the police but they said they could not assist.
2.3Based on the above claims the Applicant claimed that he would not be safe anywhere in Algeria and that he would not be protected by the police.
2.4On 15 September 2005, a delegate of the Minister refused the Applicant's protection visa application: CB 46-57.
3. Application for review
3.1On 28 September 2005 the Applicant applied to the Tribunal for review of the delegate's decision and on 17 November 2005, the Applicant attended a hearing of the Tribunal at which he gave evidence: CB 58-61; 83.
3.2On 10 January 2006 the Tribunal handed down its decision to affirm the delegate’s decision: CB 87. That decision was subsequently quashed by consent orders of the Federal Magistrates Court of Australia made on 24 May 2007: CB 169. The matter was remitted to the Tribunal.
3.3On or about 3 March 2007 the Tribunal as reconstituted received an email from a person claiming to be Applicant's brother (the “Dob-in Letter”): CB 541. The email revealed that the Applicant had not had problems with terrorists in Algeria, that he had sought refuge from the United Nations High Commission for Refugees (the “UNHCR”) in Thailand before returning to Algeria in 2000 and that the Applicant was now asserting the same claims in Australia.
3.4On 8 July 2008 the Tribunal sent an e-mail to the UNHCR seeking confirmation as to whether the UNHCR had any record of a person with the name of the Applicant and whether it could provide any background information in relation to that person: CB 221.
3.5On 16 August 2007 the UNHCR responded: CB 220. It confirmed that the Applicant arrived in Thailand on 18 December 1999, was held in detention, registered with the UNHCR on 19 July 2001 and subsequently departed for Algeria.
3.6On 17 August 2007 the Tribunal invited the Applicant to comment on the information conveyed by the UNHCR correspondence and the Dob-in Letter (the “First 424A Letter”): CB 214-5. The Tribunal stated that the information was relevant to the credibility of the Applicant’s claims.
3.7On 31 August 2007 the Applicant responded: CB 216-7. The Applicant denied the allegations in the Dob-in Letter and confirmed the information with regard to his stay in Thailand.
3.8On 5 September 2007 the Tribunal sent a further email to the UNHCR requesting all details held in relation to the Applicant's claims made while in Thailand: CB 225. The Applicant had earlier consented to his details being provided by the UNHCR: CB 218.
3.9On 14 November 2007 the UNHCR responded enclosing an interview report: CB 227. The interview report made reference to a written statement made by the Applicant a copy of which was subsequently sent to the Tribunal by the Applicant by letter dated 24 April 2008 (see CB 429).
3.10On 6 December 2007, the Applicant attended a hearing before the Second Tribunal together with a number of witnesses and his legal representative: CB 302. At this hearing the Applicant claimed that he had been baptised as a Catholic whilst in Australia.
3.11On 7 December 2007 the Tribunal invited the Applicant to comment on the information conveyed by the UNHCR interview report (the “Second 424A Letter”): CB 346-8.
3.12On 24 April 2008 the Applicant made further submissions. In those submissions he claimed to fear persecution: (see CB 396ff):
(a) by Algerian authorities and/or lack of state protection;
(b)by Islamic fundamentalists and lack of state protection;
(c)for reason of his religion and associated imputed anti-Islamic political opinion;
(d)for reason of his imputed membership of a particular social group of people who are non-Islamic and/or those who express western attitudes;
(e)for reason of his membership of a particular social group, namely the family; and
(f)for reason of his membership of a particular social group, namely people who have allowed the family house to be used as a church.
3.13On 15 May 2008 the Tribunal handed down its decision. The Tribunal found the Applicant to be generally lacking in credibility due to the many inconsistencies in his claims over time. The Tribunal did not accept that:
(a) The Applicant or his family were Christians in Algeria.
(b)The Applicant had formalised his Catholicism in Australia otherwise than in furtherance of his claims for protection. It therefore disregarded his activity in Australia.
(c)The Applicant’s opposition to fundamentalist tenets of Islam gave rise to well founded fears.
(d)The Applicant’s fears arising from allowing the church to use his house gave rise to well founded fears.
(e)The Applicant’s fears arising from his westernisation would result in his persecution.
(f)The Applicant’s fears arising from his claiming asylum in Australia would become known to people in Algeria, other than his immediate family.
(g) The Applicant left Algeria twice out of fear.
(h)The Applicant would support Christianity or speak out against Islam or Islamic extremism if he returned to Algeria.
(i)The Applicant or his family would face persecution as a result of his Berber ethnicity.
(j)The Applicant might face persecution arising from any real or imputed political opinion due to the statements claimed to have been made at his relative's funeral.
3.14The Tribunal did not accept that there was a real chance that the Applicant would suffer harm amounting to persecution in Algeria for any Convention reason should he return in the foreseeable future.”
The proceeding before this Court
The Applicant was represented before this Court by Mr Killalea, of counsel. At the commencement of the hearing, by consent, counsel for the Applicant was granted leave to rely upon and file in Court a second amended application. However, following the luncheon adjournment and the completion by counsel for the Applicant of submissions in support of the second amended application, counsel for the Applicant sought leave to rely upon a third amended application. Again, by consent, leave was granted to the Applicant to rely upon the third amended application.
The grounds of the third amended application are as follows:
“2. The RRT failed to attain, or failed to exercise, jurisdiction, by reason that the RRT erred in law in failing to take into account a relevant consideration
Particulars
The RRT stated (CB 517, [50]):
“While I have considered carefully country information submitted by the applicant, I prefer the assessment contained in the two reports of the United States Department quoted above”
The RRT ignored the country information submitted by the applicant (the International Religious Freedom Report which 2007 released on 14 September 2007, by the US State Department, Bureau of Democracy, Human Rights and Labour on Algeria; which information was later in time and also released by the same US State Department).
Including: (CB 411.2)”
“During the reporting period, terrorist violence based on religious extremism increased after the GSPC was recognized by al-Qa’ida in September 2006 and changed its name in February 2007 to al’Qa’ida in the Islamic Maghreb (AQIM)”
3. The RRT failed to attain, or failed to exercise, jurisdiction, by reason that the RRT erred in law in constructively failing to exercise jurisdiction in (a) misconceiving its duty, (b) failing to apply itself to the question of whether the applicant was a person owed protection obligations in terms of para 36(2)(a), Migration Act 1958, and/or (c) acting capriciously and/or irrationally, in relation to “country information submiited by the applicant”
Particulars
Repeat particulars at Ground 2”
At the heart of the Applicant’s complaint as articulated by Mr Killalea was a contention that the Tribunal failed to have regard to relevant country information provided by the Applicant in considering the Applicant’s claim of a fear of persecution if he were to return to Algeria by reason of his “westernization”.
In support of that contention, counsel for the Applicant referred to a number of extracts from submissions provided to the Tribunal by the Applicant’s adviser. They are particularised as follows:
15.1Letter dated 9 July 2007:
“Please note that further submissions in respect of the above and of the applicants claims will be made as soon as possible however, at this stage we ask the Tribunal to note the above provides further substantiation of the applicant’s claims as previously submitted and also raise new claims relating to the applicant’s baptism as Catholic, the fact that he has been living with Selamawit for a year, the applicant’s ‘westernization’ through his activities in Australia and that the applicant would express, and would not be able to hide, his religion and non-Islamic and western outlook if forced to return to Algeria where he would face persecution and could not obtain protection”
15.2Letter dated 5 December 2007, enclosing a statutory declaration by the Applicant:
15.2.1 “5. Since I have been in Australia I have been baptised Catholic. If I were sent back to Algeria I would continue to practice my religion, for my whole life, I would go to church and I think I would be seen to be a different man from others in Algeria because of my time in Australia and because now I am a strong Christian. I am sure that people in Algeria would notice me as a Christian and some people in Algeria who know me already know m and my father as Christian. Before they only knew I had an interest but now it is stronger. My sister and brother became interested in Christianity after my father died but they are not as involved as me and they are not baptised.”
15.2.2 “8. Also since being in Australia I have moved in with my girlfriend Selamawit Woldemichael (‘Selamawit’) and we are very happy together.”
15.2.3 “9. A few weeks ago my mother said to me words to the effect of “people in the village are talking about you. If you return they will kill you.” My sister also told me that my mother organised a party because I became Catholic and because of the party, people in my village know I became a Catholic and they hate me even more. They are shocked about that even more and I also told my sister that Selam and I are living together and people from the family and neighbours might also know. People in my village would be envious about my being in Australia and they might wish me ill and tell the extremists about me.”
15.2.4 “10. I am comfortable in Australia, I am happy here, I am free, I can go to Church, and no one talks against you. I have always had to be careful in Algeria but now it is even worse. It would not possible for me live in Algiers or anywhere safely in Algeria because the Muslim extremists are everywhere. I fear that if I went back to Algeria I would be killed and tortured for the above.”
15.3Letter dated 24 April 2008:
15.3.1 “Moreover, in the time the Applicant has been away from an Islamic state in Australia he has been batised and formally converted to Catholism and has adopted a western mode of behaviour, outlook and values such as by living with his girlfriend as his common law wife thus further breaching fundamental tenets of Islam.”
15.3.2“Due to the rise of fundamentalism in Algeria, the vision of a fundamentalist Islamic Algeria being propagated by the Muslim extremists and the inability to obtain protection and the targeting of Christians and opponents, [the Applicant’s] non adherence to the religious beliefs of the Islamic extremists can give rise to fears of persecution not only to the Convention ground of religion but also his political opinion and membership of a particular social group for example:
1. particular social group of “Algerians who have transgressed the religious tenets and/or social mores of fundamentalist Islamic society”.
2. particular social group of “Algerians who do not have protection and who have transgressed the religious tenets and/or social mores of fundamentalist Islamic society”.
3. Particular social group of the family.”
15.3.3 “The applicant has also consistently claimed that his family are not liked by many in his village and in addition there have been people in Australia who have written to authorities to spread un truths about the applicant, presumably to cause him harm, and it is not known whether the culprit or culprits are now in Algeria or are likely to continue attacks on the applicant.
Further the independent country information below and provided previously, outlines serious concerns of increased terrorist activity including in the applicants area of Boudjima.”
15.3.4 “[T]he International Religious Freedom Report 2007 Released by the US State Department Bureau of Democracy, Human Rights, and Labour on Algeria on September 14, 2007 (‘the Report’) provides a worrying picture for the state of religious freedom in Algeria as follows:
…Terrorist violence based on religious extremism increased after the terrorist organization Salafist Group for Preaching and Combat (GSPC) was recognized by al-Qa’ida in September 2006 and changed its name in February 2007 to al-Qa’ida in the Islamic Maghreb (AQIM).”;
15.3.5 “Although the Report states that there were no reports of religious prisoners or detainees by the state actors, the above Ordinance was newly enacted during the reporting year and the situation in relation to Islamic terrorists is stipulated a serious threat including as follows in the section entitled ‘Persecution by Terrorist Organizations’:
The country’s decade-long civil conflict pitted Islamist terrorists belonging to the Armed Islamic Group and its offshoot, the Salafist Group for Preaching and Combat (GSPC), against the Government. While estimates vary, approximately 100 thousand to 150 thousand civilians, terrorists, and security forces have been killed during the past 15 years. Islamist extremists have issued public threats against all “infidels” in the country, both foreigners and citizens, and have killed both Muslims and non-Muslims. During the reporting period, terrorist violence based on religious extremism increased after the GSPC was recognized by al-Qa’ida in September 2006 and changed its name in February 2007 to al-Qa’ida in the Islamic Maghreb (AQIM). As a rule the majority of the country’s terrorist groups do not differentiate between religious and political killings. (The International Religious Freedom Report 2007 Released by the US State Department Bureau of Democracy, Human Rights, and Labour on Algeria on September 14, 2007).”;
15.3.6 “Most cases of harassment and security threats against non-Muslims are committed by radical Islamists who are determined to rid the country of those who do not share their extremist interpretation of Islam. Moderate Muslim religious and political leaders publicly crticized acts of violence committed in the name of Islam such as the April 11, 2007 simultaneous bombings of the Prime Minister’s office in downtown Algiers and 2 police stations that killed 33 persons and injured hundreds. Despite a law banning demonstrations, the Government permitted, and government employees attended in large numbers, an antiterrorism rally in the days following the attack. (Section III. Societal Abuses and Discrimination of the International Religious Freedom Report 2007).”
15.3.7 “It is submitted that as a result of [the Applicant’s] religious beliefs in Catholism and in the rejection of the Muslim extremists and association of them with terrorism, together with the fact that he and his family have been disliked by villagers for many years due to the applicant’s and his father’s Christianity and discussion about it and expression of it, that the applicant has been living in the west for such a long time, has been baptised Catholic in Australia and has been living with his girlfriend the fact of which is known to his family being known is at risk of the following violations of core human rights if returned Algeria including:
- accusations of violations of Islamic law and being un-Algerian and an inability to obtain the protection of the rule of law or fair trial;
- Imprisonment and fines;
- execution without protection;
- cruel, inhuman and degrading Islamic punishments without protection;
- denial of freedom of religion to follow Catholisism;
- denial of freedom of religion to reject fundamentalist Islam;
- denial of the freedom of expression of his Catholismism;
- denial of the freedom of expression to reject Islam.”
15.3.8 “4. Concluding Submissions
Notwithstanding that the Applicant has admitted that as a result of his fears of being sent back and of being found out as having been imprisoned for using false documents he regretfully initially changed the date of his nephews murder and funeral and he admits that there other small mistakes in his applications, we submit that his overall claims and fears have been consistent throughout the refugee process and include, individually and cumulatively:
- fears of persecution by Algerian authorities and/ or lack of adequate state protection against any such persecution; and or
- fears of persecution by Islamic fundamentalists/militants and lack of adequate state protection against any such persecution; and/or
- fears of persecution through less favourable/discriminatory treatment and denial of fundamental freedom of religion and opinion by or before the law and/or in the protection of the human rights of the rights of non Muslims; and/or
- fears that the above would occur for reason of the applicant’s religion, his expression of his religion and/or membership and/or imputed membership of a particular social group of people who are non-Islamic and/or westerners and/or those who exude or express western attitudes and view points and also due to his religion and/or actual or imputed political opinion of being against the Islamist religion and state of Algeria; and/or
- Fears of persecution as a member of the particular social group of the family;
- Fear of persecution for being in the particular social group of people who have allowed the family house to be used as a church.
The country information confirms that [the Applicant’s] fears of persecution in the foreseeable future are well founded. The above ordinance 06-03 together with was not law when the Applicant left Algeria and the passage of the law together with independent country information confirms religious intolerance, as well as intolerance of ‘western’ values has increased significantly since the applicant’s departure from Algeria and even since the reporting period covered in the above Freedom of Religion Report
However, we submit that the evidence of the applicants previous applications, not withstanding that there are some discrepancies which we submit can be explained with the passage of time, interpreting difficulties, the applicant’s fear and psychological issues, we submit there is evidence is sufficient to satisfy the Tribunal that even if past event were not at play, were the applicant to return to Algeria, and were his Catholisim and/or westernization recognized by fundamentalists or if it became known by the legal authorities that the applicant had incited people away from Islam, he would face, imprisonment, or physical assault and even death at the hands of religious fundamentalists. Such treatment clearly would amount to “serious harm”, examples of which are set out in section 91R(1) of the Act, and therefore to persecution.
In a society such as Algeria’s, we submit that the Tribunal should not expect that the applicant would be able to disguise his religious beliefs in anything other than the short term. We submit that sooner or later, questions would be asked, comments would be made, and conclusions drawn. It is our submission that [t]he Tribunal should therefore be satisfied that there is a real chance that the applicant’s religious belief will be identified by others, and that he will be at risk of the harm he fears and that the Applicant has a well-founded fear of persecution in Algeria for reasons of his religion and or political opinion and/or membership of the particular social group.”
15.4Letter dated 2 May 2008:
“In our submissions the above show that the applicant is exposed to an even greater risk of persecution for actual or imputed region, political opinion or membership of a particular social group if returned due to recent developments.”
These particulars are discussed below.
Tribunal’s findings
The Tribunal found the Applicant not to be a credible witness and comprehensively rejected his claims of being a Christian in Algeria and rejected the Applicant’s claims relating to attacks on him or his family by terrorists in Algeria. The Tribunal was not satisfied that either the Applicant or his family were Christians and did not accept that they had been or that there was a real chance that they would be persecuted for reason of their religion or their Berber ethnicity. Whilst the Tribunal did accept that the Applicant may have a well-founded fear of persecution from Islamic militants, such persecution would not be because of his Berber ethnicity.
The Tribunal also rejected the Applicant’s claim of a fear of persecution by reason of any actual political opinion or imputed political opinion because of the Applicant’s or his father’s statements following the death of his cousin or nephew on the basis that the Tribunal is not satisfied that that event occurred at all. The Tribunal found that there was no convincing evidence before it to support a claim that the Applicant had a real chance of harm by reason of his political opinion.
In reaching its conclusion in respect of the Applicant’s claims, the Tribunal stated the following:
“In coming to my overall conclusion on the applicant’s claims, I have also taken into account that the applicant, according to his own evidence to the Tribunal, returned to Algeria from Thailand voluntarily in 2002 and did not leave again until 2005, when he came to Australia. I have also taken into account that fact that, according to his own evidence before the Tribunal, other than himself, his family remains in Algeria in his home village.”
Applicant’s claim of “westernisation”
In relation to the Applicant’s claim of having become westernised in Australia because he was baptised and lived with his girlfriend, the Tribunal found that many people in Algeria were “westernised” and “that alone would not cause problems amounting to persecution.” In the circumstances, the Tribunal had regard to the Applicant’s claim of “having been westernised” and found that such a claim was not, by itself, capable of amounting to persecution in Algeria.
Otherwise, pursuant to s.91R(3) of the Act, the Tribunal disregarded the Applicant’s conduct in Australia in support of his protection visa application on the basis that it was not satisfied that such conduct was not engaged in other than for the purpose of supporting his refugee claims.
The particulars referred to in 15.1, 15.2, 15.3.1, 15.3.3 and 15.3.7 above relate solely to the Applicant’s conduct in Australia. Pursuant to s.91R(3) of the Act, the Tribunal is obliged to disregard that conduct in considering whether the Applicant has a well-founded fear of persecution in Algeria rather if he were to return to Algeria by reason of not being an Islamic militant.
Country information
The particulars referred to in 15.3.4, 15.3.5 and 15.3.6 above relate to the country information to which the Tribunal had regard.
Counsel for the Applicant submitted that, in considering the Applicant’s claims, the Tribunal should have had regard and given weight to a report by the US State Department Bureau of Democracy, Human Rights, and Labour on Algeria, dated 14 September 2007, in which it stated:
“Islamist terrorists continued to justify their killing of security force members and civilians by referring to interpretations of religious texts. Terrorist violence based on religious extremism increased after the terrorist organization Salafist Group for Preaching and Combat (GSPC) was recognized by al-Qa’ida in September 2006 and changed its name in February 2007 to al-Qa’ida in the Islamic Maghreb (AQIM).”
The 2006 United States State Department Report stated that there was a “generally amicable relationship amongst religious groups in society” in Algeria and that “in general society tolerates foreigners who practice faiths other than Islam.” The 2006 Report did say, however, that “citizens who renounce Islam generally are ostracised by their families and shunned by their neighbours” and that the government does not usually become involved in such disputes. The report stated that:
“The majority of cases of harassment and security threats against non-Muslims come from radical Islamists who are determined to rid the country of those who do not share their extremist interpretation of Islam.”
A copy of this report was also given to the Tribunal by the Applicant’s adviser in support of the Applicant’s review application.
In relation to that country information, the Tribunal stated as follows:
“While I have considered carefully country information submitted by the applicant, I prefer the assessment contained in the two reports of the United States State Department quoted above. In coming to that conclusion, I examined also reports in the French language (a language with which I am very familiar) of the activities of Christians in Algeria. For example, Valeurs Actuelles, in 2004, contained an article entitled ‘Avec les chretiens de Tizi Ouzou’, (With the Christians of Tizi Ouzou) which included the following statement (my translation): ‘The rejection of Islam is a reality in Kabylie and, I am told, is even gaining in the so-called ‘Arab’ Algeria, beginning in large cities, such as Algiers and Oran.’”
Counsel for the Applicant submitted that the Tribunal ignored the 2007 evidence of an increase in violence in considering the Applicant’s claims of a fear of persecution because of his westernisation and membership of a particular social group, being all those persons in Algeria who are not Islamic extremists.
However, the Tribunal stated that it “considered carefully country information submitted by the applicant.” In the circumstances it did not “ignore” the 2007 information. A fair reading of the Tribunal’s decision record makes clear that it did have regard to the 2007 information.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal did consider all country information before it, including the 2007 country information provided by the Applicant. The Tribunal’s finding that it preferred the 2006 report in preference to the 2007 material was a finding of fact open to it on the evidence and material before it and for which it provided reasons. It is well established that it is a matter for the Tribunal the weight that it gives to any such country information and the use that it may make of it (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]; VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [32]).
Accordingly, it was for the Tribunal to put such weight as it considered appropriate on the evidence and material before it. Certainly, the 2006 country information acknowledged the threats against non-Muslims from “radical Islamists who are determined to rid the country of those who do not share their extremist interpretation of Islam.”
In any event, the Tribunal rejected the Applicant’s claims of a fear of persecution for a Convention related reason on the basis that it did not believe his claims of past persecution and the fact that his family remained in his home village in Algeria. Further, the Tribunal was not satisfied that the Applicant was a Christian in Algeria. Further, the Tribunal rejected the Applicant’s claims of having opposed fundamentalist tenets of Islam or having failed to comply with fundamental tenets of Islam. Accordingly, based on the Tribunal’s findings, the Applicant is not a person “determined to rid the country of those who do not share their extremist interpretation of Islam”.
Whether Tribunal was required to prefer 2007 country information
In a further submission, Counsel for the Applicant referred the Court to Shi v Migration Agents Regulation Authority [2008] HCA 31 (“Shi”) in support of the proposition that the Tribunal was obliged to prefer the 2007 country information over the 2006 country information. Certainly, administrative decision makers are generally obliged to have regard to the best and most current information available (Shi at [41]).
However, the only difference identified by counsel for the Applicant in the 2007 material and 2006 material was that in the 2007 material there was reference to an increase in violence. The Tribunal had found that the Applicant was not a Christian in Algeria, had not suffered past harm in Algeria and otherwise rejected the Applicant’s claims of persecution for a Convention reason. The increase in violence cannot affect those findings by the Tribunal where those findings are at the heart of the Tribunal’s reasons for affirming the decision under review. The 2006 information clearly referred to the existence of violence by fundamentalist Islamic extremists in Algeria. However, the Tribunal found that there was not a real chance that the Applicant would suffer real harm amounting to persecution in Algeria for any Convention related reason.
Change of name of militant groups
Counsel for the Applicant also contended that the Tribunal should have had regard to the change of name by the militant groups in February 2007 to al-Qa’ida in the Islamic Maghreb (AQIM). However, there was no evidence before the Tribunal that a change of name by the militant groups placed the Applicant at any greater risk. In light of the Tribunal’s adverse findings, again, that information could not have affected the Tribunal’s determination that the Applicant did not have a well-founded fear of persecution for a Convention reason.
Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Particular social groups
The Applicant identified at 15.3.2 particular social groups as:
(a)“Algerians who have transgressed the religious tenets and/or social laws of fundamentalist Islamic society”;
(b)“Algerians who do not have protection and who have transgressed the religious tenets and/or social laws of fundamentalist Islamic society”; and
(c)“Particular social group of the family.”
In relation to (a) above, the Tribunal did not accept that the Applicant was a member of such a group.
In relation to (b) above, again, the Tribunal did not accept that the Applicant had transgressed the religious tenets or social laws of fundamentalist Muslims.
In relation to (c) above, the Tribunal rejected The Applicant’s claim that his family had suffered harm amounting to persecution.
In relation to particular 15.3.8, this particular also seeks to articulate further social groups, again, without evidence of the existence of any such social group or evidence of persecution by reason of membership of that social group (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394).
State protection
The particulars at 15.3.8 make the bare assertion of a lack of adequate state protection unsupported by further particulars or evidence. Whilst the Applicant asserted that he would not be protected in Algeria, he provided no evidence in support of such an assertion.
The 2006 country information before the Tribunal stated that “in general society tolerates foreigners who practice faiths other than Islam; however, citizens who renounce Islam generally are ostracised by their families and shunned by their neighbours. The government does not usually become involved in such disputes.” The Tribunal found that the Applicant is not such a person. The 2007 material referred to by the Applicant stated that “there was no change in the status of respect for religious freedom by the government during the period covered by this report.” The 2007 material also stated that the Constitution stated Islam to be the state religion, however, it provided that people set up institutions whose aims included the protection of fundamental liberties of the citizen.
In the circumstances, there was no country information before the Tribunal provided by the Applicant or otherwise obtained by the Tribunal that suggested that state protection would not be afforded to the Applicant if he were attacked in Algeria by reason only of being a non-fundamentalist Muslim extremist.
Other claims
In relation to 15.3.2, the Tribunal considered the Applicant’s claim of a fear of persecution on the grounds of religion and imputed political opinion. As stated above in these Reasons, the Tribunal rejected the Applicant’s claim of a fear of persecution because he opposes fundamentalist tenets of Islam and has not complied with the fundamentalist tenets of Islam. The Tribunal found that any fear was not well-founded in circumstances where the Tribunal found that most of the Applicant’s family fell into the same category, however, have not suffered harm amounting to persecution. Further, the Tribunal was not satisfied that the Applicant had ever spoken out against Islam or Islamic extremism and found that he was unlikely to do so if he returned to Algeria.
Based on country information before it, the Tribunal also rejected the Applicant’s claim that there was a real chance he would suffer harm in Algeria because he allowed the church to use his house and would be perceived as supporting Christianity.
Those findings were open to the Tribunal and for the reasons it gave.
In relation to particular 15.4, again, there was nothing in the material and evidence before the Tribunal to support the Applicant’s allegation that he was exposed “to an even greater risk of persecution for actual or imputed region, political opinion or membership of a particular social group if returned due to recent developments.” The Tribunal had rejected his claims of a fear of persecution for any Convention related reason. As stated above in these Reasons that finding was open to the Tribunal on the evidence and material before it and for which it provided reasons. The Tribunal’s credibility findings are a matter “par excellence” for the Tribunal, including its adverse credibility findings (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Further, I accept the written submissions of counsel for the First Respondent in relation to the Applicant’s contention that the Tribunal failed to consider a relevant consideration. Those submissions are as follows:
“4.4The Tribunal’s findings do not reveal any failure to consider a relevant consideration or error of law. Specifically:
(a)The Tribunal clearly made findings in respect to the Applicant’s claims to hold fears for reason of his Christianity. It did not accept that the Applicant was a Christian, was not satisfied as to the genuineness of his claims regarding Christianity and did not accept that he would be active in support of Christianity in Algeria: CB 516 at [47]; 517 at [48]; 518 at [51]. Those findings clearly subsumed any claimed fears for reason of his Christianity, notwithstanding that the Tribunal subsequently considered and made findings in respect to the relevant country information. There was no failure to consider the Applicant’s claims or the integers thereof. Accordingly, there was no failure to consider a relevant consideration: see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] and [95]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [58].”
Accordingly, the grounds of the application are not made out.
Conclusion
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support; and, made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 28 August 2008
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