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Cases

MIGRATION - applicant claims to have a well-founded fear of persecution as a former army conscript in Algeria - whether the Tribunal addressed the claim of the applicant - whether the Tribunal based its decision on a fact that did not exist

"SAAH" v Minister for Immigration & Multicultural Affairs [2002] FCAFC 6 (1

"SAAH" v Minister for Immigration & Multicultural Affairs [2002] FCAFC 6 (13 February 2002); [2002] FCA 94
Last Updated: 30 April 2002


"SAAH" v Minister for Immigration & Multicultural Affairs [2002] FCAFC 6
"SAAH" v Minister for Immigration & Multicultural Affairs [2002] FCA 94



NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
"SAAH" v Minister for Immigration & Multicultural Affairs [2002] FCA 94


MIGRATION - applicant claims to have a well-founded fear of persecution as a former army conscript in Algeria - whether the Tribunal addressed the claim of the applicant - whether the Tribunal based its decision on a fact that did not exist

Migration Act 1958 (Cth) - ss 476(1), 476(1)(g) and 476(4)(b)

Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 - cited

Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 - cited

"SAAH" v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S185 OF 2001

JUDGES: FRENCH, MERKEL AND GYLES JJ

DATE: 13 FEBRUARY 2002

PLACE: ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA


SOUTH AUSTRALIA DISTRICT REGISTRY
S185 OF 2001



BETWEEN:
"SAAH"

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:
FRENCH, MERKEL AND GYLES JJ

DATE OF ORDER:
13 FEBRUARY 2002

WHERE MADE:
ADELAIDE



THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's taxed costs of and incidental to the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA


SOUTH AUSTRALIA DISTRICT REGISTRY
S185 OF 2001



BETWEEN:
"SAAH"

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:
FRENCH, MERKEL AND GYLES JJ

DATE:
13 FEBRUARY 2002

PLACE:
ADELAIDE




REASONS FOR JUDGMENT
THE COURT:

1 The appellant has appealed against a decision of the primary judge (Finn J) dismissing his application to review a decision of the Refugee Review Tribunal (&quo;
t;the RRT"), which affirmed a decision by the delegate of the respondent not to grant a protection visa to the appellant.

2 The appellant applied for the protection visa on the ground that he is a refugee as defined in Art 1A(2) of the Refugees Convention as amended by the Refugee Protocol as he has a well-founded fear of persecution if he were to return to Algeria, his country of nationality.

3 The primary judge summarised the appellant's claims as follows:

"That the Algerian Government would persecute him because he failed to respond to a call up notice issued in late 2000;
That he would be persecuted because of his Berber ethnicity; and

That because he had been conscripted into the Algerian army, he was at risk of persecution by Islamic terrorists and the Algerian government would fail to protect him."

4 His Honour observed that the claims were rejected by the RRT for "reasons related, variously, to credibility, inconsistency with country information and to not demonstrating persecutory conduct in fact".

5 The appellant represented himself before the primary judge and, rather than identifying expressly a ground of review under s 476(1) of the Migration Act 1958 (Cth) ("the Act"), he re-iterated his claims to refugee status. Nonetheless, his Honour carefully considered the reasons of the RRT and found no reviewable error.

6 The primary judge found that the RRT's rejection of the applicant's claims of army persecution and that concerning Berber ethnicity did not involve any reviewable error and no issue is raised on the appeal concerning his Honour's decision in that regard.

7 The third claim, which related to fear of persecution by terrorists on account of military service, was described by the RRT as the appellant's "strongest claim". It was common ground that that claim was a claim of a fear of persecution by reason of an imputed political opinion. The claim was summarised by the RRT as follows:

"[t]errorists came looking for him in September and October 1998. They were following him to kill him. To this point, he responded `yes, they came to the house'. He complained to the government but nothing was done, and sometimes the government gave his name to terrorists. To this point he said `yes, they said they could not provide me with protection'.
He hid at his sisters' houses. He then found a job as a driver for a dairy factory. The terrorists continued to follow him and came to the factory looking for him. He hid again until he left the country.

He was recalled to the army, but did not go, and now fears he will be killed by the government as a result. To this he said, `if I did go back, my family would be killed by terrorists and I would die in the army'. He also thinks the government or the terrorists will kill him because he is a Berber, to which he added that the terrorists would also wish to kill him because he was in the army.


...

The Tribunal asked if he wished to add anything. He said that, when one is conscripted into the army, the government will give your name to the terrorists. He said that, in Ain El Hammam, the names of those who are conscripted have their names written on wall posters by the terrorists. The Tribunal asked how he knew that the government gave names to the terrorists, adding that it seems implausible that a government would assist the terrorists in that way. The applicant said that there was no other way the terrorists would get the names."

8 The RRT referred to a substantial body of conflicting independent country evidence on the question of terrorist violence, including reprisals against former conscripts. The primary judge, who expressed some concern about the manner in which the RRT considered that information, observed that the latest of the reports noted an upsurge in violence in the year 2000 and that two of the reports suggested that terrorist attacks had become more localised in rural areas and smaller towns. His Honour accepted that, for "quite unimpeachable reasons" the RRT rejected the appellant's factual assertion that the government provided the names of conscripts to terrorists.

9 In rejecting the applicant's claim to having a well-founded fear of terrorist attacks on him as a conscript, the RRT appeared not to have specifically addressed the fact that the appellant was living in a village in a rural area and that the country information suggested that in such areas, rather in the larger cities and townships, conscripts had been subjected to violent reprisals.

10 The primary judge raised that issue with counsel for the Minister who said the RRT was entitled to deal with the case put by the appellant and that that case was not based on his residence in a rural area and on the government's refusal or inability to afford protection against attacks in such areas.

11 Counsel's submission, which was accepted by his Honour was expressed as follows:

"The Tribunal here, it is said, gave its decision on the case put to it: it rejected the factual assertion that the government was supplying names to terrorists; it illustrated the protection afforded by the government by reference to the applicant's own knowledge and experience of persons in his own locality who had been killed by terrorists; it accepted that terrorists may have been interested in him between September 1998 and July 1999 but that he made no claims of terrorist interest thereafter, and it attributed significance to the passage of time (three years) since he finished his military service; it likewise accepted the by no means uncontentious strand in the country information that there was now no firm evidence of individuals being targeted by terrorists, ["SAAH"] having founded his claim on such targeting.
In light of the case put, it was submitted that the findings made were reasonably open to the Tribunal and its apparent omissions in considering other matters were of no significance for judicial review purposes."

12 The primary judge stated:

"For my own part I consider that this submission should be accepted. It is open to real question whether a differently constituted Tribunal would, as of course, have reached a like conclusion as to the significance of what the country information suggested. But having derived from it what it did, the form of speculation the Tribunal engaged in was open to it as were the conclusions at which it arrived, having regard to its view of the country information, to the way ["SAAH"] put his claim (ie individual targeting and lack of government protection) and to ["SAAH"] own evidence concerning his knowledge of terrorist action in his own locality and of the period of terrorist interest in him. The conclusions arrived at were reinforced by the time that passed before ["SAAH"] started to plan to leave Algeria."
13 On the appeal the appellant was represented by counsel acting under the Court's pro bono scheme pursuant to O 80 of the Rules of Court. The issues raised on the appeal are whether:

[Yuml] the decision was based on the existence of a particular fact which did not exist, namely that the Canadian report cited by the RRT "indicates that there is no firm evidence of individuals being targeted by terrorists today" whereas, so it is argued, the report did not contain any such statement;

[Yuml] the RRT was required to, but did not, deal with the appellant's claim on the basis of his rural residence and the government's inability to protect him, alternatively, the RRT was obliged to deal with that claim which was raised by the evidence or material which the RRT accepted or which it did not reject.

14 We turn first to consider the "no evidence" ground which the appellant sought leave to raise as a ground of appeal. As the leave was not opposed and the appellant was not represented before the primary judge it is appropriate to grant leave to argue this ground.

15 Section 476(1)(g) provides that a ground upon which the Federal Court may review a decision of the Tribunal is:

"(g) that there was no evidence or other material to justify the making of the decision."
Section 476(1)(g) is, relevantly, qualified by s 476(4)(b):

"(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a) ...........................

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

16 In Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ("Al-Miahi") at paras [34] and [35] a Full Court stated:

"The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place - Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6. Sections 476(1)(g) and 476(4) appear to have been intended to give effect to such principles.
The application of s 476(1)(g) and s 476(4)(b) in any particular case requires the following steps:

* A relevant particular fact first must be identified.

* Then it is necessary to determine whether there was any evidence before the Tribunal to justify a finding of that fact. If there was such evidence, the ground cannot be made out.

* If there was no such evidence, it is next necessary to apply the second limb of (4)(b). If there is no evidence, on review, to show that the fact did not exist, the ground cannot be made out.

* If there is evidence, on review, to show that the fact did not exist, it is then necessary to apply the first limb of (4)(b). That requires an analysis of the Tribunal's reasoning to determine whether its decision was based on that fact.

See, for example, Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [26] to [28]"

17 The particular fact relied upon by the appellant is that the Canadian report:

"indicates that there is no firm evidence of individuals being targeted by terrorists today."
18 In its reasons the RRT referred to the report in the following contexts:

"The independent evidence indicates that there once was a great risk of conscripts being targeted in the way the applicant describes. However, that evidence, while by no means indicating that political killings and violence have ceased, and indeed may have increased in 2000, compared to 1999, the violence `now seems to take place primarily in the countryside, as the security forces largely have forced the insurgents out of the cities'. The Canadian Immigration and Refugee Board, in the report cited above, have referred to hundreds of national servicemen being killed between 1993 and 1995, says that `a number of measures taken by the government have diminished this type of Islamist activity', and that nowadays, the terrorists `launch general attacks against the civilian population in the regions rather than targeting specific individuals.' The Tribunal notes that that report goes on to say, however, that `from time to time, the press continues to report cases of Islamists attacking or harassing Algerians who have recently finished their national service.' In the previous paragraph, the report had referred to Amnesty International references to attacks of this kind, but had noted that Amnesty International had not been able to corroborate these reports."
19 Subsequently in its reasons the RRT concluded:

"The Tribunal accepts that some terrorists may have asked about him between September 1998 and July 1999 as he claimed. However, he made no claims of any further interest in him since July 1999. Had the terrorists, however, been serious in their wish to do him or his family harm, the Tribunal believes they would have done so soon after his demobilisation from the army. The Tribunal is of the opinion that any risk to him or his family because of the fact of his past military service, would be virtually non-existent now, almost three years after he left the army. In the light of the Canadian Immigration and Refugee Board report cited above, which indicates that there is no firm evidence of individuals being targeted by terrorists today, the Tribunal considers that, in the unlikely event that the applicant were to be recalled to duty at some stage in the future, the chance of him being personally targeted would be remote. Moreover, the Tribunal is of the opinion that the applicant has the protection of the government in relation to threats of this kind, and does not accept that the government refused to protect him."
20 The Canadian report stated that, according to press reports, there were cases where individuals who have recently finished their national service were attacked or harassed. It was for the RRT to determine the weight it was prepared to give that material. It expressed its view on that matter by stating the report indicated that there was no firm evidence of individual targeting. The expression of that view was the RRT's evaluation of the report rather than a statement of a fact. There was some evidence to justify the evaluation which was reasonably open to the RRT particularly as the report stated that the reports of individuals being targeted have not been able to be corroborated. Accordingly, the ground under s 476(1)(g) cannot be made out, notwithstanding that it may well have been equally open to the RRT to have given greater weight than it did to that particular aspect of the report.

21 The second ground of appeal is said to turn on the "case" put by the appellant. It is well established that the RRT is to determine the subjective fear claimed to be held by an applicant and whether, objectively, that fear is well-founded. As was observed in Abebe v The Commonwealth (1999) 197 CLR 510 at [187] by Gummow and Hayne JJ the RRT's function is to decide whether an applicant's claim is made out.

22 On the question of the appellant's subjective fear the material before the RRT included the following statements by him or made on his behalf:

(a) at his initial interview

"I left Algeria because the terrorists are chasing me + they want to kill me.
...

I hid at my place. When I saw them at night I moved to my sisters house in another village"

(b) in his statement 12.2.01

"If I wasn't in hiding they would have killed me by now ... There are lots of people who have been killed in our villages recently. In Ain Alhammam they kill 10-15 people daily for this reason"
(c) in his departmental interview

"I was hiding at my sisters' houses in other villages
...

What do you think would happen to you if you were to return to Algeria? I would die and my family too I will be killed by the army or the terrorist and my family will be killed by the terrorist"

(d) Macpherson & Kelley submission 18.5.01

"The applicant states that if he wasn't in hiding he would have been killed. In the applicant's village the terrorists killed a policeman, Mwaffaq Malik. The terrorists believed that he was against them and as a result they killed him. The applicant states that there are a lot of people who have been killed in other villages recently. In Ain Alhammam the terrorists kill 10-15 people daily because they believe that these people are against them"
23 The appellant did not specifically state that his fear of violent retribution was because of his particular vulnerability as a former conscript living in a rural area. Rather, the appellant's fear was stated to be a fear of persecution by terrorists in Algeria by reason of being a former conscript. The fear was not linked to or based on the appellant's residence in a rural area but rather, was based generally on his status as a former army conscript and the government's unwillingness or refusal to protect persons in his position. The RRT understood the claims to be made in that way and put its understanding of the appellant's claims to him and he agreed with that summary. The RRT then decided whether the claims made by the appellant had been made out.

24 We are not satisfied that the RRT did not address the appellant's claim as put by him. In our view it addressed the fear claimed and, for the reasons outlined by the primary judge, the RRT did not err in law or commit any other reviewable error in the manner in which it did so.

25 The appellant relied upon Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 at [24] per North and Madgwick JJ, and the cases there cited, for the proposition that the RRT "is required to determine all the substantive issues raised by the material before it and, as an inquisitorial body, should not limit its determination to the case articulated by an applicant if the evidence it accepts or does not reject raises another possible basis for considering that refugee status arises". As explained above the RRT addressed the case raised by the material that it accepted or did not reject.

26 We would add that even if, contrary to our view, some reviewable error arose in the RRT's approach in the present matter, the appellant would have to confront:

[Yuml] the finding by the RRT that any risk to the appellant or his family because of the fact of his past military service, would be "virtually non-existent now, almost three years after he left the army";

[Yuml] the argument that the RRT had found that the appellant had no subjective fear of persecution;

27 In view of the conclusions at which we have arrived it is unnecessary to pursue this aspect of the matter further.

28 Accordingly, for the above reasons, the appeal is to be dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, Merkel and Gyles.



Associate:

Dated: 13 February 2002

Counsel for the Applicant:
Mr Steve Roder




Solicitor for the Applicant:
Jeremy Moore & Associates




Counsel for the Respondent:
Dr Melissa Perry




Solicitor for the Respondent:
Sparke Helmore




Date of Hearing:
13 February 2002




Date of Judgment:
13 February 2002

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