Hariz, Mohamed v Minister for Immigration & Multicultural Affairs [1998] FCA 1559

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 785 of 1998

BETWEEN: MOHAMED HARIZ

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: HELY J

DATE OF ORDER: 4 DECEMBER 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 785 of 1998

BETWEEN: MOHAMED HARIZ

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: HELY J

DATE: 4 DECEMBER 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT HELY J: On 25 April 1998 the applicant, a citizen of Algeria, arrived in Australia from South Africa travelling on a false passport. On 7 May 1998 he applied for a protection visa. His application was refused on 9 June 1998 and on 12 June 1998 application for review of that decision was made to the Refugee Review Tribunal ("RRT"). On 24 July 1998 RRT affirmed the decision not to grant a protection visa to the applicant. The substantial ground of the decision was that the Tribunal was not satisfied that the applicant is a refugee in terms of the Refugees Convention. RRT set out the applicant's claims and the evidence which was before it. Some of those claims were accepted, and others were not. RRT accepted that: á The applicant is a member of the Beni M'zabi tribe. á The Beni M'zabi tribe is a minority tribe. It has from time to time come into conflict with its neighbours over such things as water rights. á Beni M'zabi are Berbers, and the Berber groups have differences with the authorities over language and cultural issues. This conflict has resulted in occasional violent demonstrations, and there have been occasions when Islamic groups have attacked individual Berber communities which have not accepted their struggle against the authorities. á The applicant may have a fear of being caught up in the general civil unrest in Algeria. RRT did not accept: á That the applicant suffered harm for any reason whilst living in Algeria. á That members of his extended family were killed in a police action in Algiers on the night of 19 September 1996 in order to prevent a Beni M'zabi conference taking place in that city. á That thereafter the police continued to pursue the applicant because he was not killed in the original attack. It was this massacre, and the reasons for it, and the identity of those who conducted it that was the substantial foundation of the applicant's claim to refugee status. RRT had before it statutory declarations of the applicant of 8 May 1998 and 23 June 1998 which gave details of the applicant's contentions in relation to the massacre of his extended family, and his status as a refugee. The reasons which the RRT gave for rejecting the claim with respect to the massacre are: á RRT could find evidence of other massacres in the detailed lists compiled by international organisations, and the media, and human rights groups, but could find no such evidence in relation to the claimed massacre. á RRT could find no evidence of the cancellation of any Beni M'zabi conference despite the fact that, according to the public sources, a major conference of political trade union and association leaders met in Algiers in the same week, and agreed to steps which led to the 1997 referendum in Algeria. If such a conference had been planned and cancelled it would, in the view of RRT, be reasonable to expect that it would receive media attention. á Whilst the applicant claimed that both the massacre and the cancellation of the conference were reported in the Beni M'zabi newspaper "El-Waha" or "The Oasis", the applicant had not read the article, nor had he been able to obtain a copy of the newspaper. RRT could not locate any evidence that such a newspaper exists. á RRT found it implausible that the police would go to the lengths described by the applicant to pursue him, if, as the applicant claimed, the motive behind the massacre was the cancellation of the conference; an objective which was achieved in September 1996. On the evidence before it RRT was not satisfied that the applicant had a well-founded fear of persecution for reason of his race, his imputed political opinion or for any other Convention reason should he return to Algeria then or in the reasonably foreseeable future. A fear of being caught up in civil unrest occurring generally in the country is not sufficient.