FEDERAL COURT OF AUSTRALIA "A" v Minister for Immigration & Multicultural Affairs [1999] FCA 627 "A" v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 1386 of 1998 LINDGREN J 30 APRIL 1999 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 1386 OF 1998 BETWEEN: "A" Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: LINDGREN J DATE OF ORDER: 30 APRIL 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth): (a) the title of this proceeding be amended so that in it the applicant be referred to as "A"; (b) all documents on the Court file in the proceeding to date be placed forthwith in an envelope and the envelope be sealed, marked "NOT TO BE OPENED EXCEPT BY ORDER OF THE COURT OR OF A JUDGE" and retained in the Court file; (c) the name of the applicant or anything liable to identify him not be published, except to the legal representatives of the parties or within their offices and chambers; 2. The application be dismissed. 3. The applicant pay the respondent's 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 1386 OF 1998 BETWEEN: "A" Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: LINDGREN J DATE: 30 APRIL 1999 PLACE: SYDNEY REASONS FOR JUDGMENT (ex tempore) Introduction 1 The applicant applies under s 476(1) of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("RRT") dated 14 December 1998 affirming a decision of a delegate of the respondent ("the Minister") not to grant a protection visa. Section 36 of the Act provides that a criterion for a protection visa is that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 April 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention"). 2 Article 1A(2) of the Convention provides that a refugee is any person who: "Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 3 The applicant's case is that he is outside the country of his nationality, Algeria, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of imputed political opinion. Brief account of procedural background 4 The applicant arrived in Australia at Sydney airport on 24 August 1998. The next day, 25 August, he applied for a protection visa (visa sub-class 866). A delegate of the Minister refused the application on 2 October 1998. On 12 October 1998, the applicant applied to the RRT for review of that decision. The RRT conducted a hearing on 24 November 1998. As noted above, on 14 December 1998, the RRT affirmed the delegate's decision. The applicant filed his present application to this Court on 17 December 1998. The decision of the RRT 5 The RRT commenced its reasons for decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of "refugee". It then turned to consider the applicant's evidence. The applicant's claims were made in his interview at the airport, a statutory declaration dated 2 September 1998, oral evidence which he gave before the RRT on 24 November 1998, a post-hearing nine page submission to the RRT made on his behalf by Ms Cranston of the Refugee Advice and Casework Service (Australia) Inc in response to certain matters which had been raised at the hearing, and a further two page submission made by her on the applicant's behalf in response to a further matter raised in correspondence by the RRT in a letter to Ms Cranston dated 8 December 1998. I digress to say that the submissions made by Ms Cranston have obviously been carefully prepared and I have found them of assistance. 6 At the airport arrival gate, the applicant stated that he was Algerian and did not have a passport with him. After being escorted to the office of the Department of Immigration and Multicultural Affairs ("the Department") he said that he was born on 17 May 1967, that he was a single man and that his parents and his many siblings still lived in Algeria. He claimed to have left Algeria in September 1994 and to have lived in Syria for nine months where he studied to be a refrigeration mechanic. 7 He said that in June 1995 he left Syria and travelled to Sudan where he lived until July 1996 working as a fridge and washing machine mechanic. According to the airport account, he then travelled to Malaysia where he remained for one and a half months after which he travelled to South Africa where he lived from August 1996 to August 1998, at which time he left for Australia. While in South Africa he lodged an application for refugee status which, so far as he knew, was, according to his airport account, still being processed. 8 He said that he left his identity documents, including his passport, with a friend in South Africa. He had with him a notebook in which were recorded a telephone number in Sydney and one in Melbourne which he said were contact numbers for the Algerian community. He said that a South African passport had been issued in the name of "G. Baker" and that he had paid US$1000 for it. He claimed that the passport had included a visa for Australia. He said that he had destroyed the South African passport and his ticket to Australia by flushing them down the toilet (apparently on the aeroplane). He said that he had left Algeria for fear of being recalled into the Algerian Army. This statement of his reason for leaving Algeria was a matter which was to assume some importance later. 9 The Reasons for Decision of the RRT proceeded by outlining the applicant's case for a protection visa. I do not think it necessary to summarise that account in detail. Briefly, after he finished high school in 1986, the applicant undertook military service between May 1988 and March 1990. In fact there was documentary support before the RRT giving the period as 28 May 1988 to 15 March 1990. This is a period of 22 months. He said that after finishing his military service he was a "reservist" who could be called up at any time. 10 The applicant said that after discharge, he commenced employment as an accountant or paymaster with a shoe company in April 1990 and that he worked there until September 1994. During this time, according to his claim, he became associated with the "Front Islamique du Salut" (the "FIS"). The nature of his association with the FIS assumed importance before the RRT. He said that he became associated with it because of his enthusiasm for Islamic studies and because of the trust his superiors had shown in him. His particular involvement was in community and social activities, rather than political activities. After work, he used to go to the local FIS office and would assess what should be given to families in need. 11 After the dramatic events of December 1991 and January 1992 in Algeria, members of the FIS were, according to the applicant, detained and put into concentration camps and centres in Southern Algeria. He stated that the FIS office was closed and that he was called in by the gendarmerie in January 1992 and was questioned for more than two hours. He said that after that two hour period, he had to sign a document which required him not to leave the boundaries of the town where he lived. Importantly, he said that he was required to report to the gendarmerie on a daily basis and to sign a card and did this until he left Algeria in September 1994. 12 He claimed that he was frightened that he would be called back into the army. He alleged that the "group A" reservists from 1988 had already been recalled and that "group B", of which he was a member, would be called up next. He said that he did not want to slaughter and kill innocent people or commit human rights abuses. 13 He claimed that he left Algeria on 16 September 1994 and was aided by a friend at the airport. According to the applicant, he had been told that the day after he left, the gendarmes came to his house, took his father to the gendarmerie and questioned him about the applicant's whereabouts. He said that he had been told that this happened again in September and October 1994 and that his father had told him (the applicant) not to return to Algeria because he had been called up to do military service a second time. The applicant claimed that in 1995 a friend from his village told him that it was public knowledge that a judgment had been issued against him (the applicant) because of his failure to rejoin the army and also because he had left Algeria in breach of a direction not to leave it. The friend said that the sentence imposed, called for capital punishment. 14 The applicant claimed that he stayed in Syria for some nine months studying air conditioning and had paid his own fees. He wanted to go to South Africa, but there was no South African embassy in Syria so he went to Sudan, for which he did not need a visa. In Sudan he tried to get a visa to South Africa but was unsuccessful and eventually he obtained a visitor's visa for Malaysia and so he went there. He stayed there for a month and a half and obtained a visitor's visa for South Africa to which he travelled in August 1996. He applied for refugee status there in December 1996. He stated that he purchased a false South African passport containing an Australian visa. He claimed to have destroyed the South African passport on the plane so that he would not be sent back to South Africa. He claimed that he did not have legal status in any country other than Algeria, but that he would be executed if he returned to that country. 15 The RRT took up a number of issues with the applicant (the RRT's Reasons for Decision extend over twenty four pages). First, there was the issue of his association with the FIS. The applicant said that he had never formally joined the FIS, but was involved in "social services" through the local FIS office which meant that he was responsible for looking after the poor and the widows in particular streets and supplying them with such special assistance as medication, school books and stationery. He said that he was not interested in political matters and had had no involvement in that side of the FIS at any stage. He said that he had had no involvement of any kind with the FIS after January 1992, that is, in essence, from January 1992 until, relevantly, he left Algeria in September 1994. 16 Second, the RRT asked the applicant about his claimed interrogation. He said that this occurred some time after 15 January 1992, that the questioning lasted for two hours and that it was about his FIS activities, his colleagues, his family and how he felt about the closure of the FIS office. He responded that it was up to the authorities to do whatever they wanted. He said that he was released after the two hour period. 17 Third, he was asked why he thought he had not been arrested, particularly given the great number of FIS supporters who had been arrested at that time. He claimed that there were "some good people" at the gendarmerie who had let him go, but that he was required to sign an undertaking as mentioned earlier. He said that he had not been detained again prior to his departure from Algeria. He said, however, that he had sometimes had to wait when he went to report to the gendarmerie and that the waiting time could be from five minutes to three hours. He claimed that he was never told why he had to report to the gendarmerie daily, but that in fact he did have to report every day at 10 am and that his employer acquiesced in this. 18 Fourth, the RRT inquired about the alleged call-up of reservists. He said he had heard about this from families of people concerned, that is, he had heard that since group A had been called up, group B would be next. 19 Fifth, the RRT asked about the interrogation of the applicant's father after the applicant left Algeria. The applicant said that he had been told that the gendarmerie called on his father the day after he (the applicant) left because he had not reported to the gendarmerie that day. According to the applicant, they told his father that the applicant should return to Algeria. He claimed that in October or November 1994 they returned and the applicant's father told them that the applicant had gone to Syria. Again they said, according to the applicant, that the applicant should return. They said he had to do "reserve duties". The applicant told the RRT that his obligation to undertake reservist duties had been the primary reason for his leaving Algeria. 20 Sixth, the RRT inquired about various other issues such as the location of the applicant's Algerian passport which he claimed he had left with someone in South Africa, who had gone to Great Britain and for whom he did not have a forwarding address. He said that his Algerian passport had expired in about June 1997 and agreed that this meant that he had obtained it in about June 1992. 21 He was also asked about his application for refugee status in South Africa. It was put to him that a decision had in fact been taken on that application in June 1998, two months before his departure from South Africa. He insisted that he did not know that his application for refugee status in South Africa had been rejected before he left. He stated that his mail address was the address of a mosque and it was possible that he did not get all the mail that was sent to him there. 22 Seventh, the RRT took up with the applicant the fact that upon his arrival at Sydney Airport, he had mentioned only his concern about doing reservist duties and not his association with the FIS. The applicant explained that he had not mentioned the latter because he did not "want to go into details". 23 The RRT gave an account of the oral and written submissions made to it on the applicant's behalf and independent country evidence about Algeria. In relation to the latter, the RRT noted that since 1992 Algeria has been in a state of insecurity, described as verging on full scale civil law, which stemmed from the cancellation of the second stage of multi-party parliamentary elections after the FIS won a majority of seats in the first stage of the election held in December 1991. 24 The RRT also gave an account of the FIS, noting that in the first round of the elections held on 26 December 1991, it took over 47 per cent of the total votes cast and secured 188 of the 231 seats decided at that ballot, which meant that it only needed to win twenty eight of the remaining 199 seats to be contested in the second round of voting in order to achieve an absolute majority in the new National Assembly. It noted that given that the FIS was in the lead in 144 of those seats, it appeared quite possible that it could have achieved a two-thirds majority. The RRT went on to give an account of the Algerian military in effecting a coup d'état and the assumption of power by the "High Committee of State" headed by Mohammed Boudiaf. 25 The RRT went on to relate the events of the armed struggle and the current situation in Algeria as well as expert evidence relating to military service and reservists there. It also gave an account of human rights abuses by Algerian authorities. 26 In the "Findings and Reasons" section of its Reasons for Decision, the RRT said that it did not accept the applicant's claims in several respects. It did accept that in the early 1990s the applicant was involved with the FIS. It accepted the applicant's evidence at the hearing that the applicant had had no interest or involvement in the political activities of the FIS, although it thought that this was inconsistent with earlier statements by the applicant that he had been an "active member". 27 It accepted that following the coup d'état in January 1992, the local FIS office was closed and that the applicant was interrogated by the gendarmes for two hours. The RRT did not accept, however, the applicant's claim that he had been required to report to the gendarmes every day for the next several years and gave reasons why it did not accept this evidence - in substance that it was inconsistent with the country information before it. As well, the RRT noted that while it accepted that for various reasons asylum seekers may be reluctant to disclose full details of their claims immediately upon their arrival in Australia, in the present case it thought it implausible that the applicant would mention only the matter of recall for military duties and not any other claim, for example, the claim that he had been sentenced to death. 28 In this respect, the RRT thought that the applicant was not afraid of the Algerian authorities because of his FIS activities many years earlier down to January 1992. Similarly, the RRT thought it improbable that the applicant would be of any interest to the Algerian authorities merely because he had been outside Algeria since 1994. 29 The RRT also thought that the applicant had fabricated the claim in relation to his failure to undertake reservist activities in order "to create for himself the profile of a refugee." The RRT discussed in some detail the independent evidence before the RRT as to the call up of reservists and concluded that the suggestion that the applicant was told in October or November 1994, after he had left Algeria in September of that year, that he had already been called up was inconsistent with the independent evidence. Another matter taken into account was that there was no call up notice put before the RRT. The RRT also took into account the independent expert evidence of Dr Sadiki that he was not aware of an official decree calling up people who had served eighteen months of their military service (the applicant had served twenty two months). The RRT concluded that there was not a real chance that the applicant would be called up as a reservist to undertake an extra two months of military service. 30 I now set out the final three summary paragraphs which occur in the RRTs decision: "In summary, I accept that [the applicant] was involved in a non-political sense with FIS in the early 1990s. I further accept that he was questioned by the authorities for two hours in January 1992. However, in light of the independent evidence before me, I do not accept that [the applicant] was under reporting conditions until he left Algeria, nor that he was prohibited from leaving his local area. Further, I do not accept that [the applicant] was called up to do reservist duties in 1994 as this claim is inconsistent with the independent evidence before me. I further do not accept that [the applicant] was called up to do reservist duties in 1995 or since because he did not make this claim to the Department or the Tribunal. Further, I consider that if [the applicant] had been called up as a reservist in 1995 or since he would have been told about this by his family. Moreover, on the basis of the independent evidence before me I cannot be satisfied there is a real chance [the applicant] would be called up for reservist duties in the reasonably foreseeable future were he to return to Algeria. Finally, I do not accept that [the applicant] was of any interest to the Algerian authorities at the time of his departure from Algeria or that he is of any interest to them currently. It follows that I do not accept that [the applicant] has been sentenced to death because he left his local area without permission and/or did not do reservist duties. The situation in Algeria over the past few years has been one in which Algerian citizens have faced and continue to face considerable danger on a daily basis. I note that UNHCR has warned against the hasty deportation of rejected Algerian asylum seekers (UNHCR Press Release, 18 September 1997) and that the European Parliament has urged member nations to relax asylum policies in favour of Algerian exiles deemed to be under threat if they were to return home (Reuters, 18 September 1997). Given what has happened in Algeria over the past few years, I accept that [the applicant] has a genuine subjective fear of returning to his country, from which he has been absent for more than four years. However, I am unable to be satisfied there is a real chance he would face persecution for a Convention reason if he returned to Algeria. I am therefore not satisfied that [the applicant] has a well-founded fear of persecution." Grounds of review, and reasoning on the review, by the Court 31 There has been filed an amended application for an order of review on 9 April 1999. On the hearing before me, the applicant was represented by counsel, as was the Minister. The permissible grounds of review are, as is well known, limited to those set out in s 476 of the Act. In various ways, what is put on behalf of the applicant is that the factual assessment by the RRT was wrong. It is also put that if the RRT had made further inquiries it would have reached a different conclusion. In his oral submissions, counsel for the applicant suggested, for example, that the applicant's account made an "awful lot of sense". He sought to challenge the reliance placed by the RRT on Dr Sadiki. 32 Counsel for the applicant suggested that the RRT had failed to comply with the requirements of s 427(1)(d), s 430(1)(c) and (d) and s 476(1)(e) of the Act. (Section 427(1)(d) does not impose an obligation but confers a power.) I have considered the submissions carefully but having regard to the limited nature of these grounds and the fact that essentially the RRT, for reasons which it stated and which were open to it, whether I would or would not have dealt with the matter in precisely the same way, did not believe the applicant, I do not think that it is open to the court to interfere. As I have tried to emphasise, this Court does not have a function of reviewing on the merits. Of course, it is often possible to point to other inquiries that the RRT might have made and to other views that may have been taken of the evidence. Neither of these facts alone establishes one of the statutory grounds of review. 33 For these reasons, although I have expressed them shortly, I think that the present application must be dismissed. 34 Counsel for the applicant asked that I make an order suppressing the applicant's name: see, for example, A v Minister for Immigration and Ethnic Affairs (1994) 54 FCR 327; Minister for Immigration and Ethnic Affairs v Respondent A (1994) 54 FCR 333. The Minister does not oppose the making of such an order, properly taking the position that the issue is one for the Court. The power to make such an order is given by s 50 of the Federal Court of Australia Act 1976 (Cth). In this particular case I think it in the interests of the administration of justice to make such an order. This is not inconsistent either with my conclusion that the applicant has not made out a ground for review or with the findings of the RRT. 35 Section 50's notion of "prejudice to the administration of justice" is a broad one and the section contemplates that an order under it may be made after the hearing, that is, after a hearing in public. In the special circumstances of this case, I think that there is a real possibility that the applicant may suffer adverse consequences upon his return to Algeria by reason of the mere fact of his having applied for recognition as a refugee. It is true that it is the policy of the legislature that the hearing of an application for review by the RRT itself be in private (see s 429 of the Act) and there is no such general policy in respect of applications to this Court for review of decisions of the RRT. But it is also the policy of the legislature that the power given by s 50 be available in an appropriate case. 36 I need not discuss the evidence in the present case. It is sufficient to say that the "real possibility" to which I have referred is one against which I would wish to safeguard in the interests of the applicant and of other persons, if there be any, who are placed in circumstances identical to his and who may be minded to apply to the Court for review of a decision of the RRT. 37 The orders of the Court are as follows: 1. Pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth): (a) the title of this proceeding be amended so that in it the applicant be referred to as "A"; (b) all documents on the Court file in the proceeding to date be placed forthwith in an envelope and the envelope be sealed, marked "NOT TO BE OPENED EXCEPT BY ORDER OF THE COURT OR OF A JUDGE" and retained in the Court file; (c) the name of the applicant or anything liable to identify him not be published, except to the legal representatives of the parties or within their offices and chambers; 2. The application be dismissed. I note that the Minister seeks an order for costs. The ordinary practice of the Court is to order that an unsuccessful party pay a successful party's costs. There are no circumstances which cause me to think that the ordinary practice should be departed from. Accordingly, the following further order is made: 3. The applicant pay the respondent's costs. I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 30 April 1999 Counsel for the Applicant: Mr G L V Hooton Counsel for the Respondent: Ms S McNaughton Solicitor for the Respondent: The Australian Government Solicitor Date of Hearing: 12 April 1999 Date of Judgment: 30 April 1999