Brakni v Minister for Immigration & Multicultural Affairs [2000] FCA 1082

FEDERAL COURT OF AUSTRALIA

Brakni v Minister for Immigration & Multicultural Affairs [2000] FCA 1082 MIGRATION – refugees – application for protection visa – whether application considered on its merits – whether any ground of review under s 476 Migration Act 1958 (Cth). Migration Act 1958 (Cth) ss 430, 476, 476(1)(a), 476(1)(e)

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 referred to Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 referred to FARID BRAKNI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 165 OF 1999 LEE J 4 AUGUST PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 165 OF 1999

BETWEEN: FARID BRAKNI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE OF ORDER: 4 AUGUST 2000

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 165 OF 1999

BETWEEN: FARID BRAKNI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE: 4 AUGUST 2000

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal"), made on 30 November 1999, which affirmed a decision of a delegate of the respondent ("the Minister") not to grant a protection visa to the applicant. 2 The applicant, who is a citizen of Algeria, became an unlawful non-citizen when he entered Australia at Perth Airport on 27 July 1999. The applicant left Algeria and entered Egypt in August or September 1998. He remained in Egypt for one week and then made his way down the African continent to South Africa. After approximately eight months in South Africa, the applicant obtained a false passport, travelled by bus to Zimbabwe and there boarded an aircraft to Australia. 3 The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department") on 29 July 1999. On 20 September 1999 a delegate of the Minister refused to grant a protection visa and on 24 September 1999 the applicant sought review of the delegate's decision by the Tribunal. The Tribunal conducted a review hearing on 10 November 1999 and received further written submissions from the applicant's legal representative, Legal Aid Western Australia, on 24 November 1999. 4 The applicant sought review of the Tribunal's decision on the ground that the Tribunal had erred in law either by failing to interpret the applicable law correctly or by applying that law incorrectly to the facts found by the Tribunal (s 476(1)(e)). It was also contended that the Tribunal had failed to make material findings of fact and that, therefore, as the reasons provided by the Tribunal did not comply with the requirements of s 430 of the Act, the Tribunal had not observed procedures the Act required the Tribunal to follow (s 476(1)(a)). 5 In its reasons for decision, the Tribunal set out its understanding of the provisions of the Act for the grant of a protection visa which adopted the definition of a refugee set out in Article 1A(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together referred to as "the Convention"). The Tribunal referred to decisions of the High Court which set out the relevant law, in particular Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. It was not submitted that the Tribunal's exposition of the law displayed and misunderstanding. 6 The Tribunal had before it written submissions to the Tribunal and to the Department and a record of an interview between the applicant and an officer of the Department. The Tribunal also had before it "country information" from a number of sources dealing with conditions in Algeria. 7 The applicant is twenty-eight years old. Before he left Algeria he made his living as the operator of a market stall selling, first, items described as "Islamic goods" and later "children's clothes, groceries and foodstuffs". The applicant claimed that in January 1996 he had been detained by police and tortured over an eight-day period. He stated that he had been arrested for selling the perfume "musk" to a suspected Islamic fundamentalist or terrorist. He claimed that in the period following this arrest he was under the notice of Algerian security personnel and detained again on occasions, sometimes being arrested at his place of work, in the market place and at other times at the mosque. He claimed he was suspected of anti-government activities and, therefore, may be imprisoned or killed if returned to Algeria. 8 The Tribunal did not consider the applicant's evidence to be credible and enumerated a number of instances where it considered the evidence to be "far-fetched". 9 In the Tribunal's view it was implausible that the authorities would be interested in the applicant simply because he sold musk perfume to a fundamentalist. Furthermore, the Tribunal found that the applicant had "adjusted" his story over time in relation to the number of times he had been detained and arrested and as to the manner in which he had been identified following his first arrest in January 1996. 10 The Tribunal considered that the delay of between two and four months between the applicant obtaining a passport and leaving Algeria was an indication that he was not in fear of persecution and led to the inference that the applicant had not been detained and tortured as claimed. The applicant had attributed the delay to the need to sell his car and gather together money. 11 The Tribunal considered that the claimed "horrific torture and ongoing harassment" should have impelled the applicant to enquire as to Egypt's status as a signatory to the Convention after he entered that country, and, thereafter, to seek asylum. 12 The Tribunal also stated that the applicant's credibility had been undermined by his departure from South Africa, which, it said, showed a willingness to leave a situation of safety and to use false documents. 13 With regard to the applicant's present position as a person who has left Algeria to make an application for asylum, the Tribunal gave weight to a report on the treatment of failed asylum seekers prepared by the Federal Office of Refugees, Switzerland, dated 14 May 1998. The report stated in part: "The majority of the others, [that is, those not considered 'dangerous' opponents of the regime] whose demands for asylum have been rejected are not exposed to (legitimate) police investigations on their return, except if their stay abroad was not regularised, or if they had committed notorious offences abroad or soiled publicly the image/honour of Algeria abroad". 14 The Tribunal did not accept that the applicant had "soiled the image or honour of Algeria", or committed notorious offences, or that he was considered "dangerous" by the Algerian authorities. 15 The applicant's adviser at the Tribunal hearing submitted that the applicant's stay had not been regularised. The Tribunal had difficulty ascertaining the meaning of this expression and formed the view that were the applicant to be given new travel documents there would be no real chance that the authorities would have any interest in him upon return. 16 Another mind making findings of fact in place of the Tribunal may have regarded it as unreasonable to reach a number of the conclusions made by the Tribunal. For example, it may have been thought that there was no implausibility in the applicant's account that authorities took an interest in him as a vendor of Islamic goods, in particular musk perfume to which it was known that terrorists pursuing the cause of Islamic fundamentalism attributed life-saving properties. It was well-documented in the "country information" that Algerian authorities could be brutal and irrational in repression of the threat of insurrection by Islamic fundamentalists. It would not be difficult to conclude that the relevant authorities perceived the applicant as a possible sympathiser with the terrorist cause and as a possible source of information in that regard. It would not be necessary that such a suspicion be based on reason before it would be acted upon. 17 Furthermore, the applicant's statement that he required funds to leave Algeria and spent several months organising his affairs after he obtained a passport, and before he left, may have been seen by another rational mind as raising no issue as to the credibility of the applicant. 18 The view formed by the Tribunal that it was not credible that the applicant was a refugee if he failed to seek asylum in Egypt when he left Algeria, may have been treated by another mind as tenuous reasoning given that Egypt has had significant problems with terrorists seeking to promote the fundamentalist cause. There was no material before the Tribunal relating to the approach Egypt took to Algerians who had fled actions taken by Algerian authorities to suppress fundamentalists. 19 The statement by the Tribunal that the credibility of the applicant was undermined by his willingness to leave a "situation of safety" and travel on false documents may not have been regarded as a reasonable conclusion by another mind given that there was no material before the Tribunal that the applicant would not be returned to Algeria from South Africa and that it was well-known that only by false papers could many genuine refugees reach the places where applications for asylum may be made. 20 However, all of the foregoing were matters for the Tribunal to determine. Under the terms of s 476 of the Act, an unreasonable conclusion will not, in itself, permit an inference to be drawn that the decision-making process involved an error of law on which the decision is to be set aside. 21 The applicant's submission was that the Tribunal erred in law in "ignoring" the "country information" which, it is said, showed the applicant's claims to be consistent with circumstances known in Algeria. In effect, the applicant claimed that his application had not been considered on its merits. However, unless a ground of review provided by s 476 is established, no order for review may be made, however deficient the reasoning process may appear to be to a reasonable observer. (See: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gleeson CJ, McHugh J at [46], [49] and [56].) Of course, an arbitrary, capricious or wholly illogical decision which constitutes a complete failure by the Tribunal to perform the statutory function reposed in it by s 414 of the Act, would provide ground for review under s 476(1)(a) and, perhaps, s 476(1)(e) of the Act. (See Eshetu per Gummow J at [145].) 22 No ground of review under s 476 of the Act was established by the applicant's submissions. The Tribunal determined the application by making conclusions on relevant material and by dealing with the issues put forward by the applicant. The perceived unreasonableness of any part of those conclusions does not provide a ground of review under the Act.