Fettis v Minister for Immigration and Multicultural Affairs [2000] FCA 1798

FEDERAL COURT OF AUSTRALIA

Fettis v Minister for Immigration and Multicultural Affairs [2000] FCA 1798

Migration – protection visa ‑ challenge to findings on credibility – findings on material questions of fact – 'no evidence' ground SMAIL FETTIS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1037 OF 2000 JUDGE: WHITLAM J DATE: 10 NOVEMBER 2000 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1037 OF 2000

BETWEEN: SMAIL FETTIS

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: WHITLAM J

DATE OF ORDER: 10 NOVEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. 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 N 1037 OF 2000

BETWEEN: SMAIL FETTIS

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: WHITLAM J

DATE: 10 NOVEMBER 2000

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"). The applicant is an Algerian national who arrived in Australia on 12 December 1999. On 14 December 1999 he lodged an application for a protection visa. On 1 February 2000 a delegate of the respondent Minister refused to grant him a protection visa and on 4 February 2000 the applicant applied for a review of that decision. On 18 September 2000 the Tribunal handed down its decision affirming the decision not to grant a protection visa to the applicant. 2 The Tribunal's decision is in the conventional form and comprises some 33 pages. It commences with a discussion of the legislation and the elements of the Refugees Convention (at 1-3). It proceeds then (at 4-11) to recite the claims made on behalf of the applicant and the evidence adduced in support of those claims, that is the evidence specific to the applicant. 3 At page 11 the Tribunal sets out under the heading "General Overview of Political Developments in Algeria" material relating to the situation in that country excerpted from several sources. That summary continues to page 29 where there is a specific heading dealing with the treatment of failed asylum seekers on return to Algeria. The Tribunal then sets out its findings on the claims made by the applicant and the evidence before it and its reasons for the decision it reached (at 30-33). It is within the confines of those particular passages of the Tribunal's statement pursuant to s 430 of the Migration Act 1958 ("the Act") that the focus of the submissions today has been concerned. 4 The applicant was assisted at all stages in his application for a protection visa, particularly in his application to the Tribunal, by a solicitor who is also a migration agent. However, when he commenced the proceedings in this court under section 476 by filing an application on 28 September 2000 he did so in person. The application was not in proper form and did not state proper grounds for the review. Nonetheless, when the matter came on for directions Mr Zipser of counsel appeared for the applicant and, reassuringly, he has put the matter in good order by filing on 8 November 2000, admittedly somewhat late, a document described as "Particulars of Application" which counsel for the respondent accepts is the framework within which today's application should be heard. Accordingly, I gave leave to amend the application in order to permit the filing of an application for an order of review that reflected those particulars. The particulars are "1. The RRT based its decision on a finding of fact that the applicant departed from Algeria using a passport with his photograph and particulars. This finding involves a reviewable error under s 430(1) and 476(1)(a) of the Migration Act. 2. The RRT based its decision on a finding of fact that the applicant claimed he had a high profile involvement in protests and demonstrations prior to the assassination of Matoub Launes in June 1998. This finding involved a reviewable error under s 476(1)(g) of the Migration Act." 5 Both counsel have prepared very helpful written submissions which they have developed in their addresses today. The relevant documents filed by the respondent comprise two volumes; one of some 277 pages and one of 280 pages. That material has been supplemented today by a transcript of part of a hearing before the Tribunal on 23 March 2000. 6 The submissions prepared by counsel on both sides have made specific reference to those parts of that material to which they wish to take the court and I have looked at that material. The grounds set out in the amended application rely on s 476(1)(a) in order to assert a failure to comply with the requirements of s 430(1) of the Act and on the 'no evidence' ground in section 476(1)(g) in order to attack findings made by the Tribunal which impinge on the credit or credibility of the applicant. 7 Mr Zipser, counsel for the applicant, has conveniently grouped the claims made by the applicant in his submissions as follows: "a) that he is a national of Algeria; b) that he is a Berber (a minority group in Algeria); c) that he lived in the town of Tizi Ouzu and was a teacher in a primary school in the town; d) that he was involved in activities in support of the Berber people and in support of the Berber language being taught in schools in Algeria; e) that he belonged to a teachers' union and was involved in union activities in the early 1990s; f) that as a result of his trade union activities he was dismissed from his job as a teacher for one year between 1994 and 1995; g) that on 25 June 1998 Matoub Launes, a symbol for the Berber people, was assassinated; h) that following the assassination there were demonstrations in Tizi Ouzu and in Algiers for 20 days; i) that he was involved in the demonstrations – he distributed pamphlets, made signs for slogans and incited the Berbers to demonstrate; j) that following the demonstrations the authorities came to his house searching for him; k) that he went into hiding and, after 15 days of hiding, decided to leave Algeria; l) that he left Algeria in August 1998; m) that, while he had a passport when he left Algeria, he bypassed Algerian security on his departure from the airport in Algiers; and n) that he travelled from Algeria to South Africa and spent a period of time in South Africa before coming to Australia in December 1999." 8 He identifies within those claims three particular sets of issues that emerge. The first of those in paragraphs (e) and (f), then in paragraphs (g) and (i) and, lastly, in paragraph (m). 9 Mr Zipser then identifies the claims made by the applicant that, he says, were accepted by the Tribunal as follows: "a) that he is a national of Algeria (CB 266.6); b) that he was a teacher in a school (CB 268.5); c) that he belonged to a teachers union (the Autonomous Union of Workers in Education and Training) (CB224 to 227 and 247.3); and d) that he 'was involved in activities in support of the Berber Language and he participated in demonstrations' (CB 268.2)" 10 The key passage for his purposes in the Tribunal's statement is: "The fact that the applicant departed from Algeria with a valid passport in his own name, albeit that he had to pay for assistance to pass through customs, using a passport with his photograph and particulars, suggests that he was not a person of adverse interest to the authorities, as he claimed. This conclusion is supported by the information in the applicant's protection visa application, which indicates that he continued to live at the same address from birth to August 1998, apart from the time when he claimed he went into hiding, and that he held a public position as a school teacher at the one school for a considerable time until 1998 when he left for South Africa The applicant claimed to have left Algeria immediately after the assassination of the singer, but I do not accept his claim that he had an active or high profile participation in the demonstrations that followed the assassination. As he stated, these demonstrations involved the protesters rioting as they lost control. I cannot be satisfied that the applicant has a well-founded fear for his involvement in the demonstrations after the assassination of the singer, nor for his involvement in other protests where he claimed that he had previously taken a high profile. The earlier events would have jeopardised his employment and afforded him close attention from the authorities had he had his claimed high profile. To the contrary, he continued to reside in the same house and to work at the school which suggest that his profile was not as he claimed. I am satisfied that the applicant was involved in activities in support of the Berber language and that he did participate in demonstrations, although as he stated at the hearing, he was not part of the protests during the 'White Year'. I am not satisfied that he was an organiser as he stated, nor that he took such a key role in demonstrations that he would have been of particular interest to the authorities. I find it difficult to accept that, as his was such a high profile, he returned to his teaching position, a position of considerable influence for young minds, and that the authorities sought only an assurance from him that he would not openly campaign while in the school." (pp 31-32) 11 Mr Zipser made the following submission about that passage: "The above reasons indicate that the RRT's finding that the applicant was not of adverse interest to the authorities when he left the country in August 1998 was based on two grounds: a) First, the 'fact that the applicant departed from Algeria with a valid passport in his own name, albeit that he had to pay for assistance to pass through customs, using a passport with his photograph and particulars, suggests that he was not a person of adverse interest to the authorities' when he left the country. (CB 267)('the passport issue') b) Secondly, according to the RRT, the applicant had claimed that he had been "involve[d] in other protests [prior to 1998] where he claimed he had previously taken a high profile". Since the applicant continued to reside in the same house and to work as a teacher at a school, the RRT considered that his claims of high profile involvement in protests could not be true. This finding damaged the applicant's credibility. ('the previous protests issue')" 12 This submission neatly encapsulates what he calls the passport issue and the previous protest issue. Each counsel has approached the questions raised by the amended application within that framework in very helpful and comprehensive submissions. I mean no disrespect at all for the ingenuity of counsel when I say that Mr Zipser has I think subjected the reasons of the Tribunal to at least a very thorough review, even if it is not the over zealous review or eye too keenly attuned to the perception of error which the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 reminded courts they should guard against. He is, in fact, to be applauded for the ingenuity he has displayed in availing himself of the statements that now exist in the many migration cases in administrative law. 13 In this area, fashions are very fickle and a statement that might sound quite startling one day becomes the accepted proposition the next day, only subsequently to be revealed as a heresy. In any event for the time being the fashion is to attack credibility findings of the Tribunal by reference to the no evidence ground available under section 476(1)(g) of the Act, and Mr Zipser has certainly developed that case as highly as it can be put. 14 I would be at risk of doing less than justice to the able submissions of counsel on both sides, were I to attempt to paraphrase them. Accordingly I first set out in extenso the argument of counsel for the applicant in his written submissions on behalf of the applicant: "7. Whether the applicant departed from Algeria in 1998 using his own passport or not is a question of fact. The RRT's statement that 'the applicant departed from Algeria with a valid passport in his own name' (CB 267.5) and that he was 'using a passport with his photograph and particulars' (CB 267.5) is a finding on this question of fact. In light of the importance of this finding to the RRT's ultimate finding that the applicant was not of adverse interest to the authorities when he left Algeria in August 1998, the question of fact is 'material' within the meaning of s 430(1)(c) of the Migration Act 1958 (Cth): see MIMA v Singh [2000] FCA 857 at paragraphs 54 to 57. 8. Section 430(1)(d) of the Act provides that, in relation to each finding on a material question of fact, the RRT must '[refer] to the evidence or any other material on which the findings of fact were based'. For the scope of the RRT's obligations under s 430(1)(d) see Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 at paragraphs 64 and 65. In the present case the RRT has not referred to the evidence or other material on which the passport issue finding was based. This gives rise to a reviewable error under s 476(1)(a) of the Act. 9. The reason that the RRT has not referred to the evidence or other material on which this finding was based is because there was no such evidence or material. Contrary to the RRT's finding, the Applicant's claims and the evidence before the RRT was that his 'passport did not go through the computer check' when he left Algeria in August 1998 (CB 43.5) and that 'he bypassed Algerian security on departure' (CB 85.5). This reinforces the error made by the RRT. 10. Alternatively, in light of the fact that the question of how the applicant cleared security when he left Algeria is 'a material issue in the proceedings', the RRT has accepted by implication the applicant's evidence going to this issue: see ex parte Durairajasingham at paragraph 65. In this case, given that the applicant's 'passport did not go through the computer check' and that 'he bypassed Algerian security on departure', a material question of fact is how the authorities at the airport in Algiers could or would otherwise have detected the applicant on his departure. The RRT's failure to make a finding on this question of fact gives rise to a reviewable error under s 430(1)(c) and 476(1)(a) of the Act. The previous protest issue 11. Whether the applicant claimed he had been involved in, and taken a high profile in, protests prior to the assassination of Matoub Lounes in June 1998 is a question of fact. The RRT's statement that the applicant had been 'involve[d] in other protests where he claimed he had previously taken a high profile' (CB 267.10) and that the applicant had a 'claimed high profile' (CB 268.1) in relation to activities prior to 1998 are findings on this question of fact. However, contrary to the RRT's finding, the applicant never claimed that he had been involved in protests in which he had a high profile prior to 1998. 12. A summary of the evidence before the RRT is as follows: a) In his statutory declaration dated 21 December 1999 the applicant stated that he 'had been involved in trade union activities' in the early 1990s. (CB 43.2) b) In the interview with the Minister's delegate on 20 January 2000 the applicant confirmed what he had set out in his statutory declaration. (CB 82.7) Further, the applicant added that he did not 'have a fear of persecution for reason of his past trade union activities' (CB 84.10). c) At the hearing before the RRT the RRT's record of the applicant's evidence in relation to his involvement in past protests and demonstrations is set out at CB 244.8 to CB 245.3. 13. In relation to the RRT's record at CB 244.8 to CB 245.3, the statements of the RRT that '[h]e claimed that he organised later demonstrations' and '[h]e claimed that he was the coordinator of 1 million people protesting in regard to the use of the Berber language…' are ambiguous. 14. If these statements are read by the Court as references to demonstrations and protests following the assassination of Matoub Lounes in June 1998, then there was no evidence before the RRT to support the RRT's finding set out in paragraph 10 above that the applicant had been involved in other protests prior to June 1998 where he claimed he had taken a high profile." 15 Counsel for the respondent has used the same framework to reply to those submissions. In his submissions he refers to the Tribunal hearing, a transcript of which has been received in evidence as exhibit A. 16 I set out the submissions of counsel for the respondent. "Issue 1: The use by the applicant of his own passport 12. In paragraph 8 of the applicant's submissions it is alleged that the Tribunal erred by failing to give adequate reasons for its finding that the applicant departed from Algeria using his own passport. The respondent submits that when the decision is read as a whole adequate reasons were provided on this matter. Further it does not appear that the applicant ever disputed that he had left Algeria on his own passport. 13. The evidence that supported the applicant departing Algeria on his own passport was as follows. (i) In his original interview at Sydney Airport on 12 December 1999 he said: 'a friend got me a visa in my passport and I came on my own Algerian Passport…' (RD7.5) (ii) In his application for refugee status he stated: 'Employee of the airport was bribed to help me through customs" (RD35.2)' (iii) In his statutory declaration dated 21 December 1999 he said: 'I had previously applied for a passport in 1997. This took 3 or 4 months to obtain as security checks are constantly imposed on Berbers. I used this passport to leave Algeria but I had to have the help of the person I paid in the airport so as my passport did not go through the computer check…" (RD43.5)(emphasis supplied) 14. The substance of this evidence was set out in the reasons for the decision. (RD240.10) and (RD242.4). The applicant's evidence before the Tribunal did not dispute his earlier accounts on this issue (see RD 245.6) The substance of his evidence, particularly in his original interview and his statutory declaration, was that he 'used' his passport to leave Algeria but he had to pay a bribe so his passport was not entered in the computer. In those circumstances the finding at (RD 267.6) that he went through Customs on his own passport albeit with assistance of a bribe was not only open on the evidence but was consistent with his claims. The Tribunal has stated its finding and the reasons, read as a whole, refer to the evidence to support this conclusion. The reasons satisfy the requirements of s430(1)(d). 15. The respondent also disputes that [sic] the applicant's assertion in paragraph 9 that there was no evidence that he used a passport in his own name to depart Algeria. Clearly the matters set out in paragraph 13 herein provide ample evidence of this issue. 16. In paragraph 10 of the Applicant's submissions it is further alleged that the RRT erred by not making findings on the allegation that he 'by-passed' Algerian security on his departure'. The respondent rejects this submission. The claim to this effect was made by the applicant in his interview with the Departmental delegate (RD85.5). In this interview he did not appear to elaborate on what this 'by-passing' actually involved, although he had previously said paid a bribe to stop his passport being entered in the computer (RD35.2 and RD43.5). 17. The Tribunal set out the above claims (RD240.9) and the applicant's claims at the hearing of 'taking a month to get through the airport' (RD245.5). In its reasons the Tribunal accepted the applicant paid to get through Customs (RD245.5). This effectively dealt with the applicant's claim of 'by-passing' Algerian security, which to the extent it was ever particularised by him amounted to a claim that he had pay [sic] a bribe to 'use' his passport when he left Algeria. Issue 2: The applicant's claimed involvement in protests before 1998 18. In paragraphs 11 to 16 of the applicant's submissions it is alleged that the Tribunal erred by making a finding adverse to the applicant; namely that, contrary to his claims, he had not participated in protests before 1998 in a high profile capacity. It is alleged that this finding was flawed because he had never made such claims. The respondent disputes this. 19. There was ample evidence that the applicant had been involved in protests in an organisational or high profile capacity before 1998. When originally interviewed at Sydney Airport, the applicant is recorded as saying: 'I am a union leader for all teachers. I was very out spoken which left be (sic) in a dangerous position…' (RD6.10) 20. In his statutory declaration he had stated: '15. Previously I had been involved in trade union activities – SATEF (Syndicate Autonome des Travailleurs de'l education et de la formation – I was very involved in the early 1990s and was dismissed from my teaching role in 1994-1995 because of my trade union work' (RD 43.4) 21. In the tape of the hearing he is recorded as saying he was 'out of a job' for the whole of the 'White Year' (i.e. 1994) because he was the teachers trade union co-ordinator for his town. He said as coordinator he was 'disturbing the peace too much' and 'publishing pamphlets and making statements which were disturbing at the time'. He said he was stood down from his teaching position prior to the strike by students against not being taught in the Berber language. 22. The applicant's account in his statutory declaration and at the hearing suggested that he was the co-ordinator of a teacher's [sic] union campaign or protest in his town in the early 1990s concerning the use of the Berber language in schools. Further it was alleged that he had been removed from his job because of it. The fact that the applicant does not use the express words 'I had a high profile in these protests' does not mean that the Tribunal erred by characterising his statements as conveying such an effect. Clearly the applicant's statements conveyed a meaning that he had a role of significance (i.e. 'I was very involved' and 'I was the co-ordinator') in events which in ordinary parlance could be characterised as a protest or demonstration. The Tribunal's reasons at RD267.9 to 268.3, when given the required 'beneficial construction' (see Wu), simply involve consideration of such a claim. 23. The Tribunal was not prepared to accept the applicant's claim that he had a key role in any protests of interest to the authorities in the early 1990's (however characterised0 because it found he would not have been returned to his teaching position if this was the case (RD268.3). This factual conclusion also means that the precise factual characterisation of his alleged co-ordination role in the early 1990's is not a matter on which the decision is ultimately based in the sense used in Curragh and Chopra. The Tribunal was unable to accept any of the applicant's claims of alleged persecution (including other independent claims that he had a high profile role in the protests that followed the assassination of the singer, etc). The Tribunal's rejection of these other claims was made on a separate basis to any conclusions it formed about his alleged involvement in the events in the early 1990's and 1994." 17 As I said, those submissions were developed by both counsel with reference to the materials in the relevant documents and some brief amplification in address. Mr Zipser for the applicant specifically addressed some points made by counsel for the respondent in reply. He submitted, correctly in my view, that the statement, noted in paragraph 13(i) of the respondent's submissions about the interview at the Sydney airport, does not provide any support for a finding of the Tribunal about how it was that the applicant left Algeria. 18 The requirements of s 476(1)(g) of the Act are explained in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 which remains the locus classicus on the "no evidence" ground. An applicant must demonstrate that a fact does not exist and that the decision of the administrative decision-maker was based on that alleged fact. Furthermore, an applicant seeking to challenge a refusal of a protection visa on such ground has to show that not only was a particular finding unsupported by evidence, but in effect that it was the link in the chain on which the refusal of the visa rested. It is not sufficient that the finding was merely one strand in a rope of reasoning or, as it is sometimes referred to, a net. I am mindful of the recent decision in Minister for Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023 to which Mr Zipser refers. That was a case where several factors were referred to as touching on credibility, only two of which were found to be flawed in the light of section 476(1)(g), and yet the court was of the opinion that those matters may have been ones without which the Tribunal would not have reached its conclusion. 19 In this case however, notwithstanding the very able job that Mr Zipser has done in analysing the material before the Tribunal, I am firmly of the view that, subject to the one qualification I made a moment ago, the submissions of counsel for the respondent are a complete answer to the submissions made on behalf of the applicant. I accept those submissions and reject those of the applicant. 20 Accordingly the grounds alleged by the applicant are not made out. In saying so, I have not overlooked the fact that the applicant relies too on the requirements s 430(1)(c) and (d) to establish the ground available under s 476(1)(a), but I do not think in the scheme of things that takes the matter further. The material before the Tribunal is referred to adequately in its statement and its reasons sufficiently expose its reasoning on the relevant questions of fact. 21 The application will be dismissed. The applicant must pay the respondent's costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.