Applicant P v Minister for Immigration and Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

MIGRATION - application for review of decision of Refugee Review Tribunal ("the RRT") refusing protection visa - whether no reasons given to support finding - whether failure to consider objective facts - whether no findings on material questions of fact - whether unreasonableness and substantial injustice grounds for review - whether sufficient reasons to determine if incorrect test of well-founded persecution applied - where applicant is a member of Berber ethnic minority in Algeria

WORDS and PHRASES - "reasons", "unreasonableness"

1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees Article 1A(2)

Migration Act 1958 (Cth) ss 430(1), 476

Abebe v The Commonwealth [1999] HCA 14, at par 192, 193 and 199, cited

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, followed

Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132, followed

Minister for Immigration and Multicultural Affairs v Eshutu [1999] HCA 21, followed

APPLICANT P v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 154 OF 1999

TAMBERLIN J

SYDNEY

8 JULY 1999

THE COURT ORDERS THAT:

1.   The application for review is granted.

2.   The decision of the Refugee Review Tribunal is set aside. The matter is remitted to the Refugee Review Tribunal for consideration in accordance with law.

3.   The respondent is to pay the applicant's costs.

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

REASONS FOR JUDGMENT

1 The applicant is a citizen of Algeria. He arrived in Australia on 18 November 1998 without a passport and he is presently in detention. On 24 November 1998 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department") under the Migration Act 1958 (Cth) ("the Act").

2 Under the Act, the applicant must be a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"), Article 1A(2), in order to obtain a protection visa. That provision defines a refugee as 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..."

3 On 17 December 1998, a delegate of the Minister refused to grant a protection visa and the applicant sought review of that decision by the Refugee Review Tribunal ("the RRT").

4 In its decision dated 11 February 1999, the RRT affirmed the decision not to grant a protection visa because it was not satisfied that the applicant's fear of persecution in Algeria for a Convention reason was well-founded.

5 The applicant was born on 7 June 1969. He is of Berber ethnicity. He claims that he participated in many activities and demonstrations associated with two movements for Berber culture. In June 1987, the applicant registered for military service. From October 1988 through to June 1989, he was medically examined and called up for military service. The service came to an end after only ten days, when he was issued with a military exemption card. During the years 1989-1990, the applicant undertook a course of training in the jewellery business. From 1991 to 1996 he worked for various jewellers. In January 1997, he opened his own jewellery store in Tizi-Ouzou in the Kabylie region of Algeria.

6 The applicant states that the peaceful demonstrations in which he participated and which were organised to create awareness of Berber culture and language, were always disrupted by the army, sent by the government, with excessive force and violence. He says that during these demonstrations, the Algerian army killed a relative of his and some of his friends, and many others were injured or arrested. The applicant says that in general terms, the Algerian regime practised cruel types of torture especially against the Berber people. He refers to the refusal of the Algerian government in 1983 to bury a Berber singer, who had died in France, because, he says, the singer had sung famous Berber songs in the Berber language.

7 In January 1992, the Algerian legislative elections were cancelled. United States government country information referred to by the RRT, reports that armed Islamists have conducted wipespread insurgency since the elections were cancelled. Other country information reports that members of the Berber population in Algeria have been targeted by the Islamic fundamentalists, and have been injured and killed as a result, because they are regarded by the Islamists as violating traditional Islamic culture.

8 The applicant says that during the period 1991 through 1998, he heard from many jewellers that moneys were being extorted by an armed Islamic group ("GIA"). He also heard that the police staged robberies on jewellery stores under the guise of the GIA. He goes on to say that some members of his family and friends were killed at the hands of the GIA in 1995 and 1996, and that his cousin and brother had to flee to France in 1997 because of their involvement in a democratic cultural group. The applicant further claims that he and his brother and others from his area were activists and sympathisers of the cultural association known as "TIMILIT".

9 In March 1998, the applicant states that three armed men came to his store, and in the presence of his mother and sister put a gun against his throat. They said that they needed money to fight their cause, ordering him to hand over the keys of the safe and taking 7 million Algerian dinars in cash, silver and gold. The Islamists informed him that they would return the next day and that he would have 30 million dinars ready to pay them or they would kill him. He says that as soon as the armed men left the store, he went straight home and grabbed a document wallet with his passport, his military service card and other documents, and fled towards the Tunisian border. He says that the reason for his flight was his fear of being killed on the return of the armed men for not paying the 30 million dinars demanded.

10 The applicant says that he faced many problems at army check points in the course of his flight. He was interrogated about his reasons for leaving his village. According to his account, he explained on these occasions that he was a jeweller and that he had business to attend to. In response to this, the applicant was told that the Berbers and the residents of his village should remain in the village. Eventually the applicant took a train to Tunis where he had some difficulty with Algerian passport controllers at the border. He says that they expressed racist remarks against Berbers and told him that he should remain in Tizi-Ouzou in Algeria. The Tunisian passport controller however, gave him a three month visitor's visa on his Algerian passport.

The RRT reasons for decision

11 The RRT decision begins with a statement of the law. There is then a reference to the claims and evidence of the applicant. It is pointed out that his religion was recorded as Islam but he is not a practising Muslim.

12 The RRT refers to the country information which included reports in Australian newspapers, US Department of State Country Reports, and intelligence from Amnesty International and the International Federation for Human Rights. There then follows a discussion of the information in relation to Berbers. It is pointed out that Berbers claim to be the original inhabitants of Algeria and form up to twenty-eight percent of the population. They are present throughout Algeria but are mainly concentrated in two regions. As observed above, members of the Berber population have been targeted by the Islamic fundamentalists in Algeria and have been killed and injured. They are targeted because they are regarded by the Islamists as violating traditional Islamic culture. It is then stated that the government and fundamentalists have both been responsible for attacks affecting Berbers in the Kabylie region, one of the two Berber regions in Algeria. A number of atrocities committed by the fundamentalists have been documented. One such atrocity is the murder of a very well-known teacher and Berber activist in the Rally for Culture and Democracy, known as a fierce opponent of the Islamists, who was killed while teaching in class. The region has also been the scene of major government offensives against armed Islamic groups and the death of over one hundred tourists. The summary of country information then goes on to state that other sources indicate that hostility is not directed to the whole Berber population indiscriminately. There is reference to a Department of Foreign Affairs and Trade ("DFAT") cable of 1996, which states:

"It is not strictly correct to say that the Berbers have been subjected to more threats and violence than other groups. They have not been a favoured target (unlike women, intellectuals, foreigners, journalists, police and low level political representatives) though there have been some spectacular kidnappings of Berber personalities. ... The Berber movement has not been particularly victimised by either the government or the Islamic militia. The Berbers are very much a third element in the Algerian social juncture but more or less off to the side rather than a central part of the conflict ..." (Emphasis added)

13 There is then reference to a US Department of State assessment of August 1997, which states:

"While there may be some discrimination and harassment of Berbers in the capital city of Algiers and other large towns, there is no pattern of action by the Algerian authorities against Algerians simply because they are of Berber origin." (Emphasis added)

14 In addition, a US Department of State report, dated February 1997, states that:

"The Berbers, an ethnic minority centred in the Kabylie region of Algeria, participate freely and actively in the political process." (Emphasis added)

15 The reasons also record that the government's policy of "Arabisation" has met resistance from Berbers, and that outbreaks of disorder have occurred in the village from which the applicant came. Reference is made to behaviour marked by acts of violence and exploitation of the death of a Berber singer. The position officially stated by the government was that the interpretation of the "Arabisation" law was wrong and that its only objective was to promote the national language (Arabic) and not to marginalise the other languages spoken in Algeria.

16 The RRT found that the applicant had been exempted from compulsory national service because of a broken arm. Adverse comments were made as to the inconsistencies in the evidence of the applicant in that during the hearing it is said he was prepared to invent rationalisations to conform his answers to the RRT's exposure of anomalies in his evidence. The RRT found that some statements were fictitious, the applicant's credibility was doubtful and the factuality of his claims was in issue. In reaching this conclusion, it pointed to significant disparity between statements recorded by the Immigration Inspector in November 1998 and those made later in writing and at the hearing. It points out that at the airport interview, the applicant did not refer to problems as a Berber and said that he did not belong to any political organisations. The RRT accepted the Inspector's record of what the applicant said at the airport as accurate and found that the applicant did not in fact own his own jewellery business. Accordingly, the RRT did not accept that the applicant was robbed as a proprietor by armed men, and made a finding that there was not a real chance of the applicant being persecuted by the armed groups for not co-operating with them or by the authorities for co-operating with them. It found that there was no real chance of the applicant being persecuted in Algeria by either the authorities or the armed groups for reason of imputed or actual political opinion. The RRT concluded that it was not the applicant's Berber ethnicity or involvement in the Berber movement that caused him to leave Algeria, pointing out that he stated in his post-hearing statement that his case was based on what happened to him in his jewellery store.

17 The RRT then said that it was satisfied that the applicant had a commitment to the Berber cultural movement, and that he had participated in cultural events as a working member of Berber two cultural movements. It accepted evidence of ongoing tension and friction between the authorities and Berber organisations, and accordingly found that the police would have monitored the activities that the applicant was involved in.

18 While the RRT accepted that the applicant had suffered ongoing hassles and harassment from people in authority, notably at checkpoints, because of his Berber ethnicity, it was concluded that in speaking of "torture" at checkpoints the applicant was using the term loosely in the sense of "harassment". The RRT considered that the applicant was not wanted by the authorities at the time he left Algeria and that he left the country legally through a border checkpoint using an officially issued passport. Immediately before stating its conclusion that the applicant did not have a well-founded fear of persecution, the RRT said:

"The Tribunal notes that evidence available to it from independent sources show that people among the Berber population have been victims of atrocities and attacks by both the authorities and the fundamentalists. The Tribunal is satisfied however that the Berber population as a whole, which comprises 20 to 30 per cent of the total Algerian populace, is not a persecuted group for the purpose of the Convention: it is `more or less off to the side', as DFAT noted, and is not a combatant group; although it has strong differences with the government, particularly over Arabisation, there are recognised legal Berber associations in addition to Berber political parties which engage politically with the government ..." (Emphasis added)

19 I now turn to the specific matters addressed in the submissions for the applicant.

No reasons for finding: s 430(1)(b)

20 The submission is that no reasons are given in the decision to support the finding that the Berber population as a whole, which comprises twenty to thirty percent of the total Algerian populace, is not a persecuted group for the purposes of the Convention, although it has strong differences with the government particularly over Arabisation. This finding in turn led the RRT to the conclusion that there is not a real chance of the applicant being persecuted because of his Berber ethnicity in Algeria, if he were to return there, by either the authorities or the armed Islamic groups.

21 The RRT accepted that members of the Berber population have been targeted by the Islamic fundamentalists in Algeria and have been killed and injured by them, "since they are regarded by the Islamists as violating traditional Islamic culture" (emphasis added). The RRT accepted that the government and the fundamentalists have both been responsible for attacks affecting Berbers in the Kabylie region where the applicant lived. The particular circumstances of Berbers in the Kabylie region is emphasised in a Reuter Business Briefing (cited though not quoted in the RRT reasons), dated 12 September 1997, which states:

"Two of the main opposition parties in Algeria are led by Kabyle Berbers; because fundamentalists view their secularism as a form of atheism, civil war casualties among Kabyles have been high. One Islamic Salvation Front leader said he would Islamicise Kabylie even if he had to burn the entire region." (Emphasis added)

22 This supports the view that fundamentalists are hostile to Berbers. The RRT also accepted that a number of atrocities committed by fundamentalists against Berbers are documented and reference is made to specific examples.

23 The RRT refers to the material in a DFAT cable of 21 February 1996 to the effect that Berbers have not been a favoured target, (unlike women, intellectuals, foreigners, journalists, police and low level political representatives) though there have been some spectacular kidnapping of Berber personalities. The country information records further that the Berber movement has not been particularly victimised by either the government or the Islamic militia, and that the Berbers are very much a third element in the Algerian social juncture but more or less off to the side rather than a central part of the conflict.

24 It is apparent that the RRT attached significance to this DFAT cable because the reference to Berbers being "more or less off to the side" is specifically referred to when the RRT makes the ultimate findings as to persecution.

25 There is also reference to US Department of State intelligence of August 1997, which points out that while there may be some discrimination and harassment of Berbers in Algiers and other large towns, there is no pattern of action by the Algerian authorities against Algerians simply because they are of Berber origin. This profile is not concerned with the likelihood of victimisation of Berbers in the Kabylie region by fundamentalists. Another US intelligence report of February 1997, refers to the Berbers in the Kabylie region participating freely and actively in the political process. Once again this material is directed to the prospect of persecution by those in authority and it does not concern fundamentalist hostilities towards Berbers on the ground of culture, race or belief.

26 An examination of the critical findings and reasons of the RRT decision indicates that the RRT was primarily concerned if not preoccupied with the credibility of the applicant. The question of inconsistencies and silences in his evidence is examined over four pages. However, the fact that a finding is made adverse to an applicant on credibility does not absolve the decision-maker from considering the other material adduced and giving a reasoned conclusion as to the effect of that evidence: see Abebe v The Commonwealth [1999] HCA 14, at par 192, 193 and 199; and Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, per Sackville J at 413. The rejection of the applicant's evidence as to his own personal situation is not conclusive on the question as to whether as a member of the Berber population there is a real chance of his being persecuted because he belongs to that group. The RRT notes in the concluding section of its reasons, as discussed above, that the evidence available to it from independent sources shows that people among the Berber population have been the victims of atrocities and attacks by both the authorities and the fundamentalists. A generalised conclusion is then drawn that the RRT is satisfied that the Berber population as a whole is not a persecuted group but is off to the side. The decision-maker concludes by saying that there is not a real chance that the applicant is being persecuted because of his Berber ethnicity by either the authorities or the armed Islamic groups.

27 In the present case, in my view, having found that members of the Berber population have been targeted by Islamic Fundamentalists in Algeria because they are regarded by Islamists as violating traditional Islamic culture, it was incumbent on the decision-maker to give some reason or indication as to how he reached the view that the applicant, being a Berber in the Kabylie region, was not in danger of persecution by fundamentalists because of his ethnicity. There is simply no reasoning process disclosed which explains the shift from a position that members of the Berber population have been killed by Islamic fundamentalists because of the way they are perceived, to a view that Berbers are not, as a whole, persecuted, and to the implied insufficiency of anything less than persecution of Berbers as a whole for a finding of well-founded fear of Convention persecution. Without the benefit of some indication of the reasoning process it is not possible for an applicant to evaluate prospects of success on an application for review.

28 Accordingly, in my view, the applicant has made good its submission that the RRT has not exposed the reasons for its decision as required by s 430 of the Act. Accordingly, it follows that there has been a failure to follow a procedure laid down by the Act as required by s 476(1)(a) and therefore the decision must be set aside.

29 Although it is not necessary to deal with other grounds of review raised by the applicant, for the sake of completeness I will briefly set out my conclusions on those grounds.

Failure to consider objective facts: s 476(1)(e)

30 The submission is that the RRT did not address the issue of whether the Berbers as an ethnic group were targeted by the Islamic fundamentalists due to the secularism of their perceived beliefs and atheism, and that this therefore amounted to an error of law within s 476(1)(e) of the Act. In my view, it is not possible to conclude that the country information on this question was taken into account because it is not dealt with in the reasons. Accordingly, I find that this ground has been made out.

No findings: s 430(1)(c)

31 The applicant submits that there was no adequate finding in relation to the question whether the armed robbery, which was said to have taken place, in fact occurred. It is said that the finding of the RRT to the effect that it did not accept that the applicant was robbed as a proprietor by armed men is ambiguous, and does not disclose whether the RRT was satisfied of the fact of robbery, or whether it was making a finding as to proprietorship at the time of the robbery, or both. In my view, reading this finding in context, it is evident that the RRT did not accept the fact of the robbery on the jewellery store because of the inconsistencies in the applicant's statements and position.

32 It is said that there were no findings in relation to a number of other specific matters. However, it is not essential that every finding on every matter of fact should be set out: see Muralidharan per Sackville J at 414; Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132, per Lockhart J at 251 and per Sheppard J at 255. The RRT made an ultimate finding and rejected a number of submissions on the basis that it did not believe the applicant. Ultimate findings were made at the conclusion of the reasoning of the RRT and I am satisfied that the necessary ultimate findings were made. The real difficulty with the decision is that it fails to give reasons or answers with respect to the important question of whether the applicant faced a real chance of persecution by fundamentalist Islamic groups because he was a Berber in circumstances where there was evidence of such persecution.

Manifest unreasonableness

33 The applicant sought to argue that in light of objective facts and other evidence before the RRT, its findings are so unreasonable that they could not have been made by a reasonable person, and that therefore the RRT has failed to act in accordance with substantial justice as required by ss 420 and 476(1)(a) of the Act. Since the hearing of this proceeding before me, the High Court has clearly rejected substantial unfairness as a ground of review under those two provisions or any others: see Minister for Immigration and Multicultural Affairs v Eshutu [1999] HCA 21. Further, unreasonableness is expressly rejected in s 476(2) as an available ground of review under s 476(1).

Incorrect test - well-founded fear of persecution: s 476(1)(e)

34 This ground illustrates the problem arising from a failure by the RRT to disclose the reasons for its conclusion. The nature and extent of the reasons should not be left to speculation or inference. I cannot be satisfied that this ground has been made out because of the fundamental failure to disclose the reasoning process.

Conclusion

35 For these reasons given the application for review is granted. The decision of the RRT is set aside. The matter is remitted to the RRT for further consideration in accordance with law. The respondent is to pay the applicant's costs.