Mohamed Hariz v Minister for Immigration & Multicultural Affairs [1998] FCA 1559 (4 December 1998)

Last Updated: 11 December 1998

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:

* The applicant is a member of the Beni M'zabi tribe.

* 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.

* 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.

* The applicant may have a fear of being caught up in the general civil unrest in Algeria.

RRT did not accept:

* That the applicant suffered harm for any reason whilst living in Algeria.

* 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.

* 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:

* 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.

* 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.

* 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.

* 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.

Grounds for review

An amended application was filed. It sought an order of review on a number of grounds. The first was that RRT failed to act according to substantial justice and merits of the case with the result that procedures that were required by the Act were not observed in connection with the making of decision, and thus enlivening the operation of s 476(1)(a). The particulars given in support of that ground are as indicated by the following headings (except for the last heading).

Failure to make proper enquiries in relation to the newspaper "El-Waha"

It was the applicant's contention that on 19 September 1996 twenty armed men entered his cousin's house. Telephone wires were cut. The applicant's cousins, their wives and all but two of their children were murdered and decapitated. A special squad of police were responsible for this massacre, and the reason for the attack was because "we were Beni M'zabi" and the authorities wanted a conference for Beni M'zabi scheduled to be held on 20 September 1996 cancelled. As a result of the massacre the conference was cancelled.

At the hearing, the Tribunal Member indicated that he was having difficulty understanding why he could not find any information on the massacre in any of the published material on Algiers and Algeria, given the horrendous nature of the event and its claimed effect upon the cancellation of the conference. The applicant's response was that the government controls the media and the newspapers. RRT indicated that this circumstance might explain the absence of reference to the event in Algerian publications, but it did not explain the absence of any reference to the event in publications by human rights groups. The applicant's rejoinder was that there was a reference to the event in a local newspaper published in Arabic and M'zabi in a town called Ghardia. The newspaper was El-Waha or El Ouaha which, in English, means "The Oasis".

An informal transcript of the hearing, which is Exhibit MH1 to the affidavit of the applicant of 12 November 1998, records, at page 41, a statement by the applicant's adviser that he asked the applicant whether he was able to obtain a copy of the local newspaper, and the applicant said that it was not possible. A reason for that might be because it is a local newspaper, and not one published at the national level. The Tribunal Member indicated that he would have some further investigation done to see if it is possible to get hold of the paper before he made a decision, but:

"I don't think I could possibly justify spending several weeks trying to track down this paper, so I will certainly have some further investigation done to see if it is possible to get hold of the paper before I make a decision, but I (indistinct) hold the decision up because of (indistinct)."

In its reasons for decision the Tribunal said, at p 12:

"The Tribunal also sought to ascertain whether the newspaper 'The Oasis' existed. A check of the world newspaper database did not reveal any information about a newspaper called 'The Oasis' published in Ghardia. A more detailed check of published sources found no reference to any massacre of Beni M'zabi in Algiers in September 1996. There were, however, many references to incidents in which groups of people were killed by gunmen, by bombs and by other methods in various locations in Algeria at around this time. There were also clashes between security forces and armed groups in that month."

The Tribunal also said, at page 14:

"The Tribunal does not accept that members of his extended family were killed in the police action in Algiers on the night of 19 September 1996 in order to prevent a Beni M'zabi conference taking place in the city. The Tribunal can find no evidence, in the detailed lists of atrocities and massacres compiled by international organisations, the media or human rights groups of any such event while it can find details of others. Nor could the Tribunal find any 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 that same week and agreed steps which eventually led to the 1997 referendum in Algeria. If such a conference had been planned, and then cancelled due to violence, then it would be reasonable to expect that this would have attracted media attention, either domestic or foreign. Mr Hariz told the Tribunal that the massacre and the cancellation of the conference were reported in the Beni M'zabi newspaper 'The Oasis' but that he had not read the article and he had not been able to obtain a copy of the newspaper. The Tribunal has been unable to locate any evidence that such a newspaper exists."

It was submitted that inadequate attempts to enquire about the existence of the newspaper were made. The alleged inadequacies were an assertion that an enquiry was made by reference to the English name which the newspaper bore and the town of Ghardia was used as a search parameter to enquire about "The Oasis", whereas the correct name of the town was Ghardaia. The correct name of the town was said to be established by a search conducted by the applicant's counsel on the Internet, Exhibit B.

The existence or otherwise of the newspaper "The Oasis", and the claimed publication in it of a report of the massacre were matters of central importance, and RRT did think it appropriate to make enquiries with a view to ascertaining the position. There is no evidence before me which establishes what enquiries RRT made, or how it went about making them. It does not appear from the Tribunal's decision whether its enquiries were made into the newspaper under its Arabic name or under its English equivalent, nor does it appear whether the nature of the enquiries were such that adoption of one rather than the other might cause the enquiry to miscarry. Similarly in relation to the spelling of the name of the town in which the newspaper was said to be published.

The circumstances in which RRT is under an obligation to make a particular enquiry are rare. Minister for Immigration v Singh (1997) 74 FCR 553. The duty to enquire would not ordinarily extend beyond material which the decision maker knows is readily obtainable. Sun Zhan Qui v Minister for Immigration & Ethnic Affairs [1997] FCA 324; 151 ALR 505, 548. There is no basis in the evidence for a conclusion that either the existence of "The Oasis", or the claimed report in it, satisfies that prescription.

At the hearing the applicant was fairly and squarely placed on notice of the importance which RRT placed on the absence of publication of the incident, and that whilst it would cause enquiries to be made, it could not unduly delay the giving of a decision on that account. RRT was conscious of the fact that the applicant was in detention, and that there was a need for a decision to be given as quickly as possible. The applicant himself had been unable to obtain a report of the incident, and even at this point in time no copy of the item said to have been published in "The Oasis" has ever been produced. There is no evidence that the search parameters adopted by RRT gave rise, in effect, to a constructive failure to search or make due enquiry. I would not be justified in simply assuming this to be so.

Failure to inform the applicant that RRT proposed to reject his application because of a presumption that "El-Waha" did not exist, and allow him a fair opportunity of rebuttal

The circumstances in which a decision maker must afford an applicant a further opportunity of dealing with matters adverse to the applicant's interests, which the decision make proposes to take into account, were considered by the Full Court in Somaghi v Minister for Immigration, Local Government & Ethnic Affairs [1991] FCA 389; (1991) 102 ALR 339, 341, 348-9, 358-9. The general rule, to which there are exceptions or qualifications, is that an applicant does not have a just cause for complaint if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 587. In my view, that is the case here. The statements made by the Tribunal member as to the steps which he would take in an attempt to "track down this paper" were not such as would engender any legitimate expectation in the applicant that RRT would notify him of the results of its enquiries before making a decision. The applicant was on notice throughout the hearing as to the concern which RRT had because of the absence of publication.

"El-Waha" was put up by the applicant in response to that expression of concern. It must have been obvious to him, that if RRT's enquiries did not establish the existence of the newspaper, let alone the publication in it of a report of the massacre, that RRT's expressed concerns would remain unanswered.

In those circumstances, I do not think that there was any duty on RRT to afford the applicant a further opportunity of dealing with the result of its enquiries before coming to a decision.

In my opinion, this ground upon which review is sought fails.

RRT dismissed the applicant's claim that the media was controlled by the authorities lightly and without further enquiries

This matter was raised on page 24 of the transcript of the hearing before RRT. The applicant's response to an expression of concern on the part of RRT as to why there was no publication of the massacre or the cancellation of the conference was that the Algerian government controlled the media. It was said that RRT dismissed this matter lightly. To dismiss a reasonable explanation lightly is not to act in accordance with the substantial justice and merits of the case. Exhibit C, another document which has its origins in the diligence of the applicant's counsel, records that all newspapers, book publishing and broadcasting activities are under the control of the central government of Algeria.

In my opinion, this ground is misconceived. It really invites a merits review contrary to the decision of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 271-2. In any event, the thrust of the applicant's case was that the massacre had been reported in the local newspaper "The Oasis", and it was the inability of RRT to obtain confirmation of this fact, as well as the absence in "the detailed lists of atrocities and massacres compiled by international organisations, the media or human rights groups of any such event" which led the Tribunal to conclude as it did.

In my opinion, this ground on which review is sought fails.

RRT failed adequately to pursue a line of questioning which could have raised issues of persecution or discrimination amounting to persecution for the applicant

The complaint is that at questions numbered 15 and 31 in the transcript of the hearing before RRT, the applicant raised problems which he was experiencing at the hands of the security forces in the area where he lived, but the applicant was not given an opportunity to expand upon these matters. No further enquiry was made by RRT into the matters raised by the applicant, and the issues which he raised were simply left hanging.

The applicant was given the opportunity (Q 145) of saying anything further that he wanted to say, and the adviser (Q 146) was invited to suggest any questions which ought to have been asked, but which RRT had missed. The adviser was given the opportunity of raising other issues, and took advantage of that opportunity.

The submission that RRT was in some way bound to pursue those matters is, in my opinion, without foundation. The general thrust of the applicant's claim to be a refugee was based upon the alleged massacre of his extended family and the reasons for it. I do not think that RRT was bound to pursue hints or intimations of other unspecified problems which the applicant might have with the State or the security forces, particularly in the light of the invitation extended to him and to his adviser to raise matters which they felt ought to be raised, but which had been inadequately covered.

Accordingly, in my opinion, this ground on which review is sought fails.

RRT in making its decision relied on the evidence of Dr Sadiki which proved to be incorrect in at least one material respect

Dr Sadiki gave the Tribunal some information in relation to the Beni M'zabi. Included in the information given was that their religion included the worship of saints and they were not singled out by the regime for discrimination or persecution because of what they worshipped.

This matter was addressed at the hearing before RRT. The applicant contended that Dr Sadiki's information is certainly wrong. The Beni M'zabi did not worship saints. Rather "it's the other Algerians who do have this".

At page 12 of its decision RRT said:

"After the hearing the Tribunal sought to clarify the question of the M'zabi belief in the equivalent of saints by further research. The sources consulted, which included 'The Encyclopaedia of the Modern Middle East', 'The Oxford Encyclopaedia of the Modern Islamic World' and the Internet indicated that M'zabi 'espoused an ideology of absolute egalitarianism, social austerity and militant puritanism' while popular Islam in Algeria was 'an oral tradition characterised by the worship of saints'.

Thus the further research conducted by RRT confirmed that it was the applicant who was correct on this issue, and that Dr Sadiki was wrong.

It was submitted that once RRT confirmed the incorrectness of Dr Sadiki's evidence in this respect it should have placed no further reliance on his evidence.

I am unable to see where this submission leads. The fact that one element of Dr Sadiki's evidence was found to be incorrect does not mean that no reliance could be placed on anything which he said. But in any event, an examination of RRT's reasons for decision does not disclose any respect in which Dr Sadiki's evidence was relied upon in a manner detrimental to the applicant. The applicant's claim failed not because of any misconception on the part of RRT as to the comparative ideology adopted by popular Islam in Algeria on the one hand and the Beni M'zabi on the other. Rather, it failed because RRT simply did not believe his account of the massacre, or his account of his subsequent pursuit by the police, which was the basis of his claim for refugee status.

Accordingly, in my opinion, this ground on which review is sought fails.

Decision was based on an irrational presumption that all acts of violence would be reported in the media

RRT is said to have proceeded upon a presumption that if an event such as this had occurred it would be reported in publications available to the Tribunal. Because it was not reported in any publication available to the Tribunal, it did not occur. This was said to be an irrational presumption, particularly in the light of government control of the media, such as to enliven the ground of review referred to in Epeabaka v Minister for Immigration & Multicultural Affairs (1997) 150 ALR 397, 402.

It was submitted by the respondent that the decision in Epeabaka is incorrect and ought not to be followed. In view of the fact that the Full Court has under reservation an appeal from the decision in Epeabaka, I do not think that it is appropriate that I should express a view on this submission unless necessary to do so in order to dispose of the present application. In the view I take it is not so necessary, hence I simply note the submission without proceeding to consider it further.

I do not think that RRT based its decision upon a presumption that all acts of violence would be reported in the media. Rather, RRT took the view that having regard to the nature of the events in question, and the resultant cancellation of the conference of Beni M'Zabi, and the nature of occurrences in Algeria which were the subject of reporting in either the domestic or foreign press or in detailed lists compiled by international organisations and human rights groups, it was reasonable to assume that some reference to these events would be found in some publication if in fact they occurred.

In my opinion, it was open to the Tribunal to come to the conclusion which it did. It was for RRT to find the facts and for RRT to determine whether or not it was satisfied that the applicant was a refugee within the meaning of the Treaty definition. In coming to the conclusion which it did RRT, in my opinion, was simply engaging in an exercise in fact finding. There was no "failure to rationally consider probative evidence".

The RRT made an adverse finding of credit on the basis of non-existent facts

It was submitted that the applicant's claim as to the massacre of his family and the cancellation of the Beni M'zabi conference was rejected on the basis of a lack of corroborative media evidence without any express finding being made to the effect that the applicant was a person whose evidence was not worthy of credit.

In my opinion, this ground is without foundation. The Tribunal was entitled not to be satisfied that the applicant's account of the massacre, the cancellation of the conference and the subsequent pursuit by the police was correct without the need for any positive evidence to that effect. This is not a case, as it was submitted it was, of an adverse finding of credit on the basis of non-existent facts. There is certainly a disbelief in the applicant's claim, and a central reason for that disbelief is the absence of any evidence that the events in question had been reported. It cannot be said that the absence of evidence of reporting was a "non-existent fact" because the Tribunal's own enquiries, as well as the inability of the applicant to produce a copy of the article which he claimed to have been published in "The Oasis", is some evidence to that effect.

Accordingly, in my opinion, this ground on which review is sought has not been made out.

An incorrect interpretation of the law. Section 476(1)(e) of the Act

The submission is that the RRT should have asked "but what if I am wrong?" and it did not. As the claim made by the applicant in relation to a past act of violence was not dismissed because of any probative evidence to the contrary, RRT should have asked itself "but what if I am wrong?".

The authorities in this area are well known. I referred to many of them in Sellamuthu v The Minister for Immigration & Multicultural Affairs (NG 677 of 1998, 11 November 1998 - unreported). Substantially for the reasons there given, in my opinion, once the Tribunal has rejected the applicant's claims in relation to the alleged massacre, then the alleged massacre has no continuing role to play in the Tribunal's assessment of whether or not the applicant has a well founded fear of persecution.

Accordingly, in my opinion, this ground on which review is sought fails.

Subsequent developments

After I reserved my decision, the matter was relisted at the request of the applicant's counsel. Over objection from the respondent, I admitted as Exhibit F what appears to be a facsimile transmission in Arabic, which Ms Ahmad told me had come into her possession on 16 November 1998. The applicant's counsel arranged for a translation of the document, Exhibit D, to the effect of the following:

"EXTRACT TRANSLATION OF FOREIGN NEWSPAPER TILE

Country of origin : Algeria

Issuing authority : Alwaha Publishing Firm

Name of document: : Front page of 'Alwaha' [The Oasis]

Date of issue : September 1998 (the day is illegible)

Valid till : non applicable

Place of issue : Algeria (place of issue is illegible)

The title of the newspaper is 'Alwaha' [the oasis]"

The applicant's interpreter was sworn to give evidence. He translated the entries marked at points 1-7 on Exhibit F as follows:

1. El-Waha.

2. Independent Community Newspaper.

3. Issue at El-Waha company publication.

4. The Algerian.

5. Thursday 15 September. (The year is not visible) 1^st residential.

6. Issue No 10. DJ. Year 8 (the interpreter did not know what DJ means).

7. Ghirdawa.

Nothing more is known as to the provenance of the document than is described above. A letter of particulars (Exhibit G) indicates that it was faxed to the applicant at Villawood.

By way of response, I admitted an affidavit of Ms Kavallaris sworn on 26 November 1998. That gave details of searches recently made which failed to find any record establishing the existence of El-Waha. The conclusion was:

"May I suggest that perhaps, if published at all, it must be somewhere with a small population and with a very limited circulation."

Clearly enough, this material does not establish that there was a local newspaper styled "El-Waha" circulating in the area of the alleged massacre in September 1996, let alone that it contained any report of the massacre, or the cancelled conference.

Counsel for the applicant relied on the material to show that had the applicant been informed of the "presumption against him" that "El-Waha" did not exist, there were steps which he could and would have taken to put material before RRT tending at least to call into question, if not to contradict, the correctness of that "presumption".

This fresh evidence says nothing about the methodology of RRT, nor does it tend to suggest that there was material readily available to RRT going to a central issue which it ought to have obtained. Nor is the material relevant to the threshold question of whether RRT ought to have communicated the results of its enquiries in relation to "El-Waha" to the applicant before proceeding to come to a decision on his application. In the view which I take, RRT was not bound to proceed in that way. Thus the fresh evidence is irrelevant.

Conclusion

The application is dismissed.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely

Associate:

Dated: 4 December 1998

Counsel for Applicant:	S Ahmad
Counsel for the Respondent:	G Johnson
Solicitor for the Respondent:	S Kavallaris Australian Government Solicitor
Date of Hearing:	13 & 26 November 1998
Date of Judgment:	4 December 1998