Arben v Minister for Immigration and Multicultural Affairs

[2000] FCA 747

FEDERAL COURT OF AUSTRALIA

Arben v Minister for Immigration & Multicultural Affairs

[2000] FCA 747

DANI ARBEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 279 OF 2000

LEHANE J
26 MAY 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 279 of 2000

BETWEEN:	DANI ARBEN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LEHANE J
DATE OF ORDER:	26 MAY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant have leave to amend the application so that the applicant is identified as Dani Arben.

2.        The application be dismissed.

3.        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
NEW SOUTH WALES DISTRICT REGISTRY	N 279 of 2000

BETWEEN:	DANI ARBEN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LEHANE J
DATE:	26 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for judicial review under Pt 8 of the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal dated 20 March 2000. By its decision, the Tribunal affirmed a decision of a delegate of the Minister dated 6 January 2000 not to grant the applicant a protection visa.

2. The applicant is a citizen of Albania.  He arrived in Australia on 6 December 1999.  He had with him a Yugoslav passport issued in the name of Sokol Loshi which bore an Australian visa.  Later investigations revealed that the passport and visa were genuine, in the sense that they had been properly issued; but the visa had been cancelled and a photograph of the applicant had been substituted for that of Sokol Loshi.

3. When he was interviewed at the airport, the applicant told officials of the Immigration Department that he had left Albania because of the poor economic conditions there.  Some days later, having (apparently) received legal advice, he lodged an application for a protection visa in which he claimed to fear persecution, should he return to Albania, on account of his political opinion.

4. The applicant claimed that in December 1990 he joined a political organisation known as the 13th of December, an aim of which was to overthrow the (then) communist government and to establish a democratic government.  He claimed also to have joined the Shkodra branch of the Democratic Party, whose ideology and policies were similar to those of the 13th of December.  After the Democratic Party won office in 1991, the applicant claimed to have attended party meetings.  When the Socialist Party regained power in 1997, following the collapse of a number of investment schemes which had a degree of government support, the applicant continued, he said, to attend Democratic Party meetings and sometimes demonstrations.  He produced to the Tribunal his membership card and a letter signed by the secretary and chairman of the Shkodra branch of the party.

5. The applicant claimed that members of the Socialist Party had assassinated the deputy leader of his branch of the Democratic Party, and that he was a member of a delegation which attended the funeral in Tirana on behalf of the branch.  He said –  and independent material before the Tribunal suggested that this was correct – that a demonstration had developed in which, among other things, rocks were thrown at ministerial offices and government buildings burnt.  The applicant claimed that on 21 September 1998 three police officers from Tirana came to his home at Shkodra, accused him of involvement both in the assassination and the riots, arrested him, imprisoned him, kept him in solitary confinement and ill‑treated him.  He was, he said, released in December 1998.  He learned then that other members of his delegation had been arrested also and that some remained in gaol.

6. The applicant claimed that, after recovering from his injuries, he returned to work as a cook in Shkodra and began to attend Democratic Party meetings again.  He learned, he said, that the Socialist government had begun searching for and arresting people with connections with the Democratic Party.  He moved to the house of a friend and fellow party worker on the outskirts of town in the middle of 1999.  He claimed, however, that a letter had been sent by the police to his parents’ house stating that they were looking for him.  He decided to flee Albania, fearing for his life, and paid $10,000 for the passport on which he travelled to Australia.

7. The Tribunal accepted some of the applicant’s claims.  Particularly, it accepted that he was a member of the Democratic Party, though it found on the basis of the documents provided by the applicant and other aspects of the evidence that he joined the party not in 1990 or 1991 but in 1995.  However, the Tribunal rejected the applicant’s account of his arrest and imprisonment.  It did so for a number of reasons.  The applicant did not explain to the Tribunal why he had not mentioned the matter when he was first interviewed by Immigration Department officials.  None of the material which he submitted to the Tribunal, including the letter from the secretary and chairman of his branch of the Democratic Party, confirmed his claims of imprisonment and persecution.  Additionally, the Tribunal relied on some quite detailed country information concerning the events of September 1998 and the overcrowded state of Albanian prisons which, in the Tribunal’s view, indicated clearly that the applicant’s account was highly improbable.

8. The Tribunal also was unconvinced by, and rejected, the applicant’s account of the circumstances which, he said, led him to fear that he faced a real risk of being re‑arrested.  The Tribunal came to that conclusion largely because of the applicant’s evidence that he had been able to live in or near his home town for a considerable period following his release and, for a time, to work without interference.  The Tribunal again took account of the fact that the applicant had first claimed upon his arrival in Australia that economic reasons had led him to leave Albania, and it referred to independent country material which indicated that a person in the applicant’s position would indeed have extremely strong economic grounds for wishing to make a new life somewhere else.

9. Accordingly, the Tribunal found that the applicant’s account of imprisonment and ill‑treatment in Albania should not be accepted and that it should not find that he had a well‑founded fear of persecution should he return.  Those findings of fact, which led inevitably to the conclusion that the delegate’s decision to refuse a protection visa should be affirmed, were clearly open to the Tribunal on the material before it.

10. The applicant’s application for judicial review, which he has prepared himself, does not set out any particular ground on which he seeks review and certainly does not indicate any basis on which any of the grounds under s 476 of the Migration Act might be available. I have read the Tribunal’s decision with some care. I have also read the applicant’s initial application for a protection visa and the other material in the volume of relevant documents filed by the Minister. I can see nothing in that material which suggests that the Tribunal made any error of law; nor can I see any circumstances which might entitle the applicant to an order setting aside the Tribunal’s decision on any of the other grounds set out in s 476.

11. There is one final matter which should be mentioned.  The applicant tendered at the hearing before me documents in the Albanian language, with translations, which purport to confirm his account of his imprisonment between September and December 1998 and to suggest that he may be subject at least to summons, and possibly arrest, should he return to Albania.  I should add that the document which purports to summon the applicant (as it says, in the quality of the accused) to the attorney’s office in Shkodra does not explicitly state what it is that he is allegedly accused of.  In any event, it is quite plain that the court is not able, under the Migration Act, to admit further evidence and on the basis of that evidence to review the factual conclusion reached by the Tribunal.  Accordingly, I rejected the tender of those documents.

12. The result of the reasons I have given is that the application for review must be dismissed and I so order.

13. The Minister seeks an order that the applicant pay his costs.  That is the order usually made in circumstances such as the present.  The Minister has been put to the expense of resisting an application for review which, although the applicant understandably may not have appreciated it, was plainly hopeless.  An applicant’s inability to meet an order for costs is not a matter which ordinarily results in the court refusing to order that the applicant pay the Minister’s costs.  Accordingly, I order that the applicant pay the respondent’s costs of the application.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated:             6 June 2000

Counsel for the Applicant:	The applicant appeared in person, with the assistance of an interpreter
Counsel for the Respondent:	D Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 May 2000
Date of Judgment:	26 May 2000