AZABC v Minister for Immigration

[2011] FMCA 34

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AZABC v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 34

MIGRATION – RRT decision – Albanian applicant claiming persecution by reason of conversion from Islamic faith to Orthodox Christian – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth)

Applicant: AZABC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 231 of 2010

Judgment of: Simpson FM

Hearing date: 13 December 2010

Date of Last Submission: 13 December 2010

Delivered at: Adelaide

Delivered on: 28 January 2011

REPRESENTATION

Counsel for the Applicant: Mr P C Charman

Solicitors for the Applicant: FNE Lawyers

Counsel for the Respondents: Dr C D Bleby

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant shall pay the first respondent’s costs of $5,865.00 (five thousand, eight hundred and sixty five dollars).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 231 of 2010

AZABC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant, a male citizen of Albania, claims to have a well-founded fear of persecution in Albania by reason of his conversion from the Islamic faith to an Orthodox Christian religion.  He says that he fears harm from his and his wife’s families should he return to Albania.  He says that some members of these families hold high positions and that, in a corrupt country like Albania, he and his wife would be found and they could not expect the support and protection of Albanian authorities.

2. The applicant arrived in Australia on 8 December 2009 at which time he was the holder of a Subclass 676 Tourist visa.  He obtained that visa to attend and speak at the 2009 International Workshop hosted by Griffith School of Engineering.  After the workshop he sought a Protection (Class XA) Visa.  That application was refused by the delegate of the Minister on 22 March 2010.  On 14 April 2010, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision.  On 13 August 2010, the Tribunal affirmed the decision not to grant the applicant a Visa.  The applicant now seeks review of the Tribunal’s decision.

3. The applicant says that he converted to the Orthodox Christian faith in 2003 whilst in Greece.  The applicant says that he was beaten by family members when he indicated that he wanted his wedding to take place at an Orthodox Christian church.  The applicant says that he left Albania after the beating and returned for one month in late 2005.  He married on 3 October 2005.  He again returned from Greece to Albania in September 2007 as a result of being deported.  The applicant says further that, from September 2007 to December 2009, he lived with his wife in secret in Albania during which time he and his wife had no contact with their families.

4. It was submitted by counsel for the applicant that the Tribunal had accepted that the applicant was beaten by family members for what can only be characterised as religious reasons.  Counsel for the applicant pointed to para.40 of the reasons and submitted that the Tribunal had there indicated that they gave the applicant the benefit of the doubt and accepted that the applicant was beaten by his family members for converting to an Orthodox Christian religion.  For reasons that will follow, I do not accept this submission.

5. Counsel for the applicant put forward only one ground upon which the application should be allowed.  He submitted that, having given the applicant the benefit of the doubt, the Tribunal had failed to exercise its jurisdiction in that it failed to ask the correct question as to whether there was a real chance that the applicant would suffer serious harm from his and his wife’s families without protection from the Albanian authorities if he returned to Albania to live a ‘normal existence’.

6. I do not agree with this characterisation of the Tribunal’s reasons.  Whilst there is some ambiguity about the Tribunal’s findings and reasons found in paras.35-43, I am satisfied that, on balance, the Tribunal was there indicating that it did not accept the applicant’s version of events concerning his conversion to an Orthodox Christian religion, his expressed fear of harm from his and his wife’s family members or his alleged assault by his and his wife’s family members.  It is helpful to look carefully at what the Tribunal said in its reasons.

7. The Tribunal said:

   38.The Tribunal has some doubts about the applicant’s conversion to Orthodox given he has not yet been baptised in the church, despite his claim to have decided that in 2003 to become Orthodox.  The Tribunal accepts the letters from the priests in Albania and in South Australia as evidence the applicant has some interest in the Orthodox Church.  The applicant claimed at hearing to be attending the St George Church in Adelaide but has provided a letter from a priest at a different church where the priest says the applicant has been attending for a few months.

   39.The Tribunal has difficulty accepting the applicant’s story as plausible.  He claims to have been beaten by his family when he expressed a wish to have his marriage blessed in the Orthodox Church.  He claims he was beaten so badly, he required hospitalisation.  He has provided no medical records to support this.  However, when he legally married his wife 8 months later, he did not in fact get his marriage blessed.  The Tribunal gives little weight to the evidence of the applicant’s witness that he remembers hearing the applicant’s story on television in Albania.  The Tribunal finds it difficult to accept the witness would recall a person’s name from something they heard on television five years ago.  The applicant has not raised before to the Department or the Tribunal that his story was reported in Albania, nor has he provided any other evidence of this.  The Tribunal has considered the report from Mr Thompson which states the applicant has a number of physical and psychological symptoms of anxiety and depression, but finds these symptoms could have any number of causes and do not necessarily support his claims.

8. The Tribunal did not accept that the applicant was beaten at his wedding.  It expressed doubt about the applicant’s conversion to Orthodox Christianity given that he had not yet been baptised despite the fact that the applicant had claimed to have decided to convert as early as 2003.  The Tribunal accepted that the applicant had some interest in the Orthodox Church as was indicated by certain letters from priests that the applicant relied upon.  The Tribunal noted that the applicant had claimed to attend the “St George” Church although he provided a letter from a priest from a different church that said that the applicant had been attending that other church for a few months.  The Tribunal said that it had “difficulty accepting the applicant’s story as plausible”.  The Tribunal found that there were no medical records provided to support the applicant’s case that he was beaten.  The Tribunal found that notwithstanding the applicant’s claimed reason for the beating, he did not in fact have his marriage blessed.  The Tribunal gave little weight to the evidence of Mr Myftari, the person that the applicant says that he met at a hospital in 2010.  Mr Myftari claimed that he recalled a television report that he had seen five years earlier concerning a man of the applicant’s name having been beaten from family members for converting from Islam to Orthodox Christianity.  When the applicant was asked why he had not raised this with the Department, the applicant replied that he thought that would be of no interest to the Department.  The Tribunal further found that the symptoms that were noted in the report of the Councillor, Mr Thompson, could have any number of causes and did not necessarily support the applicant’s claims.

9. In my view, contrary to the submission put by counsel for the applicant, the following paragraphs (paras.40-42) confirm that the Tribunal continues to be against the applicant in relation to these issues.  The Tribunal’s reasons continue:

   40.Even if the Tribunal gives the applicant the benefit of the doubt and accepts he was beaten by his family for converting to Orthodox, the Tribunal is not satisfied the applicant faces a real chance of persecution from his family or his wife’s family if he returns to Albania.

10. The use of the expression “Even if the Tribunal gives the applicant the benefit of the doubt”, impliedly suggests that the Tribunal has decided the crucial issues against the applicant but are speculating what the result might have been if it had not done so.  They come to the conclusion that even if they did give the applicant the benefit of the doubt (which they do not), they would still find against the applicant on the crucial issues.  Had the Tribunal intended to give the applicant the benefit of the doubt, the Tribunal would not have used the words “even if”.

11. Finding, as I do, that the Tribunal’s reasons for rejecting the applicant’s application are that to be found in paras.38 and 39 and not paras.40 to 42, this application is disposed.  I do not propose to address the question of whether the application would be disposed of on the alternate basis.

12. The application is dismissed.  I make the orders to be found at the beginning of these reasons.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Simpson FM

Associate: 

Date:  28 January 2011