AZABM v Minister for Immigration
[2012] FMCA 20
•17 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AZABM v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 20 |
| MIGRATION – Application for refugee status – well founded fear of persecution – unchallenged findings sufficient to determine application for refugee status adverse to the applicant. |
| Migration Act 1958 (Cth), ss.36(2)(a), 65(1)(a) & (b), 91(R)(1) & (2), 91(S), and subs.5(1) |
| VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 SZCJH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1660 VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 NBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 57 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) |
| Applicant: | AZABM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 57 of 2011 |
| Judgment of: | Simpson FM |
| Hearing date: | 17 October 2011 |
| Date of Last Submission: | 17 October 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 17 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ower |
| Solicitors for the Applicant: | McDonald Steed McGrath |
| Counsel for the Respondents: | Mr McDonald |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application is dismissed.
The applicant shall pay the costs of the first respondent fixed in the sum of $6,240.00 (six thousand, two hundred and forty dollars).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 57 of 2011
| AZABM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an Application for Judicial Review of the decision of the Refugee Review Tribunal which affirmed the decision of the delegate of the Minister to refuse to grant the applicant a Protection (Class XA) Visa. The decision was made on 4 February 2011 and the application was made on 7 March 2011.
Background
The applicant is an Albanian citizen.
In 1994, the applicant moved from Albania (where he had just completed military service) to Italy. The applicant’s father had moved to Italy two years earlier to find work.
In 1996, the applicant and his family were granted permanent residency in Italy.
In October 1998, the applicant married. The applicant and his wife now have three children.
In 2001, the applicant commenced a business in Italy called the Cepeli Ferdinand Construction Company. This business was successful.
In 2002, the applicant decided to invest in Albania.
In 2005, the applicant joined the Demo-Christian Party (not to be confused with the Democratic Party) because he liked that party’s ideals and he believed that his membership of the party would assist with his investment activities in Albania.
The applicant says that in 1998 he bought an empty block of land in Shengjin in Albania but that this land was taken away in 2007 by Mr Afrim Fush, a member of the Democratic Party.
The applicant says that in 2005 he bought a second block of land in Shengjin and that he was given permission to build a house on the land. In 2007, he obtained permission to construct a large building on the land instead of the house.
The applicant says that the Democratic Party and Demo-Christian Party were once aligned but split in 2007. Thereafter there was conflict between the two parties. The applicant was living in Italy at the time and was not involved in the conflict except to the extent that he provided financial assistance to the Demo-Christian Party by donating 3,000 to 5,000 Euros each year.
In 2007, the local election in Albania was won by the Democratic Party. The applicant said that as a result of the Democratic Party coming into power, he started to have difficulties with his building business in Albania. Licences that would normally have been granted for him to carry out work on the buildings were no longer granted.
In particular, an engineer Mr Gobalin Paci, refused to renew a licence and said, “You will never renew your licence”. The applicant says that Mr Paci also said to him that the reason why the applicant’s license to build was not renewed was because the applicant should have finished the building work in one year adding that the applicant “… should know the other reasons”. The applicant interpreted the “other reasons” to be the fact that he was on the wrong side of politics.
The applicant says that he was threatened in 2007 by the brother of the Mayor of the town of Lezhe and another man. He said that they grabbed and pushed him to the rear of his building at which time they said to him, “You will never finish this building and if you try, we will cement you into the walls”. The applicant says that these two men were people of power in the local community with the result that the police would not have helped the applicant if he had complained to them. The applicant said that the same people threatened him in 2009 when he was again in the building. The applicant stated that on this occasion, they put a gun to his head and told him to give up the building and sign it over. The applicant says that in November 2009, two people came to Italy and threatened him. They invited him to get into their car to go to have coffee but he refused. He says that they asked him to sign over the building to Mr Fran Tusha. They later told him that Mr Tusha wanted a payment of 150,000 Euros or two storeys of the building.
The applicant says that on two occasions, in 2008 and 2009, his car was damaged. He says that on both occasions, a note was left with the car stating, “This is just the beginning, something is going to happen to you later”.
The applicant says that he received about 20 to 30 threatening phone calls whilst in Italy. He also received three letters, two in 2008 and one given to his mother in 2010. The 2010 letter again made the demand that he had to give 150,000 Euros or two storeys of his building or they would kill him. The applicant says that he believed that even if he did give up the building, the people that were threatening him would continue to do so to acquire his other assets.
The applicant says that he fears for his wife and children and considers them to be in danger. The applicant says that the Italian police are unable to stop Albanians coming over the border to kill or harm him or his family.
The applicant says that in 2008 he sought citizenship in Italy but that his application was not dealt with before he left to travel to Australia.
The applicant says that in 2008 he travelled to the United States of America on business.
In February 2009 the applicant was granted a Visa to come to Australia but he did not take advantage of the Visa until February 2010. He says that he delayed coming to Australia as he was reluctant to leave his family in Italy.
On 23 April 2010, the applicant made his application to the Department of Immigration and Citizenship for a Protection (Class XA) Visa.
On 27 August 2010, the delegate of the Minister decided to refuse to grant the Visa and notified the applicant of the decision and his review rights by letter also dated 27 August 2010.
The applicant applied to the Tribunal on 22 September 2010 for review of the delegate’s decision.
On 4 February 2011, the Tribunal published its decision affirming the decision not to grant the applicant a Protection (Class XA) Visa.
The applicant’s application contained three grounds. At the hearing, counsel for the applicant indicated that the third ground of the application would not be pursued. The two remaining grounds stated as follows:
“1.The Tribunal committed jurisdictional error by making a finding that the Applicant’s permanent residency in Italy did not prevent him from seeking asylum in another European country.
Particulars
1.1 The Tribunal found that the Applicant did not have a subjective fear of persecution because, inter alia, he could have travelled to another European country to seek asylum, but did not do so.
1.2 The Tribunal found that it did not accept the Applicant’s claim that his permanent residency in Italy prevented him from doing so.
1.3 There was no evidence or other material before the Tribunal upon which the Tribunal could have based that finding.
1.4 The effect of European Community Law, being particularly the Procedures Directive and the Dublin II Regulation, is that a person with a permanent right of residence in a member state is unable to seek asylum in another member state.
2.The Tribunal committed jurisdictional error by:
2.1 Erring in its construction of “serious harm” within subs. 91R(2) of the Migration Act 1958 (Cth); or
2.2 Alternatively, failing to make a finding on a claim made by the Applicant.
Particulars
2.3 The Tribunal was satisfied that the “disruption” to the Applicant’s building work in Shengjin did not amount to “serious harm” within the meaning of subs. 91R(2).
2.4 The Applicant claimed that he had been refused building licences due to his political affiliation and that it would be unable to finished (sic). The Tribunal made no finding on these particular issues other than the finding set out above.
2.5 In the premises, the Tribunal either misconstrued the meaning of “serious harm” in subs. 91R(2) or failed to make a finding in respect of the Applicant’s claims and thereby constructively failed to exercise its jurisdiction.
The Legislation
A Visa may only be granted if the decision maker is satisfied that the criteria prescribed in s.65(1)(a) of the Migration Act 1958 (“the Act”) are met. If the decision maker is not satisfied that the relevant criteria are met, pursuant to s.65(1)(b) it must refuse to grant the Visa.
Section 36(2) of the Act proscribes criteria that must be met if a Protection Visa is to be granted. Relevantly to the present case, subsection 36(2)(a) of the Act provides that a Protection Visa may be granted if the applicant is “a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”.
“Refugees Convention” and “Refugees Protocol” are defined in subs.5(1) of the Act. It provides that the “Refugees Convention” is the Convention relating to the Status of Refugees done at Geneva on
28 July 1951 and the “Refugees Protocol” is the protocol relating to the Status of Refugees done at New York on 31 January 1967.
Australia has protection obligations under the Refugees Convention to persons identified in Article 1A(2) of the Convention. It states:
“(A person who)…owing to (a) 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; or who, not having a nationality and being outside the Country of his former habitual residence as a result of such events, is unable or owing to such fear, is unwilling to return to it”.
Sections 91(R) and 91(S) of the Act effect the meaning to be given to the expressions used in Article 1A(2). Subsections 91(R)(1) and (2), which are relevant to the grounds of review in the present case, provide as follows:
[s.91R] Persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
Unless an applicant establishes each and every element mentioned in Article 1A(2) of the Refugees Convention, a Protection Visa shall not be granted.
The application to this Court
The first ground of application relied upon relates to the Tribunal’s finding that the applicant did not have a subjective fear of persecution. It was submitted on behalf of the applicant that one of the findings leading the Tribunal to this conclusion was the finding that the applicant could have travelled to another European Country to seek asylum, but that he did not do so. It is submitted on behalf of the applicant that this finding is tainted by jurisdictional error as the Tribunal appears to have arbitrarily decided that the applicant’s statement that his permanent residency in Italy prevented him from applying for asylum to another European country was false.
The second ground relied upon relates to the Tribunal’s finding that the applicant was not ‘persecuted’ within the meaning of s.91R of the Act and, in particular, whether what the applicant complained of amounted to ‘serious harm’ within the meaning of s.91R(2) of the Act. It is submitted that jurisdictional error occurred in the Tribunal’s treatment of this issue.
The difficulty that the applicant has in this case is that even if he were successful in persuading this Court that jurisdictional errors occurred in relation to these two matters, the application would nevertheless be unsuccessful. This is because there are two Tribunal findings that remain unchallenged in these proceedings each of which is sufficient to deny the applicant a Protection Visa.
Firstly, in paragraph 41 of the Tribunal’s reasons they state;
“The Tribunal does not accept that the applicant was targeted because of his political associations …”.
It is to be noted that ‘political opinion’ was the only reason put forward by the applicant for his alleged persecution.
Second, also in paragraph 41 of the Tribunal’s reasons, it found that it (the Tribunal); “… is not satisfied that the applicant has a genuine fear (of persecution)”.
Each of these additional findings is sufficient to dispose of the application. Any error in the Tribunal’s consideration of the genuineness of the applicant’s fear of persecution (ground 1) or whether the conduct complained of amounted to persecution (ground 2) could not have affected the Tribunal’s ultimate decision because there were ‘alternative streams of reasoning’ each of which was sufficient to justify its decision and each of which were not affected by jurisdictional error.[1]
[1] VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 at [55] per Gray J; SZCJH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1660 at [23] per Sackville J; VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] per North J (special leave refused [2005] HCA Trans 940); NBAN vMinister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 57. Alternatively, relief should be refused on discretionary grounds: see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [28]-[29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, at [49]-[90] per Kirby J and at [91] per Hayne J; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 265 [232]-[233] per Allsop J.
No matter what conclusion this Court might come to in relation to the two remaining grounds that the application now relies on, the Tribunal’s decision can stand independently of decisions on those grounds. In these circumstances, I do not consider it necessary to decide these matters. The application should be dismissed.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Simpson FM
Date: 17 January 2012
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