AZACF v Minister for Immigration - [2013] FMCA 151

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AZACF v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 151

MIGRATION – Judicial review of RRT decision to affirm decision of delegate that applicant not owed protection obligations – claim that unarticulated argument arising squarely upon the information before the Tribunal not addressed – dismissal of review application.

Migration Act 1958 (Cth), ss.36 & 476

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
SVRB v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 1176
NABE v Minister for Immigration, Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 256
Dranichnikov v MIMIA (2003) 197 ALR 389
Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 184

Applicant:

AZACF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

ADG 127 of 2012

Judgment of:

Lindsay FM

Hearing date:

25 February 2013

Date of Last Submission:

25 February 2013

Delivered at:

Adelaide

Delivered on:

7 March 2013

REPRESENTATION

Counsel for the Applicant:

Dr Churches

Solicitors for the Applicant:

McDonald Steed McGrath

Counsel for the Respondents:

Mr d'Assumpcao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for judicial review filed on 27 June 2012 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 127 of 2012

AZACF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (“the Act”) for an order by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 31 May 2012 to affirm the decision of the Minister not to grant the applicant a protection visa.
The decision of the Tribunal is a purported privative clause decision and accordingly a review will not be allowed unless the decision of the Tribunal can be shown to have been vitiated by jurisdictional error. That the identification of such an error is necessary was made plain by the High Court as long ago as the decision of Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
The applicant is aged 25 years and was born in Albania. He entered Australia on a fraudulently obtained Italian passport on 23 April 2011. He made his application for a protection visa on 30 August 2011. It was refused by the delegate on 23 December 2011.
The applicant’s parents and younger brother live in Albania. He has a sister who lives in Australia.
He changed his surname from Cuni to Cola in 2009.
When he was in Albania he worked at a warehouse in Gerdec. Certain munitions were stored at the warehouse, where the applicant worked as a welder. On 15 March 2008, (while the applicant was not himself at work) and explosion occurred at the warehouse. Twenty-seven people were killed and hundreds were injured. The injured included the applicant’s father who lost an eye and sustained injuries to an arm and leg.
The applicant’s father has been incapacitated from working since the explosion. The warehouse was closed after the explosion and the applicant lost his job. The applicant repeatedly sought compensation from the former employer on behalf of his father but it was continually refused.
An inquiry was convened into the explosion and uncovered evidence of corruption associated with the export of ammunition from Albania during the communist era. A whistle-blower, a Mr Trebicka, who appears to have been responsible for the institution of the inquiry into the corruption following the explosion, was himself found dead in September 2008 in circumstances of some suspicion. There then followed an investigation into his death.
The applicant claimed that during the course of the inquiry into the explosion he and his family were threatened with harm or death if they spoke to the authorities about what had happened. The threats arose on account of his knowledge of the corruption but also because of his persistence in seeking compensation for his father. It was on account of these threats and his fear for his safety, he said, that he left Albania. He came to Australia to get as far away as possible from Albania.
The Tribunal had a number of concerns about the credibility of the applicant’s account and of certain aspects of his conduct. He made no reference to his sister living in Australia in that part of his original application which sought to elicit information about close relatives living in Australia. It had concerns about his account of meeting up with Albanians on the day of his arrival in Australia. The Tribunal formed the view that he had not given an honest account of having arranged to meet with Albanians whom he already knew and who were living in Adelaide. It had difficulty in accepting his explanation for his change of surname. It identified inconsistencies between the account he gave to the delegate of a visit to his home by a representative of the Ministry of Defence and there being no account in that interview of threats and threatening phone calls following upon that interview, whereas in his original statement in support of his application and in the information he provided to his psychologist (who provided a report to the Tribunal) much is made of the threats that follow this visit.
Furthermore, in his interview with the Tribunal he had said “not really” when asked if he had received threats. The Tribunal put this concern as to the credibility of his account to him but was not satisfied with his explanation or that explanation provided in writing by his representative.
The Tribunal considered that the information he had in relation to the corruption and munitions dealing at Gerdec was no more than information commonly available as described in the country information to which the Tribunal had regard.
The Tribunal accepted that he worked at Gerdec and that his father was injured in the explosion in the way the applicant claimed. The Tribunal also accepted he vigorously sought compensation for his father including through an association, an Association of the Gerdeci Tragedy Victims Relatives. The Tribunal also accepted that he was understandably distressed by the lack of compensation and by corruption in Albania.
Importantly, however, the Tribunal did not accept he had been subjected to threats of serious harm or that his life had been threatened. Indeed, the Tribunal made a finding that he had either exaggerated or fabricated this aspect of his claim. In coming to this conclusion the Tribunal referred to its general concerns about his credibility and to the fact that neither he nor any members of his family were harmed while he was in Albania and that no members of his family been harmed since he left Albania.
The Tribunal distinguished the applicant’s position from that of Mr Trebicka who was identified in the country information as a key whistle-blower in the early stages of the post-explosion investigation, whereas the applicant was one who campaigned for compensation together with other victims and victims’ family members. The Tribunal found the applicant’s evidence at the hearing before it in relation to the alleged threats to be “vague, inconsistent and unconvincing” though it accepted he may have been told to keep quiet during the visit to his home by the Ministry official.
Whilst the Tribunal accepted extensive corruption in Albania occurred and that corruption was a reason for the lack of progress in the application for compensation it did not consider the issue of corruption and the applicant’s knowledge of it had led to any threats of harm or threats to his life.
All of these matters led to the Tribunal finding that there was not a real chance of the applicant suffering harm on account of an actual or an imputed political opinion or his knowledge of the corruption or his actions in demanding compensation for his father and that dealt with the primary application for a protection visa under s.36(2)(a) of the Act.
The applicant also had before the Tribunal an application under s.36(2)(aa) of the Act. That sub-section provides a criterion for a protection visa is that the applicant is someone to whom the Minister is satisfied Australia owes protection obligations because the Minister has substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to his country of origin, there is a real risk that he will suffer significant harm.
Significant harm is defined in s.36(2A) of the Act. That sub-section provides:
A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
These provisions are described in the amendment to the Act which introduced them as providing for “complimentary” protection for visa applicants.
The Tribunal rejected this claim because it found that there were no genuine threats to his life or there was a real risk he would be arbitrarily killed should he return to Albania in the foreseeable future and because he had not claimed that he would face the death penalty or be subjected to torture, or degrading treatment of punishment. Consequently, the Tribunal found that there were not substantial grounds for believing that as a consequence of his being removed to Albania was a real risk that he would suffer significant harm.
There were three grounds of review but only grounds two and three were promoted in oral argument.
Ground two alleges that the Tribunal fell into jurisdictional error by failing to identify and then deal with the applicant’s claim that he would suffer persecution on account of his membership of a particular social group namely, relatives of persons demanding compensation for death and injury caused by the Gerdec explosion. The claim that the applicant would suffer persecution on account of his membership of such a social group was not expressly made by or on behalf of the applicant but was said to have arisen sufficiently from the material before the Tribunal to require it to be addressed.
The Tribunal at [58] specifically notes a reference to the existence of the Association in an article from a major Albanian newspaper which article includes the response of the Association to the verdict of the court conducting an inquiry into the explosion given in March 2012. Furthermore, the Association is specifically referred to by the applicant’s representative at page 39 of the transcript of the Tribunal hearing (see the annexure to the affidavit of Ms McGrath of 13 February 2013).
The decision of Lander J in SVRB v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 1176 provides a clear example of the obligation on the part of the Tribunal to determine whether an applicant belongs to an identified social group and whether that group was capable of constituting a social group in terms of the Convention, once there is material before the Tribunal which “squarely” raises that issue (see [64] of His Honour’s decision).
That expression is the subject of some discussion in the context of unarticulated claims by the Full Court of the Federal Court in NABE v Minister for Immigration, Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 256 at [58]:
58. The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
It is contended that once the obligation to consider the claim arises, the identification of the social group (and whether it satisfies Convention criteria) should be carried out in accordance with the reasoning of the High Court in Dranichnikov v MIMIA (2003) 197 ALR 389 and it is said that in that case the applicant had no more evidence than his own account of his experience to show that the particular social group in Russia existed and that members of that group were subject to persecution in Russia because of their membership of it.
I accept the applicant’s contentions as to the law relating to this issue of unarticulated claims but I do not consider that an obligation arose on the part of the Tribunal in this case to give consideration to the applicant’s membership of the particular social group identified and that is because of the Tribunal’s unambiguous findings that the applicant had not been threatened or otherwise suffered persecution on account of his involvement in the pursuit of his father’s compensation claim and that neither would he be at any real risk of persecution in the future because he had done so.
Whether the applicant’s contentions in relation to his fear of persecution for pursuing the compensation claim are considered from the perspective of his personal and solitary efforts (which were overwhelmingly the focus of his own case) or are viewed from the perspective of his membership of the Association of relatives, the Tribunal did not accept that there had been persecution or that there was a real risk of persecution in the future on account of this activity.
The reference to the Association in the Tribunal’s summary of the country information was incidental as was the reference to the Association by the applicant’s representative in her submissions before the Tribunal.
For the Tribunal to have recast this particular claim in the form of a claim for persecution on the part of membership of a particular social group, the conclusion which it would have reached in relation to such claim would have been no different than the conclusion it reached when the issue was approached from the perspective of actual or imputed political opinion or arising from his personal pursuit of compensation for his father.
It was unnecessary in my view for the Tribunal to make a finding on the issue of the social group aspect of the matter because a key factual foundation of the contention made in relation to that social group was rejected by the Tribunal (see Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47]).
This is sufficient to deal with this ground even if I accept for the purposes of the argument that the social group issue had been squarely raised on the material before the Tribunal (which contention is itself subject to some doubt).
In relation to the complimentary protections aspect of the matter, the applicant contends that there is an inconsistency between the two key passages of the paragraph in which the Tribunal deals with this issue namely [70]. On the one hand, the Tribunal says:
The applicant has claimed he fears harm if he returns to Albania which could include arbitrary deprivation of his life…
and then says a few lines later:
He has not claimed he will face the death penalty or that he will be subjected to torture, or cruel or inhuman treatment, or degrading treatment or punishment.
It is said that he has claimed that he will face the death penalty because he has made the claim of fear of arbitrary deprivation of life. However, what this contention overlooks is that the definition of significant harm in s.36(2A) of the Act includes at (a) arbitrary deprivation of life and, at (b) the carrying out of the death penalty.
The Tribunal is surely right in suggesting that the applicant’s claims included the former and not the latter. We know from the very text of the section that these are two distinct species of significant harm. The concept of a “death penalty” connotes the exercise of state judicial or quasi-judicial or even executive power and that was never part of the applicant’s claimed fears of persecution.
Neither ground of review is made out. No other grounds were pursued.
The application will be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 6 March 2013