Bitani v Minister for Immigration & Multicultural Affairs - [2001] FCA 631

FEDERAL COURT OF AUSTRALIA
Bitani v Minister for Immigration & Multicultural Affairs [2001] FCA 631
MIGRATION - refugees - application for a protection visa - applicants nationals of former Federal Republic of Yugoslavia - applicants ethnic Albanians - applicants previously accorded refugee status in Albania - refoulement to a third country - whether the expression “right to enter and reside” in a third country in s 36(3) of the Migration Act 1958 (Cth) means a legally enforceable right - whether s 36(2) continues to operate as previously interpreted notwithstanding the introduction of s 36(3) - (5) of the Act so that the availability of effective protection in a third country means that Australia has no protection obligations to the visa applicant under s 36(2).
MIGRATION - whether failure to comply with s 420(2)(b) gives rise to the ground of review available under s 476(1)(b).
MIGRATION - whether general country information is information specific to the applicants within s 424A(3)(a).
MIGRATION - whether the decision of the Refugee Review Tribunal was induced or affected by actual bias in breach of s 476(1)(f) of the Migration Act 1958 ( Cth).
Migration Act 1958 (Cth)
Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543 Applied
Kola v Minister for Immigration and Multicultural Affairs [2001] FCA 630 Applied
Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 Referred to
S115/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 540 Referred to
Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229 Applied
Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71 Applied
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Applied
ALBAN BITANI AND MAJLINDA BITANI v THE MINISTER FOR
IMMIGRATION AND MULTICULTURAL AFFAIRS
MANSFIELD J
ADELAIDE
30 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 104 OF 2000

BETWEEN:

ALBAN BITANI AND MAJLINDA BITANI
APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

30 MAY 2001

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 104 OF 2000

BETWEEN:

ALBAN BITANI AND MAJLINDA BITANI
APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

MANSFIELD J

DATE:

30 MAY 2001

PLACE:

ADELAIDE

REASONS FOR JUDGMENT
THE DECISION UNDER REVIEW

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) given on 8 August 2000. The Tribunal affirmed a decision of a delegate of the respondent to refuse the application of the applicants for a protection visa under the Migration Act 1958 (Cth) (“the Act”).
The delegate of the respondent and, on review, the Tribunal were not satisfied that the applicants were persons to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 631
Decision Date: 30 MAY 2001

CaseChat Overview and Summary

The case of Bitani v Minister for Immigration & Multicultural Affairs involved the applicants, Bitani, seeking to challenge a decision made by the Tribunal that they could return to Albania without fear of persecution. The dispute was heard and determined by the Federal Court of Australia. The applicants argued that the Tribunal had erred in its assessment of their claims and the potential risks they faced if returned to Albania.

The primary legal issues before the court were whether the Tribunal had erred in its process and assessment of the applicants’ claims of fear of persecution upon returning to Albania. The applicants argued that the Tribunal did not adequately explore their claims, the practical realities of their circumstances in Albania, and the specific nature of their fear relating to potential persecution. The court needed to determine if the Tribunal's process and findings were legally sound and whether there were grounds for judicial review under section 476(1) of the Act.

The court found that the Tribunal had not prejudged the issue of the applicants' potential protection in Albania and had a consistent conclusion based on the evidence presented. The court emphasised that the applicants did not provide sufficient material to demonstrate that they would be persecuted upon return to Albania, and thus, the court could not re-hear the application on the merits. The court further noted that the available grounds for review were limited to those specified in the Act, and the applicants had not effectively relied on the additional material to show reviewable error on the part of the Tribunal. Given the acknowledgment by the respondent’s counsel that a remittal for reconsideration would be appropriate if reviewable error were found, the court found it unnecessary to consider the additional material.

The court dismissed the application, holding that there was no basis to interfere with the Tribunal's decision. The court adopted the reasoning from the earlier case of Kola v Minister for Immigration and Multicultural Affairs, noting the similarities in circumstances and grounds of review. The court concluded that the Tribunal's process and findings were legally sound, and therefore, the application for judicial review was without merit.

Orders

Orders of the court

1. The application be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J

In my judgment, the Tribunal has not been shown to have so prejudged the issue whether the applicants could secure effective protection in Albania upon refoulement there as to have had a closed mind on that issue irrespective of the evidence and arguments. Its conclusion is consistent with the evidence as it emerged, and in the light of the information which was provided by the applicants during the hearing, its manner of questioning or the content of its questioning does not reveal any such bias.CONCLUSION For those reasons, I consider that this application should be dismissed. I so order.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

The second purpose was to demonstrate that there is material which the applicants would adduce to the Tribunal, if given the further opportunity to do so, directed to showing that they cannot return to and live safely in Albania because there is a real chance that they will be persecuted in Albania for a Convention reason. Counsel for the applicants did not seek to rely on that material so as to effectively achieve a re-hearing of the review application on the merits. The Court is not empowered to do that. The available grounds of review are confined to those specified in s 476(1) of the Act. The material was adduced to show that, if reviewable error on the part of the Tribunal were otherwise demonstrated, it would not be futile to remit the application for review of the delegate’s decision to the Tribunal for reconsideration. Counsel for the respondent acknowledged that, if reviewable error on the part of the Tribunal were established, it would be appropriate to remit that review application to the Tribunal for reconsideration. In view of that acknowledgment, it is not necessary to receive that affidavit material for that second purpose.CONSIDERATION OF GROUNDS OF REVIEW This matter was argued together with the application for review of a decision of the Tribunal in Kola v Minister for Immigration and Multicultural Affairs [2001] FCA 630 (“Kola”). Reasons for decision in Kola were delivered immediately before these reasons for decision. The circumstances of the applicants are similar to the circumstances of the applicants in Kola. The grounds of review in each matter have substantial commonality. In those circumstances, these reasons for decision are somewhat shorter than would otherwise be the case. I will express my reasons for decision in part by adopting the reasons for decision in Kola, but of course it will be necessary to address the individual circumstances of the applicants. As in the matter of Kola, the claimed error of law on the part of the Tribunal related in part to the quality of the Tribunal’s process rather than to any specific terms of its reasons. It is claimed that the Tribunal did not explore or assess the applicants’ claims of fear of persecution in Albania as it found simply that “they did not like living there and state the country is corrupt and there is general violence”, and did not assess the practical realities of the applicants’ circumstances in Albania, including those faced by them as Catholics in Albania and as potential targets of violence by the Kosovo Liberation Army, and did not explore the “special nature” of the applicants’ claims relating to their fear of returning to Albania. According to the initial interviews with the applicants on 5 January 2000, with the assistance of an interpreter, they came to Australia to get away from trouble in Kosovo. At that point they made no claims of fear of persecution in Albania itself. Their applications for protection visas, dated 6 January 2000, also made no complaint concerning any fears of returning to Albania or of mistreatment whilst they were there, although the form to be completed does not direct attention to that question. The decision of the delegate of the respondent did not focus on that issue, and the application to the Tribunal for review of that decision dated 3 March 2000 understandably also did not contain that focus.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 104 OF 2000

BETWEEN:	ALBAN BITANI AND MAJLINDA BITANI APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	30 MAY 2001
WHERE MADE:	ADELAIDE

JUDGE:	MANSFIELD J
DATE:	30 MAY 2001
PLACE:	ADELAIDE