BTJ16 v Minister for Immigration

[2018] FCCA 820

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTJ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 820

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – where Applicant claims he is involved in a blood feud in Albania – Applicant not a credible witness – Tribunal findings open on the evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 499

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510, 187

Minister for Immigration v Jia Legeng (2001) 205 CLR 507, 69

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1, 40

Applicant: BTJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1484 of 2016

Judgment of: Judge Hartnett

Hearing date: 26 February 2018

Delivered at: Melbourne

Delivered on: 6 April 2018

REPRESENTATION

Counsel for the Applicant: Mr Boccabella

Solicitors for the Applicant: A J Torbey & Associates

Counsel for the First Respondent: Mr Yuile

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $8,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1484 of 2016

BTJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an amended application dated 22 February 2018 in relation to which leave to file was granted, the amended application being filed out of time.  No objection was taken to that approach by Counsel for the First Respondent. The application is for judicial review of a decision of the Administrative Appeals Tribunal (‘The Tribunal’) dated 8 June 2016 which affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection (Class XA) visa (‘the visa’).

2. The Applicant relies upon the amended application filed and submissions filed on 23 February 2018. The Applicant seeks that the decision of the Minister be quashed and remittal of the matter to the Tribunal to be heard according to law. The Applicant seeks costs and disbursements properly incurred. The grounds of application as set out in the amended application are as follows:-

   “1. All previous grounds are hereby deleted.

   2. The second respondent did not conduct a proper review in accordance with Part 7 of the Migration Act.

   3. The second respondent misinterpreted and/or misapplied s 36 of the Migration Act 1958.”

   The Applicant also relies upon an affidavit affirmed by Ms Laura Mandeville on 22 February 2018 to which is annexed a copy of the transcript of the Applicant’s hearing at the Tribunal held on 29 March 2016 and 20 April 2016.

3. The First Respondent relies upon written submissions dated 16 February 2018 and supplementary written submissions dated 23 February 2018, the supplementary submissions addressing the new grounds 2 and 3 of the amended judicial review application. The First Respondent seeks dismissal of the application. The First Respondent submits no jurisdictional error attends the decision of the Tribunal. The First Respondent claims costs in accordance with the Schedule scale of costs as set out in the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’), together with a further sum for costs in respect of the preparation of the supplementary written submissions of the First Respondent in an additional sum of $1000.

4. There is also before the Court the evidence as contained in the Court Book filed 19 January 2017.

Background

1. The Applicant was born on 18 March 1994. He is an Albanian citizen who arrived in Australia on a Greek passport in a name other than the name in which he lodged the visa application.  He acknowledged that he travelled on a fraudulently obtained Greek passport. He claimed this was to facilitate his escape from Albania.  He travelled to Australia via Greece, where the passport issued on 26 April 2013, arriving in May 2013. 

2. The Applicant applied for the visa on 6 August 2013.  The Applicant claimed that he might be killed in Albania by family members and relatives of a girl with whom he had been in a relationship. He claimed they have threatened him on several occasions.  He claimed that he had met the girl in September 2010 and started a discreet love affair with her.  Five months into their affair, the girl told him she was engaged to marry another man.  In June 2012, the cousins and the girl’s brothers saw the Applicant and girl kissing in a car.  The man’s family broke off the engagement.  This triggered a “blood feud” between the Applicant’s family and the girl’s family.  The girl’s family rang the Applicant’s father and told him they were going to kill the Applicant.  They wanted revenge. The next day the Applicant was approached by three men at a petrol station. One of the men hit the driver side window. The Applicant drove off and the men followed him to his house. They could not catch him before he entered his house. The Applicant claimed he “was hiding for 8-9 months and hardly left the house” and on one occasion when he did, going to his uncle’s house, at his uncle’s house, “someone started firing gunshots…”

3. By decision of 29 July 2014, a delegate of the First Respondent refused the visa. The delegate noted the Applicant’s claims for protection as set out in his application for the visa and in a more detailed written statement provided to the delegate at interview. The Applicant also made claims during the interview with the delegate which included, as set out in paragraph 57 of the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’), that other members of his family were scared for their safety; that his brother had stopped going to school; and his father only goes out at night. In support of his claims the Applicant submitted a copy of a certificate issued by the Committee of Nationwide Reconciliation (CNR) on 18 June 2013 and signed by Mr [Y] stating that there is a blood feud between the Applicant’s and the girl’s families. He also submitted several documents relating to the work of the CNR. The delegate found the Applicant to be “not a credible witness. I find that his claims are made up.” Additionally, the delegate did not accept any of the documentary evidence submitted by the Applicant. The delegate stated in his decision record “The Department has credible information that the Chairman of the NRC, Mr [Y], ran a ‘document mill’ providing fraudulent certificates for false asylum seekers and criminals. It appears that Mr [Y]’s activities have long been of concern to the UNHCR and other governments.”

4. On 20 August 2014, the Applicant filed his application for review to the then Refugee Review Tribunal.

The Tribunal

1. By correspondence of 1 December 2015, the Tribunal (by then, the Administrative Appeals Tribunal (Migration and Refugee Division)) invited the Applicant to appear before it to give evidence and present arguments relating to the issues arising in his case on a hearing date of 15 February 2016.  That hearing did not proceed because the Applicant had been hospitalised the night before due to an apparent suicide attempt. A further hearing date and time were provided by the Tribunal being 24 March 2016 at 9.30am. That hearing date was again altered and a further hearing date was set for 29 March 2016 at 9.30am.

2. The Applicant appeared before the Tribunal on 29 March 2016 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages.  The Applicant was represented in relation to the review by his registered migration agent.  The Tribunal recorded in paragraph 39 of its Decision Record:-

   “The applicant appeared lucid and answered all the questions the Tribunal had, except in relation to the adverse information raised by the Tribunal pursuant to s.424A.”

3. At the hearing on 29 March 2016, the Applicant raised a new claim. He claimed that a member of the Albanian Parliament had argued with the Applicant’s family over a fishing dispute and had shot several members of the Applicant’s family at a police station. After considering this new claim, the Tribunal decided to schedule a second hearing for the Applicant to attend on 20 April 2016.  However, at that rescheduled hearing the Applicant appeared before the Tribunal and stated that he was unable to give evidence because he was too unwell.  The hearing did not proceed further and the Tribunal wrote to the Applicant on 21 April 2016.  As reported in paragraph 41 of the Decision Record:-

   “It put all the remaining questions it had in writing and gave the Applicant until 17 May 2016 to answer the questions and to respond to adverse information. The adverse information included the matters raised orally at the hearing on 29 March 2016 under s.424AA of the Act as well as other adverse information.”

4. The entirety of that correspondence from the Tribunal to the Applicant is in evidence before the Court as contained in Court Book pages 229 to 234 inclusive.  Relevantly, the correspondence is as follows:-

   “…The Tribunal has an obligation to invite you to appear before it, under s.425 of the Act. You already attended a hearing on 29 March 2016. At that hearing you appeared to be lucid and able to give evidence, present arguments and participate meaningfully.

   You were invited to a second hearing on 20 April 2016.  You came to the Tribunal on that date, but you indicated that you were too unwell to give evidence and present arguments. You asked the Tribunal to give you a list of questions in writing, rather than to wait for your mental health to improve so that you can come to a second oral hearing.  The Tribunal takes this to mean that you consent to the Tribunal deciding the review without the applicant appearing before it under s.425(2)(b).

   On 20 April 2016, the Tribunal was also expecting to receive a response to the adverse information raised at the first hearing.  In order to avoid any confusion, the Tribunal has included the s.424A information again, as well as some further s.424A information together with a list of questions.

   As discussed on 20 April 2016, in terms of the mental health evidence before it, the Tribunal has two letters from Dr Ngo and the discharge summary sheet from the emergency department from 15 February 2016.  Dr Ngo’s first letter from 10 February 2016 diagnosed you with depression and anxiety disorder. The second letter from 19 April 2016 – with post-traumatic stress disorder.  In emergency, in February, you were diagnosed with depression and “Situational crisis with suicidal ideation”, although at the time of your discharge you were said not to be a risk to yourself.

   Both on 29 March 2016 and on 20 April 2016 you said you were taking medication for your mental health issues, but you did not remember what it was.  At the hearing on 29 March 2016 you said you would contact your representative after the hearing and tell him what medication you are taking, but you did not do so.  Neither letter from Dr Ngo mentions any medication. The discharge summary from emergency states that you would sometimes take painkillers, but no other medication is mentioned. 

   The Tribunal would like further clarification, within the time provided to respond to the other written questions about (1) your diagnosis given that the two letters from Dr Ngo contain two different diagnoses;  and (2) what, if any, medication you have been taking other than painkillers since you first came to Australia.  You are invited to provide this information in writing, within the same time period as the responses to the s.424A adverse information.

   New Issue - Mr X

   The only issue the Tribunal wanted to discuss with you on 20 April 2016 relates to Mr [X].  On 29 March 2016 you told the Tribunal that a member of Parliament (or Deputy) called [X] had had an argument with members of your family [who] were threatened and injured by this MP.

   
   

   The Tribunal’s own research shows that these incidents did in fact take place.

   However, country information also indicates that Mr [X] has been charged in relation to these alleged offences.  The Tribunal has been unable to find any information which indicates that Mr [X] or anyone associated with him has threatened, harassed or harmed in any way any member of your family since the night of 4-5 September 2015.

   Country information indicates that Mr [X] was detained after this incident and stripped of his parliamentary immunity. He was charged with illegal possession of a firearm, causing serious injury and making death threats …

   The Tribunal’s questions are as follows:

   1. Do you have reason to believe that Mr [X] or anyone associated with him has threatened, harassed or harmed in any way any member of your family since the night of 4-5 September 2015? 

   2. If you believe so, on what evidence do you base your belief e.g. phone calls to relatives, emails, letters, newspaper articles?  Please provide as much detail and supporting evidence as possible. 

   3. Given that Mr [X] was arrested, stripped of his parliamentary immunity and charged with various criminal offences, why do you fear harm from Mr [X] or anyone associated with him, if you were to return to Albania?

   …

   Part 2:  Adverse Information

   In conducting its review, the Tribunal is required by the Migration Act 1958 to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that the Tribunal has not made up its mind about the information set out at (1) and (2) below. 

   (1) Mr [Y]

   At the first hearing the Tribunal put adverse information to you for comment pursuant to section 424AA. The Tribunal is putting the information to you for comment pursuant to s.424A. 

   The particulars of the information are as follows: 

   In 2011 Mr [Y], head of the National Reconciliation Committee, was arrested and charged with fraud for providing false attestation letters in exchange for payment.

   Albanian television program Fiks Fare filmed Mr [Y] with a hidden camera accepting 300 euros in exchange for issuing an attestation letter and creating a ‘vendetta file’ for a woman he had just met, and telling the woman that her brother must say during a hearing that he has proof he is still in danger.  The documents were subsequently used by the woman’s brother to seek asylum in the United Kingdom. 

   According to the Committee of Nationwide Reconciliation which issued a “Report of the National Assembly of Reconciliation Missionaries and the Committee of Nationwide Reconciliation about the Annual Expedition of Reconciliation Missionaries for the Unconditional Freedom of Isolated Women and Children”, dated 7 July 2012, people traffickers together with corrupt police and politicians have been seeking to tarnish the reputation of Mr [Y].

   In another letter, the National Reconciliation Committee claimed that money charged to the woman filmed in Fiks Fare was charged to cover logistics costs. 

   In May 2012 the Albanian authorities confirmed that no criminal proceedings were continuing against Mr [Y].

   However, in 2014 it was reported that an arrest warrant had been issued against [Z], resident of Durres and head of the National Assembly of the Missionaries of Nationwide Reconciliation of Albania and the Committee for Reconciliation for the District of Durres and two others for active corruption in the private sector and forgery of documents.  It was also reported that 12 people were arrested in Shkoder in 2014, including the local secretary of the National Reconciliation Committee for issuing false attestation letters.

   The IRBC found that the National Reconciliation Committee is the organisation most frequently mentioned by sources consulted in Albania as being linked to accusations of corruption and issuing false attestation letters.

   In 2012, the Immigration and Asylum Chamber of the Upper Tribunal (UK) found that the National Reconciliation Committee and Mr [Y] are wholly unreliable and that no weight can be placed on the attestation letters they produced.

   If the Tribunal accepts this information, it may find that the correspondence from Mr [Y] contains false claims.  This may lead it to find that your claims of past harm are fabricated that you have never been involved in a blood feud.  It may also lead the Tribunal to find that you are not a credible witness and that you do not fear harm on return to Albania. The information, if accepted, would be the reason or part of the reason for affirming the decision of the Department of Immigration.

   There is other adverse information that the Tribunal wanted to discuss at the Tribunal hearing on 20 April, which information, if accepted, would be the reason or part of the reason for affirming the decision under review.

   (2) Mr [X] and the events of 4-5 September

   The particulars of the information are:

   You claim that your family, including your brother [W] and your father, is involved in a blood feud and they remain inside the house, because they may be killed if they go outside.

   However, according to a press release by the Prosecutor General from December 2015 your family operates a bar.  In addition, on the day of the “attack” by Mr [X], your brother [W] was at the bar.  When an argument between [W], your cousin [V] and Mr [X], your brother called your father on the phone and asked him to come immediately to the bar where the argument happened.  Your father got in his car and attempted to drive to the bar…

   Further, Mr [X] was detained after the incident on 4-5 September 2015, stripped of his parliamentary immunity, charged with illegal possession of a firearm, causing serious injury and making death threats…

   The information is relevant because it is inconsistent with the claim that the family was in hiding.  In the Tribunal’s opinion it would be extremely difficult, if not impossible to operate a bar while in hiding in one’s house.  Furthermore, your brother was at the public bar on 4 September and on the same day when he contacted your father, your father left the house and attempted to drive to the bar.

   If the Tribunal accepts the above information is correct, it may find that your brother and your father are moving freely around their town and that you have made up the family feud claims. 

   In addition, the Tribunal may find that after 4-5 September 2015, Mr [X] has not presented a threat to any member of your family and therefore you have made your up claim to fear harm from him or people associated with him on return to Albania.

   As a consequence of relying on the above information, the Tribunal would reject your protection claims on credibility grounds and affirm the decision to refuse you a visa. 

   You are invited to give comments on or respond to the above information in writing…

   (emphasis in original)(footnotes omitted)”

5. The Applicant’s migration agent responded to the Tribunal’s request on the Applicant’s behalf by firstly, seeking an extension of time within which to reply, which was granted by the Tribunal, and thereafter by a series of emails comprising submissions from the Applicant’s representative together with information and news articles. The Tribunal received no further material from the Applicant himself.

The Tribunal Decision

1. The Tribunal affirmed the decision not to grant the Applicant a protection visa. The Tribunal commenced its Decision Record with a setting out of the relevant law, being the refugee criterion and the complementary protection criterion and Ministerial Direction No.56 made under s.499 of the Migration Act 1958 (‘the Act’).  The Tribunal noted various authorities in respect to the Tribunal making or not making an adverse credibility assessment in a refugee case before proceeding to a consideration of the Applicant’s claims and the evidence before it.

1. The Tribunal assessed the Applicant’s claims for a protection visa against the Applicant’s country of nationality being Albania.  The Tribunal considered in some detail the Applicant’s fitness to appear at the hearing to give evidence and present arguments. The Tribunal noted that after 31 May 2016, being the date of receipt by the Tribunal of the Applicant’s post hearing submissions, there was no request by the Applicant for a further oral hearing; and no request to delay the Tribunal’s decision for any reason relating to the Applicant’s state of mind and ability to provide further evidence and make arguments, except to wait until 2 June 2016 for a psychologist’s report, which the Applicant’s representative had foreshadowed would be provided to the Tribunal, but which was not received by the Tribunal. 

2. The Tribunal noted in paragraph 47 of the Decision Record that on the basis of the medical reports before it, the Tribunal accepted the Applicant suffered from PTSD and/or depression and/or anxiety but found that the Tribunal’s “own concerns about the applicant’s credibility have caused the Tribunal to conclude that to the extent that the medical letters tended to corroborate the applicant’s account of the events underlying his refugee claims, they are to be given little weight.”

3. The Tribunal detailed that the Applicant claimed to fear harm in Albania from the family of the girl with whom he had a love affair because she had been promised to another man at an earlier stage.  The Tribunal noted the Applicant’s claim that the girl’s family had declared a blood feud on the Applicant and his family. The Tribunal also noted that at the hearing on 29 March 2016, the Applicant raised new claims.

4. The Tribunal said in paragraph 50 of the Decision Record that:-

   “Blood feuds in Albania trace back centuries to the Canon (Kanun) of Lek Dukagjin, which dictates that when someone is killed, the victim’s family may take retribution by killing a male member of the extended family.” (footnote omitted). 

5. The Tribunal was clearly aware of the Applicant’s further claim that he could not obtain police protection because it was well-known that the police chose not to intervene to stop blood feuds. 

6. The Tribunal noted in paragraph 55 of the Decision Record that the Applicant had provided a certificate purporting to be from the Nationwide Reconciliation Committee signed by Mr [Y], head of the committee, and dated 18 June 2013, such certificate being before the delegate.

7. The Tribunal, in its Decision Record, set out the various claims of the Applicant and, in summary form, the discussions had between the Tribunal member and the Applicant in relation to questions asked of the Applicant by the Tribunal in respect of those claims.  The Tribunal raised with the Applicant matters of concern to it.  The Tribunal carefully considered all the evidence provided to it by the Applicant and his representative, including all the medical evidence.

8. The Tribunal ultimately found that the Applicant was “not a credible witness” and rejected the Applicant’s blood feud claims.  The Tribunal noted that it was cognisant of the fact that the Applicant has mental health problems and did not have regard to minor inconsistencies and problems with the Applicant’s evidence.  However, the Tribunal found other major problems with the Applicant’s claims.  The Tribunal found implausible significant parts of the Applicant’s story about his relationship with a 16 year old girl who was promised in marriage to someone else. 

9. The Tribunal also noted important omissions in the Applicant’s stated travel history, in particular, because the Applicant claimed he could not leave his house because of the blood feud yet he travelled to Greece and returned back to his house without incident.  The Tribunal said, at paragraph 103 of the Decision Record:-

   “Even taking into account the applicant’s mental health problems and his other vulnerabilities, the Tribunal considers that the applicant’s failure to mention the trip to Greece from March to April 2013, either in the application form itself or the relatively detailed statement provided with the application, was deliberate;  it was not an accidental omission or a “misunderstanding”.”

10. The Tribunal had asked the Applicant during the course of the Tribunal hearing whether he had travelled to Greece from 4 March 2013 to 26 April 2013 as the stamps in his passport, a copy of which he provided with the application for protection, seemed to indicate.  The Applicant admitted that he did.  He said that when he left Albania, his brother gave him a call to tell him that his mother was very sick. He was worried he would never see his family again so he returned to Albania for a short time.  The Tribunal pointed out to the Applicant that this had never been explained in the past, and that in his application he did not mention this trip. 

11. The Applicant said perhaps there was a misunderstanding.  The Tribunal had asked the Applicant whether he had any problems leaving his home in March 2013 and returning to his home in April 2013.  The Applicant responded he was fearful but that he did not have any choice.  When the Tribunal suggested to the Applicant that the trip undermined his claims that he feared leaving the house, he said he had no choice.  He left but then he travelled back to see his mother.

12. The Tribunal said, in respect of this claim, in paragraphs 105 to 108 of the Decision Record:-

    “105. The Tribunal notes that the applicant’s false Greek passport was issued on 26 April 2013.  A border stamp which appears on the applicant’s Albanian passport indicates that 26 April 2013 was the date when the applicant re-entered Albania from Greece.

    106.  The Tribunal considers it far-fetched that the applicant would have accidentally forgotten to mention on the application form and at the Tribunal hearing that he travelled to Greece in March-April 2013 and that he had to travel back to Albania, because his mother was sick, despite the grave risk.

    107.  The applicant’s trip to Greece in March-April 2013 is contrary to the claim that he was in hiding at home and it was the attempt on his life near his uncle’s house that caused him to leave the country the next day.  The absence of any mention of the first trip to Greece is a significant omission.

    108.  The Tribunal finds that the applicant travelled to Greece in March 2013 in order to obtain a false Greek passport.  Once he obtained it, he returned to Albania for about two weeks and left again on 5 May 2013.  It is because he already had a passport which he could use to travel to Australia that the applicant only needed to spend two days in Greece, 5-7 May 2013.”

13. In respect of the Applicant’s claim that he was in hiding at home for eight to nine months and that one night he went to his uncle’s house and was shot at, the Tribunal found it implausible that people who wanted to kill the Applicant because he “dishonoured” the girl would have waited for the Applicant near his uncle’s house, rather than near his own house, even if the two houses were relatively close to each other. The Tribunal noted the same implausibility infected other aspects of the Applicant’s claims.  The Tribunal gave weight to the fact that members of the Applicant’s family appeared to be going about their business around the town, travelled without danger, and were not in hiding because of the blood feud involving the Applicant. 

14. The Tribunal noted:-

    a)firstly, the Applicant’s family was operating a restaurant bar;

    b)secondly, the Applicant’s brother, [W], was at the family restaurant on the night of 4 to 5 September 2015; and

    c)thirdly, the Applicant’s father then drove in his car in an attempt to come to the rescue of [W] even though, at that time, [W] had not been hurt. 

15. The Tribunal noted the Applicant’s own evidence at the hearing that his father went fishing every night, or at least very regularly, and yet he had not been harmed in the period of almost four years since the alleged blood feud was first declared.  The Tribunal said at paragraph 113 of the Decision Record:-

    “The Tribunal considers that if the family was involved in a blood feud, it would have been too dangerous for the applicant’s brother and father to leave the house, even if they were often accompanied by other relatives.  If the extended family could provide such level of protection to other members of the applicant’s family, he himself could have remained in Albania.”

16. The Tribunal also gave little weight to the information from Mr [Y], in light of country information and decisions from the UK and Canadian immigration Tribunals which expressed concerns about Mr [Y].  The Tribunal, whilst accepting that just because Mr [Y] had been found to be an unreliable witness in the past did not mean that the letters he produced in support of the Applicant before the Tribunal were false, nevertheless, gave little weight to such letters because of the Tribunal’s other credibility concerns in relation to the Applicant and the concerns expressed by other decision making bodies about Mr [Y].

17. The Tribunal found at paragraph 118 of the Decision Record that:-

    “…(the girl) does not exist and the applicant was never involved in an affair with a girl who had been promised in marriage to another man.  There was never an attempt to kill him at a petrol station or anywhere else.  If the applicant returns to Albania now or in the reasonably foreseeable future, he will not be targeted in a blood feud.”

    The Tribunal found that the Applicant was not at risk for this reason.

18. The Tribunal found further that the Albanian authorities had engaged in a proper investigation of Mr [X]’s alleged criminal conduct in September 2015 which involved Mr [X] allegedly hitting the Applicant’s father in the head with a gun muzzle, causing injuries classified as flesh wounds and then subsequently  holding a gun  toward members of the Applicant’s family allegedly saying “we will eradicate your tribe”. According to statements of persons present at the scene, Mr [X] then shot the pistol several times. Members of the Applicant’s family suffered leg injuries from the gunshots. Legal proceedings (criminal) were pending against Mr [X]. The Albanian Constitutional Court was yet to determine [X]’s “political status”. Otherwise a property dispute between the Applicant’s family and Mr [X] was before the Courts which indicated to the Tribunal that the parties to the dispute, including Mr [X], were using legal means to settle it. This dispute was one essentially over fishing rights.

19. On the evidence before it, which included no evidence that any of the family of the Applicant had been harmed or threatened since early September 2015, the Tribunal found there was less than a real chance that Mr [X] or anyone associated with him would seek to harm the Applicant if he returns to Albania now or in the reasonably foreseeable future.  The Tribunal found the Applicant did not have a well-founded fear of persecution for any reason.

20. The Tribunal, having concluded that the Applicant did not meet the refugee criterion in s.36(2)(a) of the Act considered the alternative criterion in s.36(2)(aa) of the Act. The Tribunal noted that it had found the Applicant’s claims in relation to the girl’s family to have been fabricated. The Tribunal found on the totality of the evidence before it, that there was less than a real risk that Mr [X], or anyone associated with him, would seek to inflict significant harm on the Applicant. The Tribunal, therefore, found no substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Albania there was a real risk that he would suffer significant harm.

Consideration

1. The Applicant argues that the Tribunal’s reasons indicate a process whereby only adverse material and assertions were agitated, rather than the undertaking by the Tribunal of a careful review and analysis of the positive and negative aspects of the Applicant’s case.  The Applicant argues that the Tribunal became a contradictor. Of course, it is well accepted that is not the Tribunal’s function. It is for the Applicant to make out his own case. It is not a task of the Tribunal to do so for the Applicant.[1] The Tribunal’s function is to determine the issues on review. In that process, findings of fact are matters for the Tribunal.

   [1] Abebe v Commonwealth (1999) 197 CLR 510, 187, Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1, 40.

2. The Applicant argues that almost every possible inference was drawn against the Applicant by the Tribunal without a proper and fair weighing of the material before it.  The Applicant argues further the Tribunal deprived itself of the opportunity to examine, and find, if there was an appropriate “kernel of truth” in the blood feud phenomenon in this case.

3. When considering these matters, the Court finds firstly, there can be no apprehension of bias with respect to the Tribunal decision.  Whilst that allegation is not made in the written submissions of the Applicant, the suggestion that the Tribunal has failed to conduct a proper review by “adopting a position of a contradictor”, may have some form of bias allegation behind it.  To be completely clear, the Court finds the Tribunal decision has no element of bias, or any possibility of an allegation thereto, attaching to it. There is no allegation “distinctly made and clearly proved.”[2]

   [2] Minister for Immigration v Jia Legeng (2001) 205 CLR 507, 69.

4. The Applicant argues in more specific terms that the material held by the Tribunal concerning Mr [Y] was not revealed to the Applicant prior to the hearing to enable the Applicant an opportunity to understand it, and give a reasoned response. In essence he was denied procedural fairness. This argument cannot succeed. The Applicant was afforded procedural fairness and the Tribunal acted in accordance with its statutory obligations under s.424AA of the Act. Section 424AA of the Act is as follows:-

   “MIGRATION ACT 1958 - SECT 424AA

   Information and invitation given orally by Tribunal while applicant appearing

   (1)  If an applicant is appearing before the Tribunal because of an invitation under section 425:

   (a)  the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)  if the Tribunal does so--the Tribunal must:

   (i)  ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)  orally invite the applicant to comment on or respond to the information; and

   (iii)  advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv)  if the applicant seeks additional time to comment on or respond to the information-adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   (2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”

5. At the first hearing, the Tribunal put adverse information to the Applicant for comment, pursuant to s.424AA of the Act. That information concerned Mr [Y]. Following the second hearing and by correspondence of 21 April 2016, the Tribunal wrote to the Applicant putting information concerning Mr [Y] to the Applicant for him to comment pursuant to s.424A of the Act. This was adverse information that the Tribunal had already put to the Applicant and wished to further discuss with the Applicant at the Tribunal hearing on 20 April 2016. The Applicant was given sufficient time to respond to the correspondence of 21 April 2016 and nothing done by the Tribunal suggests that there was, in its process, a breach of procedural fairness or that anywhere in its procedure and/or the matters contained in its correspondence, it became a contradictor. The Tribunal was seeking necessary facts in order to determine the matter.

6. The Applicant claimed the inclusion of the historic fact that Mr [Y] in 2011 was arrested and charged with fraud for providing false attestation letters in exchange for a payment but that thereafter, in May 2012, the Albanian authorities confirmed no criminal proceedings were continuing against Mr [Y], was information which the Applicant alleged to be irrelevant to the proceedings. The Applicant submitted the inclusion of the historical fact that Mr [Y] had been arrested and charged was done by the Tribunal only for the purposes of colouring the evidence, and was included in the way an advocate may approach such issue.

7. I do not accept that submission. The Tribunal was merely stating obvious and accepted facts as part of the overall relevant history of Mr [Y]. The fact that Mr [Y] had been arrested and charged with no criminal proceedings then continuing, was not a matter which determined the weight the Tribunal gave to the letters produced by Mr [Y], for the purposes of the Applicant’s proceeding. Extensive country information was given weight by the Tribunal and informed its decision. Further, contrary to the submission of the Applicant as to this matter, there was no obligation on the Tribunal to find further information as to Mr [Y] including “the original” of any material, in particular in circumstances where there was no evidence that the material before the Tribunal was inaccurate.

8. The Tribunal considered the various claims and integers of those claims made by the Applicant and made findings of fact open to the Tribunal on the evidence before it.  Some of those findings involved an acceptance of some parts of the Applicant’s evidence, which included that blood feuds do exist and might form the basis of a claim for protection, and a rejection of others, which included that neither the Applicant nor his family were involved in a blood feud.  The Tribunal made findings about the Applicant’s credibility adversely to the Applicant. This is not a matter of jurisdictional error. The Tribunal did so as it proceeded through an examination of:- the claims made by the Applicant; the material supporting or otherwise not supporting those claims; any inconsistencies in the Applicant’s own evidence; and country information that supported, or did not, the Applicant’s claims.

9. The Tribunal engaged in a consideration of all the matters raised by the Applicant in a transparent and methodical way. The Tribunal applied the correct law. It afforded to the Applicant procedural fairness in accordance with its statutory obligations.

10. In essence, what the Applicant seeks is merits review. The Tribunal’s findings were matters of fact for it.  The finding that it was implausible that a 16 year old girl would have agreed to have sex with the Applicant very soon after meeting him face to face on their second date, at a time when she had been promised in marriage to someone else and would have known that the consequences for her and the Applicant would be severe, was only one of a number of factors that led the Tribunal to reject the Applicant’s claims. The Tribunal made many other factual findings open to it in its “conventional approach to the Tribunal’s task as a fact finder” as submitted by the Second Respondent.

11. The Tribunal referred in paragraph 96 of the Decision Record to an article about blood feuds. The Applicant’s migration agent had forwarded this article to the Tribunal and the Tribunal noted that the reference to the article has been initially made by Mr [Y] to the Applicant’s migration agent.  The article entitled “Behind the Murky World of Albanian Blood Feuds”,[3] was in part, reproduced in the Decision Record, being those parts relevant, as determined by the Tribunal, to the particular facts in the proceeding before the Tribunal. 

    [3] The Telegraph, accessed at type="1">

12. That extract is as follows:-

    “[Blood feud claims] are claims which British officials say are almost always bogus – or at the very least, not what they appear to be.  Waiting for an appointment outside Mr [Y]’s office is a case in point – Bajram Cani, a retired labourer tells how his daughter, Drita, murdered her husband and both her parents-in-law after they tried to force her into “immoral acts”.

    She later killed herself too.  That was in 1996.

    For the last 20 years, Mr Cani, 77, has technically been in a “blood feud”, although he candidly admits that no one is immediately threatening to kill him and that the family of his former in-laws – most of whom are now dead – are living just a few doors down from his current home.

    “I am not afraid for my life, but I am hoping that [Y] can provide me with a paper confirming that I am in a feud situation before I migrate to Germany,” he says.  “The paper will help me when I get to Germany.  I need to go for my health; it is too hot here for me.”

    Such blood feud “certificates” have flooded the European asylum system, officials say, to the point where the published Home Office guidance to UK asylum tribunals warns that such or [sic] attestation letters “should not in general be regarded as reliable evidence of the existence of a feud”.

    Nicholas Cannon, Britain’s ambassador to Albania, has gone even further, using a 2013 speech to accuse local government officials and NGOs of developing “a business in so-called blood feud certificates” that feeds off the outdated Balkan stereotype of Albania as backward and dangerous.

    “There is no reason for any Albanian to seek asylum in any EU country – not for political or security reasons,” Saimir Tahiri, the interior minister in Albanian’s Socialist Party-led government, told The Telegraph.

    Despite an Albanian government crackdown, Mr [Y] – who was himself investigated by police for selling forged certificates in 2014 before all charges were dropped after he successfully argued the charges were politically motivated – remains in business, and defiant…

    Asked about Mr Cannon’s criticisms, he says. “He doesn’t know what he’s talking about – in fact, as an ambassador, he couldn’t find the tail on a donkey.”

    As for the interior minister, Mr [Y] is equally scathing. “The minister just repeats the party line; he says all that stuff because he wants the British ambassador to believe him and because that is what Europe wants to hear – so they can make Albania a member of the EU.”

    …

    As we drive, we ask Mr [Y] about the case of Mr Cani, the old labourer who wants to move to Germany with his wife.

    Mr [Y]- unaware that Mr Cani has already explained he is not in fear of his life – tells a rather different story to the old man. “Sure he’s frightened for his life. They are hunting him to kill him,” he said, before adding he will give a letter supporting the case.”

13. The Tribunal noted in the Decision Record that it was also provided with “refutation statements” alleging that Mr Cani was in fact fearing for his life.

14. The Applicant argues that in the above, the Tribunal set out adverse parts of the article and did not include the positive parts, as claimed by the Applicant (though in fact, not all are positive), which are as follows:-

    “The difficulty for British asylum tribunals is that in Albania, fact and fiction are often extremely difficult to tell apart.

    Home Office guidance warns that most Albanian press reports of feuds should “add little or no evidential weight in considering whether a feud exists”. But like many compelling stories, the blood feud phenomenon lives on because it does have at least a kernel of truth to it.  The code, which was actually designed to stabilise society rather than rip it apart, was ruthlessly suppressed during the Communist dictatorship of Enver Hoxha.

    But after liberation it re-emerged and even today can force entire families into hiding to avoid the threat of reprisal killings. To prove his point, Mr [Y] takes us to visit the Mhilli family in their home on the rural outskirts of the ancient of town of Shkoder, 60 miles north of Tirana.

    Inside, Gjon Mhilli, 34, tells his story- how five members of a local family set on him in a land dispute in 1992 stabbing him in the gut. He was rescued by his older brother, Pal, who bludgeoned one of the men to death with a hand plough, setting up a blood feud that has lingered ever since.

    “I know I am a dead man walking” says Mr Mhilli, gesturing at his other son. Klevis, 16 and eight-year-old daughter, Govana. “I have asked them to free my children from the feud, but they refuse, and the children cannot go to school. What they want is payment in blood.:

    Mr Mhilli and his wife, Valentina, say they are driven half-mad by being cooped up in the simple house whose whitewashed walls are adorned with a large crucifix and pictures of the Virgin Mary and the Last Supper.

    They don’t even dare go out to plant the vegetable garden for fear that a phone call will be made and Mr Mhilli will be taken by a sniper’s shot from one of the estimated 200,000 guns that were looted from government arms dumps in 1997 when Albania briefly succumbed to anarchy.

    “Our dog “red” was shot on the doorstep a few weeks ago” says Mr Mhilli, “And the other family, they threaten us barbarically, they telephone and promise to burn down the house and burn my children with it.”

    All attempts at mediation with the other family have failed, explains Mr [Y]. When his local “missionaries” go to the other family “they set the dogs on them” he adds, and now no-one dares to approach the other side at all.

    Mr Mhilli says the local police will not help him – “they say ‘it’s Albania, you are in a blood feud, you know the rules”  and that he cannot move away because the opposing family is too rich and well-connected- “they will find me in  a day, and kill me.”

    Unable to live in hiding in Albania and unable to claim asylum abroad, Mr Mhilli says he is stuck in a limbo that only has one possible end – his death.

    It is a powerful story, and one that enables Mr [Y] and other NGOs like his to make their case that the Albanian government is down-playing a national tragedy in order to oblige European nations like Britain, who last year still granted 366 out of 1,982 Albanian asylum claims.

    Still, whatever the truth of some individual cases, it is clear that there is more than a degree of poetic licence to many of the “blood feud” claims made by Albania’s asylum seekers.”

15. The Tribunal had before it the entire article and had clearly considered it. It was not obliged to include it in its entirety in the Decision Record. The inclusion of the particular part as described in paragraph 46 above, does not establish that the Tribunal “consciously or subconsciously took on the role of contradictor” as submitted by the Applicant. Rather, it indicated that the Tribunal considered the material before it; acknowledged its receipt; and included that which it considered relevant. The contents of the article did not determine the factual findings made by the Tribunal. The Tribunal accepted blood feuds existed. The Tribunal found, on the particular facts before it as they related to the Applicant and his family’s circumstances, that the Applicant and/or his family were not involved in a blood feud.

16. The Tribunal’s finding that the Applicant was not a credible witness and his claims about a blood feud had been concocted, together with its findings in respect of Mr [X] which led it to conclude that there was no risk arising for the Applicant in respect of Mr [X] led the Tribunal to find that there was no real risk that the Applicant would suffer harm if he returned to Albania.  The Tribunal did not misconstrue and/or misunderstand the Applicant’s claims. The Tribunal applied the correct legal test. The Tribunal made factual findings open on the material before it.

17. There is no jurisdictional error attending the decision of the Tribunal.  The application shall be dismissed and costs shall follow.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  6 April 2018