Capa v Minister for Immigration & Multicultural Affairs - [2001] FCA 898

FEDERAL COURT OF AUSTRALIA
Capa v Minister for Immigration & Multicultural Affairs [2001] FCA 898
MIGRATION – application for protection visa – review of decision of Refugee Review Tribunal – applicant a citizen of Albania whose name was on a “hit list” in 1991 – whether the applicant was persecuted in 1991 – Refugee Review Tribunal did not make a finding on whether or not the applicant was currently on a “hit list” – whether this constitutes an error of law
Migration Act 1958 (Cth) s 476(1)(e), s 476 (1)(b)
Minister for Immigration & Ethnic Affairsv Wu Shan Liang (1996) 185 CLR 259 referred to
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 referred to
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 referred to
Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 referred to
Minister for Immigration & Multicultural Affairsv Y [2001] FCA 859 referred to
Minister for Immigration & Multicultural Affairsv Yusuf (2001) 180 ALR 13 referred to
Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 referred to
Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 736 referred to
RAMAZAN CAPA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
V 766 OF 2000
HELY J
18 JULY 2001
SYDNEY (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 766 OF 2000

BETWEEN:

RAMAZAN CAPA
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

HELY J

DATE OF ORDER:

18 JULY 2001

WHERE MADE:

SYDNEY (HEARD IN MELBOURNE)

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 766 OF 2000

BETWEEN:

RAMAZAN CAPA
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

HELY J

DATE:

18 JULY 2001

PLACE:

SYDNEY (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

The applicant is a citizen of Albania. Prior to 24 May 1991 he lived with his wife in Shkoder. At that time, the Communist Party was in power and had held power in Albania for over 50 years.
The applicant began working for the Democratic Party in September 1990. He actively supported the party in Shkoder during the April 1991 election campaign, which the Democratic Party lost and which was won by the Communists. In April 1991 the applicant became a member of the Democratic Party.
RRT accepted that the applicant believed that the Communists had placed his name on a “hit list” after the 1991 elections because of his political activities, and accepted that his name “may have been” on a “hit list” in 1991. The applicant claimed to have learnt of this fact from a person working with the police in Shkoder who had seen the list. In the context it seems to me that RRT has accepted the applicant’s…

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 898
Decision Date: 18 JULY 2001

CaseChat Overview and Summary

The matter before the Federal Court of Australia involved the applicant, Capa, contesting the decision of the Minister for Immigration & Multicultural Affairs. The applicant, a former member of the Democratic Party of Albania, argued that he faced persecution if returned to Albania due to his political past. The court was tasked with reviewing the decision of the Refugee Review Tribunal (RRT), which had rejected the applicant's claim for refugee status.

The legal issues before the court included whether the RRT had erred in its assessment of the applicant's risk of persecution if returned to Albania and whether the RRT had failed to consider relevant evidence and material considerations. The court had to determine if the RRT's decision was legally sound and whether it had taken into account all relevant factors in the applicant's case.

In examining the RRT's decision, the court noted that it had considered the current country information, which indicated that the general risk to supporters of the Democratic Party had diminished. The court also found that the RRT had not erred in the weight it assigned to the hearsay evidence from 1996 and 1997 compared to more recent information. Furthermore, the court held that the RRT was not required to specifically address every question posed by the applicant and that its failure to do so did not constitute a legal error. The court concluded that the RRT's decision was within its legal authority and based on a proper consideration of the evidence.

Consequently, the application for judicial review was dismissed. The court ordered that the application be dismissed with costs, indicating that the applicant's challenge to the RRT's decision was without merit.

Orders

Orders of the court

1. The application be dismissed with costs.

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

HELY J

Figuratively speaking that may involve a finding that the applicant is not “on the list” (if there is one), or it may involve a finding that his name remains on the 1991 list, but that is no longer of relevance because supporters of the Democratic Party in general are not at risk in Albania today by reason of their political opinion, and the applicant does not have a profile which places him at any greater risk of being harmed by the Socialist government. It may also mean that RRT placed less weight on the hearsay evidence of 1996 and 1997 than it has on the current country information. But that is a matter for RRT. RRT did not commit any legal error in failing to respond specifically to the questions which the applicant contends it was bound to address nor did it thereby fail to take material considerations into account: Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225, 286; Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 736, [15].Conclusion The application should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: HELY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 766 OF 2000

BETWEEN:	RAMAZAN CAPA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	18 JULY 2001
WHERE MADE:	SYDNEY (HEARD IN MELBOURNE)

JUDGE:	HELY J
DATE:	18 JULY 2001
PLACE:	SYDNEY (HEARD IN MELBOURNE)