CZAC v Minister for Immigration
[2006] FMCA 609
•27 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CZAC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 609 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – information provided prior to application to Tribunal – reason or part of reason for decision – no invitation to comment under s.424A – jurisdictional error – decision set aside. |
| Migration Act 1958 (Cth), s.424A |
| SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 |
| Applicant: | CZAC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | CAG 17 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 19 April 2005 |
| Delivered at: | Canberra |
| Delivered on: | 27 April 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | City First Solicitors |
| Counsel for the First Respondent: | Mr R Knowles |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal be joined as second respondent.
The decision of the second respondent of 14 April 2004 and handed down on 15 May 2004 be set aside.
The application for a protection visa be remitted to the second respondent for determination according to law.
The first respondent pay the applicant’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 17 of 2004
| CZAC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Refugee Review Tribunal made on 14 April 2004 and handed down on 11 May 2004. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
Consistent with SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 I join the Tribunal as a party to these proceedings. References to the respondent in these reasons are to the Minister, the first respondent.
Background
The applicant is a citizen of Albania. He arrived in Australia on 4 July 2002. On 24 July 2002 he applied to the then Department of Immigration and Multicultural and Indigenous Affairs for a protection visa. On 27 November 2002 a delegate of the respondent refused his protection visa application and on 21 December 2002 he sought review of that decision by the Tribunal. When this was unsuccessful he applied for judicial review on 7 June 2004.
Claims before the Department and the Tribunal
The applicant was originally from Rragram in Albania. He and his family moved to Gorre in 1990, at which time they bought farm land. They worked this land without any problems for six or seven years.
In 1997 neighbours, the T family, began to claim that the land was rightfully theirs. This led to an escalating dispute over the land. The applicant was threatened and had a physical fight with RT. Calm returned for two years.
Unexpectedly in February 2001 RT shot the applicant in the stomach. The police came and spoke to the applicant about the incident, but they did not arrest T. The applicant claimed that no arrest was made because T’s brother was a police officer in the area and the police chief was a Muslim while the applicant was a Roman Catholic.
The applicant claims that he has a well founded fear of persecution for reason of his membership of two particular social groups: his own family and newly arrived settlers in the region. He also claims that he was persecuted for political and religious reasons.
Tribunal decision
The Tribunal consideration and its reasons are accurately reflected in the following paragraphs from the respondent’s submissions (cross references to the Court Book omitted):
3.1 In its decision, the Tribunal affirmed the delegate’s decision refusing to grant the applicant a protection visa. The Tribunal concluded that “there is not a real chance that the Applicant would be subjected to serious harm amounting to persecution for a Convention reason if he returns to Albania, either now or in the foreseeable future.”
3.2 The Tribunal generally accepted the factual aspects of the applicant’s claims. However, it was not satisfied that they presented any nexus with the Refugees Convention (as amended by the Refugees Protocal) (“Convention”). In particular, the Tribunal made the following findings:
(a)the applicant and his family moved to Gorre in 1990, some eleven years before the shooting of the applicant, and legitimately purchased land there;
(b)the applicant’s family had no difficulties for seven years until 1997, when the T family, who owned adjacent land, commenced a land dispute over the borders of the two properties;
(c)the land dispute “festered” from that point in time and, in February 1999, the applicant and R T were involved in a fight;
(d) this animosity became personal and the applicant and RT were involved in a number of other fights, such as when they played pool;
(e)on 9 February 2001, RT expectedly shot the applicant;
(f)the applicant was not shot due to the existence of a ‘blood’ feud;
(g)it was not satisfied that the motivation for the shooting of the applicant, or the reason he feared that he might be shot again, was Convention-related;
(h)the applicant claimed that he was shot by reason of his membership of a particular social group, being either:
(i) his family; or
(ii) “newly arrived settlers in the region who are politically, socially and religiously disadvantaged and open to persecution on the basis of their membership of a social group which is ostracized and persecuted by people who have been established in the region for many years, in some cases generations”
(i)however, the motivation for the shooting of the applicant did not involve his membership of either of these two groups;
(j) rather, the cause of the growing personal animosity between RT and the applicant was “initially a land dispute between the Applicant’s family and PT… and importantly this animosity was then over time greatly exacerbated by, and more likely even specifically prompted by, the developing personal history of antagonism, frequent fighting and conflict between them that occurred after 1999’;
(k) on the basis of relevant country information and the applicant’s own evidence, the police had not withheld state protection because of his Roman Catholic religion or any other Convention reason, including any political reason;
(l)rather, the absence of effective policing in Gorre resulted from “more prevalent violence in the community and the inability of the authorities to deal with these issues”;
(m) in the circumstances, a generalised fear in relation to conditions in Albania did not amount to a well-founded fear of persecution for a Convention reason;
(n) the applicant and his family had not experienced harassment, detention, torture or persecution by reason of their religion;
(o) nor had the applicant or his family had any other difficulties with the authorities, police or other neighbours by reason of their religion;
(p)therefore, the applicant did not have a well-founded fear of serious harm amounting to persecution because of his religion;
(q)the chance that RT would, after three years, be bothered and able to track down the applicant elsewhere in Albania with the intention to cause him serious harm or to kill him was remote;
(r)the applicant’s family continued to farm and live on the land which they had legally purchased in Gorre in about 1990;
(s)the applicant had been a farmer on this land all his adult life prior to coming to Australia;
(t)if for any reason he did not wish to return to his family’s farm, the applicant would be able to seek a farm job elsewhere in Albania and the essential and significant reason for any difficulties that he might have in finding a job, if any, would not be Convention-related.
Consideration
On 11 March 2005 the applicant filed an amended application with five grounds of review. On 19 April 2005 he abandoned those grounds and I gave leave to file in Court a further amended application with the following grounds:
a)the Tribunal identified a wrong issue or asked a wrong question or failed to ask the correct question
b)the Tribunal breached the requirements of s.424(1) of the Migration Act 1958 in that it failed to take into account the CIS online information regarding blood feuds in Albania
c)the Tribunal committed jurisdictional error by failing to ask whether relocation to another part of Albania would be reasonable in all the circumstances of his case.
These grounds were fully argued at the hearing. However, this was prior to the High Court decision in SAAP and the subsequent important Full Federal Court decision in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 on s.424A.
Section 424A: invitation to comment on information given to Department
Section 424A is in the following terms:
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information.
Allsop J relevantly considered SAAP in SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 at [14]-[15]:
14 In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 a majority of the High Court said that any failure whatever to comply with s 424A of the Migration Act 1958 (Cth) (irrespective of any conclusion one could reach from the surrounding circumstances that the applicant had been accorded substantive procedural fairness) amounted to jurisdictional error vitiating the decision.
15 SAAP must be read together with Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 in which it was held that the reference in s 424A(3)(b) to the information "that the applicant gave for the purposes of the application" was a reference to the information given by the "applicant" for the purpose of the "application" for review: that is, to the Tribunal. Thus, s 424A(3)(b) does not encompass information provided to the Department or the delegate by the person who subsequently becomes the applicant to the Tribunal for review.
SZEEU affirmed Al Shamry. Thus a duty can arise under s.424A(1) where particular information is provided by the applicant prior to his application to the Tribunal.
As a result of SAAP, Al Shamry and SZEEU it is necessary to consider whether the Tribunal breached s.424A in respect of information it received by way of the Department’s file.
There are at least two relevant items of information which were provided by the applicant’s migration agent to the Department on 3 October 2002:
·information about the ongoing land dispute between the two neighbouring families in a document dated 1 August 2002 from the Commune Chairman, Dede Keri (the “Keri document” - Court Book 94)
·information about the police inquiry into the 9 February 2001 shooting and about broader enforcement issues in a document dated 1 August 2002 from Lt Col Agron Dervishi, Kurbin Region Police Office (the “Dervishi document” - Court Book 119).
At [18] in SZECF Allsop J said three considerations arise:
| (a) | whether there is "any information" for the purposes of s 424A(1)(a); |
| (b) | if so, whether it can be said to be information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review; and |
| (c) | whether in the light of any questioning about the earlier statement the information can be said to have been given for the purpose of the Tribunal review application. |
Clearly both the Keri and Dervishi documents provided information. Both were given to the Department by the applicant’s agent on 3 October 2002 prior to the application to the Tribunal on 21 December 2002. I have been unable to discover any questioning by the Tribunal about the information contained in these documents which would suggest that it was given for the purposes of the Tribunal review application.
Importantly in both cases the documents contained information that the Tribunal considered as a part of the reason for affirming the delegate’s decision:
·the Keri document was used at least in part to confirm that the cause of the animosity between the families was initially a land dispute. This formed the basis for the Tribunal’s rejection of any Convention reason being behind the shooting (Court Book 21)
·the Dervishi document made clear that police took the shooting seriously. It also gave alternative reasons for the lack of effective policing. This information supported the Tribunal’s conclusion that police did not withhold state protection to the applicant for any Convention reason (Court Book 22-23).
This information was not put to the applicant following the mandatory procedure under s.424A. The Tribunal therefore fell into jurisdictional error. I am unaware of any reason for withholding discretionary relief (see SAAP at [84]).
In view of my findings on s.424A it is unnecessary to consider the three grounds advanced by the applicant.
Conclusions
Following the reasoning in SAAP, Al Shamry and SZEEU I am satisfied that the Tribunal committed jurisdictional error by breaching s.424A.
I have therefore not had to consider the grounds put forward by the applicant.
The decision must be set aside and the respondent pay the applicant’s costs.
I certify that the preceding twenty-two paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 27 April 2006
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