MZAGT v Minister for Immigration

[2017] FCCA 54

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAGT & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 54

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

First Applicant: MZAGT

Second Applicant: MZAGU

Third Applicant: MZAGV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1274 of 2014

Judgment of: Judge Riethmuller

Hearing date: 14 December 2016

Date of Last Submission: 14 December 2016

Delivered at: Melbourne

Delivered on: 3 February 2017

REPRESENTATION

The First Applicant appeared In Person

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal.

2. The application be dismissed.

3. The First and Second Applicants pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1274 of 2014

MZAGT

First Applicant

MZAGU

Second Applicant

MZAGV

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (as it was then called) made 2 June 2014.  The applicant, with his spouse and child are citizens of Albania who sought a protection visa in Australia. The applicant’s claim is brought on the basis that the primary applicant was at risk of harm as a result of deserting the military and being targeted in a blood feudal revenge attack.

2. The applicants first arrived in Australia in September 2008 on student visas which ceased in October 2009 (the applicant child being born in Australia in 2011).  The applicants applied for protection visas in February 2013.  This application was refused by the delegate in November 2013, following which the application for review was brought to the Tribunal.  The Tribunal heard the parties and received oral evidence from the first applicant’s uncle.  The hearing was conducted with the assistance of an interpreter, and the applicants were represented by their registered migration agent.

3. At the commencement of the hearing before this court the applicant sought an adjournment on the basis of his medical condition.  The applicant said that he was in the process of recovering from a mental illness and sought to postpone the hearing until late 2017.  The medical report, from Dr Timlin of Monash Health, is brief, and sets out that the applicant has been a patient of Monash Health since April 2014, showing symptoms of anxiety, low mood, and feelings of persecution and outbursts of anger.  The applicant was treated with antidepressants and initially symptoms improved.  He has also been offered psychological support but not attended all appointments.  Dr Timlin states:

   Symptoms seem to be related to a negative visa determination and pending court cases.

4. In conclusion Dr Timlin said:

   In view of the current vulnerabilities and the impulsive nature of symptoms – makes it difficult to predict [MZAGT’S] ability to cope with added life stressors such as court appearances.  I understand that these have been postponed in the past to allow for this.  I would recommend additional support and flexibility during such events. 

5. The application has been pending before this court for nearly two and a half years.  The medical report does not suggest that there will be a significant improvement in the applicant’s mental health in the foreseeable future.  Rather, it appears that the court proceedings remain a significant life stressor for the applicant.  In these circumstances it does not appear appropriate that an adjournment should be granted.

6. At the commencement of the proceedings, the applicant’s uncle was permitted to sit at the bar table with the applicant and the interpreter.  Unfortunately, the outbursts and interruptions by the applicant’s uncle made it necessary to advise the uncle that if the outbursts continued he would have to be removed from court.  He did not heed such warnings, however chose to leave himself prior to security arriving at the court room. 

7. Following these difficulties, the applicant was advised that the hearing would be adjourned for a brief period if he sought some time to speak to his uncle prior to finalising his submissions.  Ultimately, the applicant was given time to speak to his uncle to obtain clarification of a particular claim that he raised orally in the proceedings.  The applicant apologised for the behaviour of his uncle in the early part of the proceedings. The applicant was assured that as the case concerned him and his immediate family and not his uncle, the behaviour of his uncle was not a matter that would be taken into account against him in these proceedings.

8. The Tribunal decision outlines that the applicant left Albania in November 2007, saying that he intended to seek protection, travelling first to Greece and then to Italy.  He did not lodge any claims for protection in either of these countries but returned to Albania in April 2008 where he remained until August 2008.  The applicant told the Tribunal that his uncle had told him he would try to get a visa for him to come to Australia.  As the Tribunal said in paragraph [22]:

   22. His failure to seek protection in Greece or Italy in 2007/08, together with his voluntary return to Albania between April and August 2008 cause the Tribunal to doubt that the applicant father had a subjective view of serious or significant harm in Albania at that time.  The applicants’ failure to claim protection in Australia for some four and a half years after their arrival in September 2008 causes the Tribunal to further doubt the genuineness of the applicant father’s claims to fear harm in Albania.

9. The Tribunal went on to consider the applicant’s claims with respect to having deserted compulsory military service in 2003 or 2004.  It was noted that since January 2010 Albania has not had a regime of compulsory military service.  The Tribunal reviewed a number of documents provided by the applicant ultimately accepting that the applicant did not complete his military service, but concluded that he had not been the subject of any adverse interest by the authorities for this reason in the past and that Albania has now abandoned its compulsory military service regime.  As a result, the Tribunal did not accept that the applicant would face sanctions or otherwise be targeted for harm on account of his failure to complete his military service if he were to return to Albania (see paragraph [29]).

10. The Tribunal also considered the applicant’s claims that he will be targeted as a result of a blood feud or revenge attack arising out of an incident that occurred in 1999.  The applicant said that he stabbed a boy several times with a screwdriver in a fight over the boy’s girlfriend.  In submissions before me the applicant explained that he had stabbed the boy with a screwdriver five times.  The Tribunal accepted that the applicant had stabbed the boy several times with a screwdriver, and ultimately concluded:

    35. Further the Tribunal considers the applicant father’s claim that he will be targeted in a blood feud as a result of this incident to be inconsistent with his evidence that Ilir’s family did not denounce him or press charges and that nothing further has occurred since 2001.  While the Tribunal has accepted that the applicant stabbed a boy named Ilir several times with a screwdriver in a fight over the applicant’s girlfriend in 1999, the Tribunal has significant doubts that he was attacked by Ilir or his associates in 2001.  Giving the applicant father the benefit of the doubt on this point and accepting that he was in 2001 attacked as claimed, the Tribunal finds that in any event he suffered no further harm relating to this incident since 2001.  The Tribunal does not accept that the applicant is involved in a blood feud or revenge attack arising out of his incident, nor does the Tribunal accept there to be a real chance that Ilir or his family or associates would seek to seriously harm the applicant father if he returns to Albania, now or in the reasonably foreseeable future.  In making this assessment the Tribunal has had regard to the document lodged with it after the hearing purporting to be authored by the Chairman of the Committee of National Reconciliation stating in essence that the lack of justice and efficacious legal institutions in Albania means that its citizens still face the grave phenomenon of self-justice, vendetta.  While the Tribunal accepts that vendetta and bloody feuds occur in Albania, for the reasons given the Tribunal does not accept that it has occurred to the applicant.

11. The Tribunal also considered the applicant’s claims to be at risk as a result of his political opinions.  He said that he was a supporter of the Socialist Party of Albania and claimed to be threatened by members of the opposing Democratic Party of Albania.  The Tribunal said:

    38.  The Tribunal accepts that the applicant voted for the Socialist Party of Albania in the 2005 elections as claimed, noting that the independent sources indicate that southern Albania where the applicant’s home of Pogradec is located is a traditional stronghold of the Socialist Party.  However the Tribunal’s grave concerns about the applicant’s credibility cause the Tribunal not to accept that he was arrested in 2005 for voting for the Socialist Party as claimed, nor that he was arrested at a demonstration in 2006 as claimed, noting that the latter claim was made for the first time at the Tribunal hearing.  In making that assessment the Tribunal also notes independent sources indicating that the Socialist Party was in power in Albania going into that election and that Freedom House described the 2005 elections as the first in post-communist Albania to see a “rotation of power without significant violence”[1].  In these circumstances the Tribunal does not accept that the applicant father was arrested and detained merely for voting for the Socialist Party as claimed.

    [1] Freedom House 2009, Freedom in the World Country Report Albania, 16 July

12. The Tribunal also carefully examined evidence of one of the applicant’s witnesses concluding:

    41.  For the reasons set out above, the Tribunal has not accepted that the applicant father’s uncle and witness, Mr Mankolli, was granted protection in Australia on the basis of his own political activities.  Further the Tribunal notes that Mr Mankolli’s own claims for protection as advanced at his own Tribunal hearing in 1994 related to his claimed membership of Albania’s Democratic Party and his fear of harm from the Socialist Party, which is inconsistent with his evidence in these proceedings that he fled persecution in Albania as a result of his propaganda and work for the Socialist Party.  That information was put to the applicant pursuant to the procedures set out in section 424A by letter dated 1 May 2014.  In the applicant’s response dated 15 May 2014 it is claimed that Mr Mankolli did temporarily switch his support to the Democratic Party in 1988/89 and that his evidence at the time of his own Tribunal hearing in April 1994 was true, but that when he returned to Albania in 1995 he was convinced that he had made a mistake in switching his alliance six years earlier and declared his support for the Socialist Party once again.  The Tribunal does not accept this to be true, considering that the applicant father and his uncle have fabricated their evidence as to their past political activities.  Nor does the Tribunal accept on the evidence before it that the applicant father’s family are otherwise politically active in Albania.

13. After traversing a range of evidence on this issue the Tribunal did not accept that the applicant had a well-founded fear of persecution as a result of his actual or imputed political views. 

14. Similar findings were made with respect to the complementary protection claims.

Grounds for Review

1. The only ground set out in the applicant’s application is:

   The tribunal failed to properly consider all my claims.

2. Although directions were made in September 2014 directing the applicant to file and serve an amended application with proper particulars of the grounds and written submissions none were ever filed.  At the hearing the applicant was asked to articulate the nature of his claims as best he could, and not restricted by the fact that he had neither filed an amended application or a written outline.  The applicant produced a number of documents which are marked Exhibit ‘2’, many of which were before the Tribunal.  To the extent that they were before the Tribunal they are matters that have been properly considered in the Tribunal’s decision. 

3. The most recent document was not part of the evidence before the Tribunal, and simply restates the claim with respect to a conviction for desertion for the military.

4. To the extent that the documents were before the Tribunal they have been considered as is set out in the Tribunal’s decision.  To the extent that they are new documents the applicant seeks merits review on the basis of further evidence, which is not available in judicial review proceedings.

5. The applicant also argued that he was unwell at the time of his hearing before the Tribunal, and that therefore the process was unfair. There is no medical evidence directly addressing his capacity to have participated in the hearing before the Tribunal. There is no transcript of the proceedings. The extent of the information obtained by the Tribunal from the applicant indicates that the applicant was able to participate and put his case forward at the Tribunal hearing. The Tribunal specifically considered the nature of his mental health at paragraph [19].

6. I see no error on the part of the Tribunal in proceeding to hear and determine the application at the time that it was before the Tribunal member.  The terms of the decision indicate that the Tribunal had regard to the applicant’s mental health when assessing the evidence and the circumstances of the case.

7. The applicant also argued from the bar table that the Tribunal failed to take documents into account.  The applicant was not able to identify a document that was before the Tribunal that was not taken into account.  It seems that this argument was based upon a claim that the Tribunal did not place sufficient weight on the documents that he provided.  Effectively, the applicant sought merits review of the Tribunal’s decision.

8. The applicant also raised a claim of bias against the case officer, expressing concern that the case officer may have been biased against him on the basis that he understood the case officer to be of Greek heritage.  The applicant explained that traditionally, on his understanding, there were considerable racial tensions between Greeks and Albanians.  He said that there was nothing said to him face-to-face that would indicate bias but that his uncle had told him that biased statements had been written in a document by the case officer.  Following an adjournment to allow the applicant to discuss his submissions with his uncle, the applicant returned and referred to passages in the delegate’s decision at court book pp. 198 and 200.  The passage at court book p.200, reads as follows:

   I have considered the applicant’s responses.  Whilst I have serious concerns over the applicant’s claim that he stabbed a boy three to four times which could have resulted in the boy’s death and possible exclusion under the Refugees Convention and Complementary Protection provisions, I am of the view that this incident did not occur.  Nor do I accept that a vendetta exists.  I therefore place no weight on the document provided and on the claim made.

9. There is nothing in this passage to indicate any basis upon which to claim that the case officer had exhibited any form of bias or conduct that would raise any apprehension of possible bias.

10. The second passage referred to by the applicant is set out at court book p.198, and reads as follows:

    The UK Home Office Country of Origin Information Report on Albania dated 30 March 2012 states that since 1 January 2010, Albania no longer has compulsory military service and that it is now an all-volunteer professional army.  This is part of the reforms required by NATO, which Albania hopes to join after meeting the requirements of the Alliance. 

    Applicant 1 was asked why he would be harmed for evading his military service given that it is no longer compulsory.  The applicant stated that his name is on the list of people who did not complete their military service and that he broke the law at the time.  The applicant was asked about the documentation he presented.  It was put to the applicant that the document dated January 20, 2013 showed there was an arrest order for him following a condemnation by the District Law Court Pogradec in relation to his military service.  However, in the document dated February 25, 2013 which post-dated his arrest order in the same law court that made the condemnation regarding his military service, the document states there is no penal case on his behalf.  The applicant claims that the arrest order is from the Army court and that he has not committed any crimes in Albania but rather he has not fulfilled an obligation.

    I have considered the applicant’s responses.  I retain some concern over the fact that applicant 1 presented two conflicting documents and do not place any weight on this.  I place significant weight on the country information and the fact that military service is no longer compulsory in Albania.  I therefore do not accept that applicant 1 would be harmed because he has not completed his military service given the recent reforms in Albania.

11. The argument with respect to this passage moved towards claims that were effectively seeking merits review rather than any form of claim of actual or apprehended bias. 

12. On the material placed before the Court there is no basis for claims of actual or apprehended bias with respect to the case officer.  Whilst the applicant’s mental health may well have led him to have made assumptions of this type to explain the outcome in his decision, I can see no basis in the material for such claims to be made by his uncle, and in the context of these proceedings it is quite irresponsible of his uncle to be encouraging him in such outrageous claims.  Even if there were some basis for arguing that there was an apprehension of bias by the case officer, this does not affect the Tribunal who considers the matter afresh.  As a result these allegations cannot be a basis for judicial review of the Tribunal’s decision.

13. The applicant next recounted the incident that occurred when he was 16 and stabbed the other teenager and how the result of the stab wounds was that the other teenager (who was a talented soccer player) could no longer continue with his soccer.  These matters appear to me to be arguments for merits review rather than judicial review of the Tribunal’s decision. 

14. On the material before the Court the applicants have not established any basis for judicial review either on the basis of an error of law on the part of the Tribunal nor on the basis of any failure to provide the applicant with procedural fairness in the manner in which the hearing was conducted.  The findings of fact by the Tribunal appear to me to have been open to it upon the evidence before it, and it is not open to the applicants to seek merits review before this Court. 

15. In the circumstances the application must be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 3 February 2017