MZWDA v Minister for Immigration - [2006] FMCA 7

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWDA v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 7

MIGRATION – Protection Visa – whether opportunity given to all Applicants to attend hearing – non attendance by Applicant’s spouse – whether denial of procedural fairness.

Migration Act 1958, ss.47(1), 65(1), 91S(a)

SZALV v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1370
Applicant M189 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1218
Minister for Immigration and Multicultural and Indigenous Affairs v SVBB [2005] FCAFC 12

Applicant:

MZWDA

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 156 of 2004

Judgment of:

McInnis FM

Hearing date:

22 April 2005

Delivered at:

Melbourne

Delivered on:

31 January 2006

REPRESENTATION

Counsel for the Applicant:

Mr. T. Hurley

Solicitors for the Applicant:

Acquaro & Co Barristers & Solicitors

Counsel for the Respondents:

Mr. W. S. Mosley

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Amended Application filed 7 March 2005 be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 156 of 2004

MZWDA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant relies upon an amended application filed 7 March 2005 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 February 2004. The Tribunal decision affirmed a decision of a delegate of the First Respondent to refuse a protection visa to the Applicant, his wife and his child.
The Applicant entered Australia on 2 May 2001 and is a Albanian citizen. On 25 May 2001, the Applicant applied for a protection visa. On 21 November 2001, the Applicant's wife and child entered Australia. By letter dated 10 December 2001, the Applicant's wife and child sought to join the Applicant's application for a protection visa and made their own claims for protection (Court Book 62-68).
Although the Applicant's wife and son did not pay any separate application fee, they did complete separate applications for protection visas.
The Applicant's spouse in her visa application in answer to the question, "Why did you leave country?" states in relation to Albania the following:-
“MY HUSBAND'S FAMILY IS IN A BLOOD FEUD WITH THE (X) FAMILY. THE (X) FAMILY INTENDS TO TAKE REVENGE ON A MALE MEMBER OF OUR FAMILY. MY HUSBAND AND MY YOUNG SON ARE AT RISK OF BEING KILLED BY THE (X) FAMILY. MY HUSBAND HAS SOUGHT PROTECTION IN AUSTRALIA FROM THE BLOOD FEUD. IT IS NOT SAFE FOR ME TO REMAIN IN ALBANIA WITHOUT MY HUSBAND BEING A WOMAN. WOMEN IN ALBANIA FACE A SERIOUS THREAT OF BEING KIDNAPPED AND SOLD INTO PROSTITUTION THERE ARE GANGS IN ALBANIA WHICH KIDNAP WOMEN AND TAKE THEM TO OTHER EUROPEAN COUNTRIES WHERE THEY ARE SOLD TO PROSTITUTION RACKETS.”[SIC]
In answer to the question, "What do you fear may happen to you if you go back to that country?" the Applicant's spouse states in her application:-
“I FEAR THAT I WILL BE KIDNAPPED OR SOLD INTO PROSTITUTION IN I REMAIN IN ALBANIA. WOMEN FACE A HIGH RISK OF BEING KIDNAPPED ESPECIALLY IF THEY ARE SINGLE OR THEIR HUSBAND IS NOT AROUND TO PROTECT THEM.” [SIC]
In answer to the question, "Who do you think may harm/mistreat you if you go back?" the Applicant's spouse responded:-
“IT IS WELL KNOWN THAT THERE ARE ORGANISED CRIMINAL GANGS IN ALBANIA WHO SELL ALBANIAN WOMEN INTO PROSTITUTION RACKETS IN OTHER EUROPEAN COUNTRIES SUCH AS ITALY.”
Further in her application, the Applicant's spouse in answer to the question, "Do you think the authorities of that country can and will protect you if you go back? If not, why not?" responded:-
“THE ALBANIAN GOVERNMENT AND AUTHORITIES ARE POWERLESS TO HELP ME. THE POLICE ARE CORRUPT AND INEFFICIENT. TRAFFICKING OF WOMEN IS A MAJOR PROBLEM IN ALBANIA AND THE AUTHORITIES HAVE BEEN UNABLE TO PUT A STOP TO THIS CRIME.”
In his application, the Applicant's son appears to repeat the concern about the "blood feud" with the X family". I have deleted reference to the real names in this judgment.
In applications for bridging visas, both the Applicant's spouse and his son seek to be added to the Applicant's application for a protection visa.
On 15 February 2002, the Applicant's spouse and son through their solicitors lodged an application for a member of the family unit (“form D”).
A delegate of the First Respondent in a decision dated 14 March 2002 determined that the Applicant was not a person to whom Australia had protection obligations and refused the application. It is noted from the Court Book that a letter from the Department dated 25 March 2002 addressed to the Applicant attaches the decision record of the delegate and relevantly states,
“The attached decision record also includes the following members of your family unit who made specific claims to be refugees but who have also been refused a Protection visa:…”
The letter refers to the Applicant's wife and son and further states the following:-
“*Please note that the previous letter sent to you on 15 March 2002 inadvertently omitted to notify you of the decisions in relation to your wife and child.”
In the decision record, the delegate relevantly states:-
“The protection obligations criteria may be broken down into the following sub-criteria all of which must be satisfied if this criterion is to be met. In this case, all three members of the family unit have lodged separate claims, but I consider the claims lodged by the infant child X, to be essentially identical to those of his father and as set out below. The separate claims submitted by (the Applicant's spouse) follow this assessment.”
The delegate then proceeds to deal with the claim of the Applicant and his son, and then separately deals with a claim of the Applicant's spouse. The delegate rejected the claims and specifically refers to the Applicant's spouse claim and concludes the following:-
“Having found that the applicant's separate claims regarding Albanian women do not validly come within the Convention of ‘membership of a particular social group’ I have noted her residual claim to fear harm based on the blood feud’ claims set out above in the assessment of her husband and son. For the reasons set out above, I have found that neither (the) husband or sons have well-founded fear, or a fear essentially or significantly based in the Convention regarding the blood feud. Accordingly I find that (the Applicant's spouse's) fear regarding ‘blood feud’ does [sic] amount to a fear within the grounds of the Refugee Convention.”
Presumably the delegate meant to say the fears regarding the blood feud do not amount to a fear within the grounds of the Refugee Convention.
On 28 March 2002, the Applicant, his spouse and son all applied for review of the delegate's decision to the Tribunal.
They lodged a joint application (Court Book page 146-150).
By letter dated 5 November 2003 addressed to the Applicant, the Tribunal invited the Applicants to attend a hearing then scheduled for 17 December 2003. Significantly, the letter refers to the application for review by all Applicants, and then states:-
“Please note that you must tell all persons named above about this letter and, if they wish, reply to the Tribunal for them.”
Further in the letter, the following appears:-
“We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.”
The letter then sets out the details of the hearing. A response dated 17 November 2003 was provided on behalf of the Applicants by the then solicitor, a Migration agent indicating that the Applicant wished to attend the hearing. It is noted the response only refers to the Applicant and requests an Albanian interpreter. A statutory declaration was provided to the Tribunal.
A hearing was conducted on 17 December 2003 and only the Applicant gave evidence. It is common ground that in response to a question from the Tribunal to the Applicant at the hearing as to whether his spouse would be giving any evidence, the Applicant stated that his spouse was at home. The Tribunal affirmed the delegate's decision in its decision dated 16 January 2004.
It is noteworthy that at the commencement of its decision, the Tribunal states the following:-
“The second and third named applicants arrived in Australia on 21 November 2001. On 12 December 2001 they joined the first named applicant's application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (the Act) making their own claims for protection.”

The Claims

As indicated earlier in the extracts from the applications, the Applicant husband and son claimed to fear persecution for reasons of membership of a particular social group, namely their family. The fear of persecution arose in the form of revenge attacks and the consequence of what is claimed to be a blood feud between their family and the X family. A claim that the blood feud began with the killing of an uncle of the Applicant husband in 1992 by the X family. In turn another uncle of the Applicant husband had killed a member of the X family in 1999. As a consequence of what the uncle had done, the Applicants now feared revenge attacks from the X family. The Applicant husband further claimed to fear persecution as a consequence of his parents’ political beliefs, being activists and communists prior to the breakdown of communism and the perceived political benefits attributed to himself and his family.
As indicated earlier, the Applicant's spouse based her claim on a fear as an unaccompanied woman in Albania who faced the risk described in her application and otherwise joined the husband's application.

The Tribunal Decision

The Tribunal accepted that the Applicants were citizens of Albania. It noted they had arrived in Australia on fraudulently obtained Italian passports which had been photo substituted. Subsequently copies were provided of Albanian passports in the names of the Applicants leading the Tribunal to accept that the Applicants are Albanian citizens.
The Tribunal then considered the claim made concerning the blood feud with the X family. It referred to country information concerning blood feuds and states:-
“On the basis of this information I accept that there is a long standing tradition of blood feuds in Albania and in particular in the northern parts of Albania. I find that the Albanian authorities have recognised the problems caused by blood feuds in their society and I also find that they have shown they are willing to take action to address these problems.
I accept that the applicants’ family is involved I a blood feud with the X family which started in October 1992 when the X family shot and killed the first named applicant's uncle and continued when the first-named applicant's other uncle shot and killed Mr X and his son in December 1999.
The first named and third named applicants have claimed that their fear of being killed by a member of X family if they return to Albania is covered by the Refugees Convention because it is a Convention ground which motivates the X family to want to kill them. That convention ground is expressed as being the applicants’ membership of a particular social group and the particular social group that the applicants claim they belong to is their family.”
The Tribunal after further considering the issue of blood feuds states:-
“Although the Tribunal is satisfied that in the Albanian context the applicants’ family can be considered to be a particular social group under the Convention, I find that the motivation of the X family to harm the first named and third named applicants or any other members of the applicants’ family is revenge for the murders committed by the uncle of the applicant in December 1999. Revenge for a criminal act, even one that may have been committed in error or by mistake, is not a reason for harm which comes under the Refugees Convention.”
Further in its decision in considering the Applicant's spouse claims, the Tribunal states:-
“The second named applicant has claimed that she fears that it is not safe for her to return to Albania without her husband because women who are not protected by their husbands in Albania risk being kidnapped and sold into prostitution. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed.”
Further in its findings, the Tribunal after referring to relevant principles and authorities, then states:-
“The second named applicant did not attend the Tribunal hearing and her husband, the first named applicant, did not advance any further information on these claims made by the second named applicant despite being given an opportunity to do so. In her application for a protection visa the second named applicant claimed that women do not have the same rights as men in Albania and cannot protect themselves. This was a very general and vague claim with no specific details provided as to why women do not have the same rights as men in Albania and as to why women are unable to protect themselves. If the second named applicant had attended the hearing I would have asked her to expand and clarify this claim but based on the limited, general and very vague information before me I find that this claim is not substantiated in any way.
The second named applicant has stated in her application that she could only leave the home of her parents in law for brief periods of time to go shopping and that she could not go outside of her community for fear of being kidnapped. If the second named applicant had attended the hearing I would have asked her why she could not go outside her community, why she could not leave the home of her parents in law for extended periods of time, which person or persons she feared would kidnap her and for what reasons. I would also have asked her why she feared she may be sold into prostitution and who she feared would do this. I would have also asked her why she feared her husband would not be able to protect her and why she feared her husband would not be with her in Albania. Based on the limited information before me I cannot be satisfied that any of these claims occurred and I find that the second named applicant was never impeded from going outside her home or outside her community and that she did not have any fear of being kidnapped.
I accept that in the context of Albanian society women are capable of constituting a particular social group and I find that the second named applicant is a member of the particular social group being women in Albania. However, based on the limited information before me I cannot be satisfied that the second named applicant would face a real chance of being persecuted because she is a member of a particular social group, that social group being a woman in Albania, or that she would be kidnapped or sold into prostitution if she were to return to Albania now or in the reasonably foreseeable future. I therefore find that if the second named applicant were to return to Albania now or in the reasonably foreseeable future there is no real chance that she would suffer serious harm that can be regarded as persecution as envisaged by section 91R of the Act.”

The Amended Application

In the amended application, the jurisdictional error asserted by the Applicants appears to be based upon the following four grounds which I note are summarised in the Applicant's contentions as follows:-
“1.The failure to process the applications made by the wife and son for a protection visa on 10 December 2001 at all;
2.The failure of the RRT to conduct the review so that it actually heard from the wife and child what their claims were;
3.The fact that when the MRT came to make its decision it was apparently under the misapprehension that it had enquired of the husband what claims for recognition as a refugee were made by the wife and child when in truth the husband had only given a response that concerned his own claims;
4.The RRT erred in the way it applied s91S of the Migration Act to conclude that any fear of the Applicants for persecution by the X family was a fear that was required to be disregarded.”

Grounds

Failure to process application by wife and son for visa

It was submitted by the Applicant that the applications made by his wife and child were valid applications required to be considered by the First Respondent and that those applications were not processed, and the duty imposed pursuant to ss.47(1) and 65(1) of the Migration Act 1958 (“the Act”) to consider the valid applications for visas and make a decision remains to be fulfilled.
The Respondent submitted that the applications by the Applicant's spouse and son were indeed considered and referred to the extracts in the Tribunal's decision set out earlier in this judgment.
It was also submitted that the Applicant's spouse was given the opportunity to attend the hearing and failed to do so. It was submitted that findings were made both on the Applicant's spouse's claims and the claims of the son.
In my view, the extracts set out earlier in this judgment clearly indicate that those claims were duly considered and findings were made which I regard as reasonably open to the Tribunal free of any error. Hence this ground fails.

Failure of the RRT to conduct the review so that it actually heard from the wife and child what their claims were

It was submitted on behalf of the Applicants that the RRT was required to conduct a review of all Applicants including the wife and the son. It was argued the Court should find that the Applicant was invited and that he alone was required to attend the RRT hearing. Whilst accepting the Tribunal is not required to "make the case" for an Applicant, it was argued that the response that the Applicant's wife was at home was insufficient and the Tribunal should have pursued whether the Applicant's wife was to give evidence.
The Respondent submitted that the spouse was given the opportunity to be heard and appear at the hearing. The Tribunal was then entitled to accept the response given by the Applicant to the question posed by the Tribunal. Further it was required to satisfy the requirements for giving notice of the hearing. No further reference was made to any claim by the spouse in the statutory declaration of the Applicant which was returned with the response to hearing form. The Tribunal is not required to then make out the spouse's case or make her give evidence.
In my view, this ground should also fail. I accept the submissions made for and on behalf of the Respondent that the obligations of the Tribunal have been discharged, both in the invitation to attend the hearing and for the spouse to be given the opportunity to attend and give evidence. It was not the obligation of the Tribunal to then compel any party to attend a hearing once the appropriate notice has been given as in the present case. I accept the submission for the Respondent that the Tribunal had no obligation other than to consider the claims made as they were presented, including the material presented at the hearing. I accept and apply the decision of Bennett J in SZALV v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1370 where the Court states the following:-
“12 In explanation, the appellant said that if he goes back to his country he will encounter many problems. He commented that other people from India had been accepted as refugees, that he was afraid to go back to India and that the Tribunal had not phoned India to try to find out more information about him. Much of this complaint relates to questions of fact. Factual findings are matters for the Tribunal and the findings of fact were available on the evidence. The Tribunal had no obligation other than to consider the claims made by the appellant, as presented. The Tribunal was not obliged to conduct its own investigation or to seek out evidence for itself from India (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (‘SGLB’).
…
25 The respondent submits that the appellant did not request the Tribunal to obtain evidence from a witness or seek further time to obtain evidence. In Re Ruddock; Ex parte S154 of 2002 (2003) 201 ALR 437 at [57] – [58] Gummow and Hayne JJ, with whom Gleeson CJ agreed, held that it was not for the Tribunal to cross-examine or press an applicant for additional evidence or further submissions. In SGLB at [1], [19], [43] and [124], Gleeson CJ and Gummow and Hayne JJ, with Callinan J reaching a similar conclusion, held that the provisions of the Migration Act do not impose upon the Tribunal a duty to inquire. I accept the respondent's submissions on this aspect. The Tribunal is under no obligation to make out the appellant's case. The appellant's claim that the appellant had such a duty is not supported by any principle of law. I can find no error on the part of the Tribunal in respect of this aspect.”

It should be noted that the Applicant sought to rely upon affidavits sworn by the Applicant and his spouse on 18 February 2005. The Applicant's affidavit annexed a transcript of the proceedings before the Tribunal and otherwise described the change of solicitors which had occurred. It is noted that the Tribunal and the interpreter were in Melbourne connected by video-link to the Applicant in Adelaide in relation to the non-attendance of the Applicant's wife after referring to the exchange where the Tribunal indicates, "So your wife won't be giving any evidence?" to which the Applicant answered, "She's at home," and stated that "no-one had said that she had to be there". He claims in his affidavit, "I did not think this was strange as I have had all the dealings with the Department of Immigration, and most of the dealings with solicitors and Migration Agents." He further states, "There is no reason why my wife could not have attended the hearing."
In her affidavit, the Applicant’s spouse referred to the appointment of the then Agent for and on behalf of the family who apparently prepared the papers on her behalf. She claims she did not attend the Tribunal hearing because the agent did not say she was required to attend, and further states that she is "aggrieved because the result is that I have never had the opportunity to state why I fear persecution in Albania.

I have never been interviewed". She further states in her affidavit the following:-
“If given the opportunity I would refer to material which describes the difficulty women of my age face in terms of education, employment and personal security in Albania and the inability or unwillingness of the Albanian authorities to do anything about this if they are not part of the problem.”
For reasons given earlier in this judgment, I accept the Respondent's submissions that the Applicant spouse was given the opportunity to attend the hearing, and I conclude that that opportunity is not devalued simply because of what might be described as inappropriate advice by the then Agent acting for and on behalf of the family. It should be noted in passing, however, that the affidavit material itself does not provide any greater detail which would otherwise support the claim of the Applicant's spouse, though it is accepted that questions from the Tribunal may have elicited further details.
I do not accept the assertion that the Applicant's spouse was not given the opportunity to appear at the hearing. Clearly correspondence and invitation provide that opportunity, and the opening remarks of the Tribunal clearly alert the Applicant and/or his advisers to the issue of whether the Applicant's wife would be attending the hearing. As indicated, I otherwise find this ground should fail.

Misapprehension of role of husband

As I understand it, the misapprehension in this case was that the husband was to address the claims of his spouse rather than how she was affected by the husband's claims. It was argued that there was a combined failure to treat the wife's application on its own to inquire as to why she was not present and believed that her interests were completely represented by her husband, and in doing so, the Tribunal did not address the claims as would have been put to it by the wife if she was present.
The Respondent submitted that in any event, the Applicant who did attend the hearing was invited to put anything in relation to his spouse's claim. So much was evident from the transcript, it is argued, where the following appears:-
“… Apart from the fear that you have for yourself and your son, are there any issues relating to your wife that you want to talk to me about?
INTERPRETER: Like what?
TRIBUNAL: I don't know. Do you think anything might happen to her in Albania?”
Whilst it is true that the Applicant then refers to the feud which had occupied a great deal of attention during the hearing and in the material, it is submitted by the Respondent, and I accept, that the Tribunal in that extract in the transcript has clearly invited the Applicant to make submissions specifically in relation to the application by his spouse.
I further accept the submission made by the Respondent that it is not for the Tribunal to prompt and stimulate an elaboration of the material (see Applicant M189/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1218).
In my view, whilst it is clear that the Applicant's spouse was not interviewed by the delegate, that does not of itself constitute the denial of natural justice in circumstances where I have found that an adequate opportunity was given to her to present material to the Tribunal, and that opportunity was not taken. The mere fact that she was not interviewed prior to the Tribunal hearing does not detract from my finding that there has been what I would describe as effectively an opportunity to be heard given by the Tribunal. Further as I have indicated, I am satisfied in any event that the Applicant himself was given the opportunity to raise any matter for and on behalf of his spouse and failed to do so. I do not think there is anything further of significance arising from the individual or family unit applications made by the Applicant's spouse in this matter. It is clear to me the Tribunal has properly regarded the application by the Applicant's spouse as a separate application, and has done so correctly.

Blood feud family social group section 91S

This ground was not vigorously pursued, and the Court accepts and applies in any event a decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v SVBB (2005) FCAFC 12 which I accept is a decision directly applicable to the present matter. I am not prepared to accept the decision is wrong. I otherwise accept the submissions made for and on behalf of the Respondent in relation to this issue as the fear of persecution would be held by the Applicant's uncle on the basis that he killed two male members of the X family in 1999. Section 91S(a) applies, and the Applicant's uncle's fear of persecution must be disregarded. This ground cannot succeed.

Conclusion

Accordingly, it follows that the application should be dismissed with costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 31 January 2006