MZWFO v Minister for Immigration
[2005] FMCA 790
•9 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWFO v MINISTER FOR IMMIGRATION | [2005] FMCA 790 |
| MIGRATION – Review of decision of Refugee Review Tribunal – inconsistencies and lack of credibility – past events – no real chance of persecution for a convention reason – no jurisdictional error. |
| Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Ethnic Affairs v Guo WeiRong (1997) 191 CLR 559 |
| Applicant: | MZWFO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 426 of 2004 |
| Judgment of: | Hartnett FM |
| Hearing date: | 26 April 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 9 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Lesley Simons & Associates |
| Counsel for the Respondent: | Mr C.J. Horan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDER
The application is dismissed.
The applicant pay the respondent's costs fixed in the sum of $6000.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 the Court certifies that it was reasonable for the parties to employ an advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 426 of 2004
| MZWFO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application under s.39B of the Judiciary Act 1903 (Cth) and s.475A of the Migration Act 1958 (Cth) (the Act) for writs of prohibition and certiorari, and for a declaration in relation to a decision of the Refugee Review Tribunal (the tribunal) affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The tribunal's decision purports to be a privative clause decision within the meaning of s.474(2) of the Act. The application was filed on 26 April 2004.
The applicant is a citizen of Albania. She entered Australia on 13 April 2002 as the holder of a subclass 686 Visitor visa valid until 13 July 2002. She travelled on a passport issued in her own name.
On 28 May 2002 the applicant lodged an application for a protection (class XA) visa with the respondent's department. On 26 July 2002 the applicant attended an interview with a delegate of the respondent in relation to her visa application. She was assisted at that interview by an Albanian language interpreter.
On 9 August 2002 the delegate refused her visa application, and on 26 August 2002 the applicant sought review of that decision by the tribunal. The applicant attended a hearing before the tribunal on
13 February 2004 at which she gave evidence with the assistance of an interpreter. Her legal adviser was present throughout the hearing. A post-hearing written submission was prepared and forwarded by her legal adviser on 20 February 2004. By a decision made 27 February 2004 and handed down on 19 March 2004, the tribunal affirmed the delegate's decision.
The source of power for granting or refusing a protection visa is s.65 of the Act. Sub-section 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom:
the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
Article 1A(2) of the Convention defines a refugee as any person who:
owing to well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
The tribunal hearing
The tribunal had before it the Department's file which included the protection visa application and the delegate's decision record. The tribunal also had regard to the material referred to in the delegate's decision, and other material being country information available to it from a range of sources. The tribunal set out the applicant's claims and an analysis of the documents placed before it by the applicant's adviser. The applicant's claims included the following:
a)in 1990 the democratic era came to Albania and in 1991 she became a member of the Democratic Party;
b)that she was an active member of the Democratic Party and had taken part in demonstrations and meetings and that she had been elected at a meeting for her branch;
c)during the elections of 26 June 2001 she was participating in the electoral commission as a member of the Democratic Party. A man called Xhevdet Verdha, a member of the Socialist Party, came to her home on the evening before and told her that she had to vote for the Socialist Party and if not he would kill her;
d)that the first time Verdha had threatened to kill her was in 2001 and not during the 1997 election campaign as stated in her application for a protection visa;
e)that at around 11 o'clock at night on the night before the June 2001 elections there were gunshots outside her front yard;
f)that her husband reported the gunshot attack to the local police station the following morning but the police did not bother to follow the matter up. The applicant claimed that her husband also reported it to the main station in Pogradec but that they also did nothing;
g)that following the gunshot incident the applicant was too scared to go out and the whole family was not going outside at all even to work;
h)That although the applicant was fearful that someone would kill her son nothing had happened to her son nor husband in Albania but that they stayed inside because they were scared. The applicant then stated that they did get out of the house but that they did not go anywhere. The applicant then confirmed that her son would attend a then forthcoming rally on 20 February 2004 and that he was now active in the Democratic Party. The applicant was asked to explain the contradiction between her earlier evidence that her son was scared to leave the family home and did not go out much, with his participation in regular rallies and demonstrations around Albania.
During the course of the tribunal hearing and as referred to in the reasons of the tribunal, the applicant: appeared not prepared to answer the direct questions of the tribunal; made contradictory claims; made no comment on country information which contradicted claims made by her when offered the opportunity to do so; was asked to clarify claims she had earlier made which contradicted evidence given during the course of the tribunal hearing for example, she was told that her claim about events in 2001 and relating to her younger son sounded almost identical to the claims she had earlier made in her application for a protection visa in relation to her older son and that she had not raised this claim in relation to her youngest son at any earlier point before or during the hearing; and was advised that the tribunal had serious credibility issues about many of her claims.
The applicant was asked as referred to in the reasons:
What she feared would happen to her if she were to return to Albania now or in the foreseeable future. The applicant responded by claiming that she was scared that if she went back something might happen and her life would end. When asked why she feared something would happen the applicant stated that they would kill her. When asked who would kill her, the applicant stated that the people who did not like her would kill her. When asked who did not like her, the applicant stated that it was Xhevdet Verdha. When asked why he would want to kill her, the applicant stated that it was because of what he said and the shooting that happened because the shooting was directly related to what he had said to her. When asked how she knew that the shooting was related and not something that was totally unrelated, the applicant paused for a long time and then sat in silence refusing to answer the question put to her. When asked again, the applicant stated that she had told the tribunal that he came to threaten her and that no-one else had any reason to do it.
When asked if she could relocate to another part of Albania to avoid the harm she feared from Xhevdet Verdha, the applicant stated that they are all socialists in Albania and if they find you they will kill you. The applicant also stated that it does not matter when, because if he wants to he will kill you.
When asked to comment to country information that indicated that there was no systematic persecution or killings of Democratic Party members by either the Albanian Government or by members of the Socialist Party the applicant stated that they would kill and if someone comes to your home they will kill you. The applicant also stated why was it that her neighbour's door was not shot at, but her door was. When asked to comment on country information that indicated a more stable and inclusive period of government in Albania with the Socialist Party and the Democratic Party working together on important issues such as the election of a new President, the applicant stated that many people were still not satisfied with the current government and were trying to escape…
Refugee Review Tribunal decision
At the commencement of the decision the tribunal set out the four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve "serious harm" to the applicant and systematic and discriminatory conduct. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition, although the persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared (s.91R(1)(a) of the Act). Fourth, an applicant's fear of persecution for a Convention reason must be a "well‑founded" fear. The tribunal member then concluded under the heading of Definition of “Refugee”:
Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
The tribunal correctly stated the applicable principles. It is not disputed between the parties that not only must the principles be correctly stated but in the body of the reasons they must be seen to be correctly applied.
RRT reasons
Whilst the RRT accepted that the applicant had a limited involvement with the Democratic Party in Albania and that she had received insults in her village immediately after the election in 2001 from supporters of the victorious party, it rejected most of her claims including her central claim that in Albania she had been threatened with death by a man called Xhevdet Verdha unless she had voted in the 2001 election for the Socialist Party and that Mr Verdha had also fired a gun outside the door of her home on the night before that election. The tribunal said:
I find that the applicant has deliberately altered the dates in this respect in order to assist her in presenting her case in the best possible light at the hearing which creates significant issues in relation to the credibility of the applicant's evidence in relation to this claim.
At the start of the hearing the applicant appeared determined to recite a version of events to the tribunal in a systematic manner that appeared predetermined and rehearsed, and was unwilling to answer questions put to her by the tribunal by ignoring any questions asked and instead choosing to continue to recite her version of events in sequential order until the tribunal took significant steps to highlight to the applicant the need to provide responsive answers to the questions asked by the tribunal.
I find that the evidence the applicant gave in relation to the threats received from Xhevdet Verdha prior to the casting of ballots either in 1997 or 2001 or after the casting of ballots in 2001 lack any credibility whatsoever. I therefore find that the applicant was never threatened, as alleged, by Xhevdet Verdha either in 1997 or in 2001 and I further find that Xhevdet Verdha has never threatened to kill, harassed or coerced the applicant in any way.
And further:
... Although I accept that the applicant's front door may have been shot by gunfire as claimed, I find that such gunshots were not in any way related to Xhevdet Verdha or otherwise politically motivated.
The tribunal found that although the applicant may have received insults from supporters of the victorious political party after elections, the nature of such insults, taunts accusations and even threats did not in any way indicate the sort of serious harm required to amount to persecution for the purposes of the refugees Convention. The tribunal found that the applicant's son and husband did not have any real fears of harm from the Socialist Party and were not confined to staying in their home as had been claimed by the applicant. Further:
Based on the significant inconsistencies and the lack of credibility of the applicant's evidence in relation to this claim -
the tribunal found that the applicant's youngest son was never attacked by police during a Democratic Party rally as claimed by her and that he did not suffer the injuries as claimed by her.
Consideration
The applicant contends that the decision of the tribunal was affected by one jurisdictional error in that it misunderstood or misinterpreted the Convention definition and/or applied the wrong test as to the existence of a well‑founded fear of persecution on the grounds of political opinion in finding that because the applicant had not suffered any harm in the past and/or her claims of past persecution of her or other family members were not accepted therefore there was not a real chance she would be persecuted on return to Albania.
That submission that the applicant's fear of persecution was well founded was determined solely upon a consideration of past events, is put forward in the context of two passages from the tribunal’s reasons.
Those two passages of reasoning are as follows:
I have already found that the applicant has not been harmed by Xhevdet Verdha or by supporters of the Socialist Party in the past in Albania. I have found that the applicant has not suffered any harm for her political beliefs in Albania since the fall of the Communist regime that would be considered serious harm that would amount to persecution for the purposes of the Convention. I have also found that her husband and youngest son are not in fear of their lives and are not afraid to leave their home as claimed by the applicant. I therefore now find that the (sic) if she were to return to Albania today or in the reasonably foreseeable future there is not a real chance that the applicant would be killed, harassed, harmed or otherwise persecuted for her political beliefs or for any other Convention related reason.
Thereafter:
I have considered the submission ... in relation to any possible harm the applicant may suffer in future elections in Albania as she is determined to continue campaigning for the Democratic Party ... I have already found that the applicant had not suffered any harm in the past in Albania because of her membership of and active involvement in the Democratic Party. I therefore find that there is not a real chance that the applicant would suffer any harm if she were to return to Albania and campaign for the Democratic Party generally or at election time in particular.
The applicant argues that in the above two passages the tribunal has committed jurisdictional error in that it has wrongly reached a determination on the ultimate question solely on the basis of the absence of past persecution.
The argument is one of a construction of the tribunal's reasons. The applicant in the proceedings before the tribunal relied on her history of past events as alleged by her to establish that she would suffer future persecution upon her return to Albania. It was essential for the tribunal to look to those past events and a matter for the tribunal as to what credibility it attached to the applicant's factual scenario.
It was legitimate for the tribunal to look to the past history of the applicant in determining the question as to the future. Findings of past alleged events were critical to the determination of whether the applicant would suffer future persecution. Whilst the tribunal's findings as to such past events were important, they were not determinative of the outcome of the proceedings.
The tribunal looked at country information available to it which was contemporaneous with its decision. It considered such country information and put it to the applicant and pointed to inconsistencies between the country information and the history as provided by the applicant and asked the applicant for her explanation.
The tribunal canvassed with the applicant the country information about the situation for the Democratic Party in Albania and its current relationship with the Socialist Party. It canvassed with the applicant, as indicated above, those matters which she claimed to fear were she to return to Albania. It recited in its reasons what the applicant claimed would happen to her now or in the reasonable foreseeable future.
The tribunal canvassed with the applicant the possibility of relocation upon her return to Albania. The tribunal considered the applicant's claim as to whether she would be harmed or killed by Xhevdet Verdha "today or in the reasonable foreseeable future".
Upon a fair and not selective reading of the tribunal’s reasons as a whole, the tribunal clearly discharged its obligation to consider the applicant's case in relation to the reasonably foreseeable future (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh, Gummow JJ at 271-272; per Kirby J at 291). In particular the tribunal member said:
I have considered the submission of the applicant's adviser in relation to any possible harm the applicant may suffer in future elections in Albania as she is determined to continue campaigning for the Democratic Party. The Democratic Party is a legal entity in Albania, is recognised as the leading opposition party in Parliament and by the applicant's own admission continues to freely stage regular demonstrations in many Albanian cities against the current government (USA Department of State country reports on human rights practices for 2003, Albania, February 2004). I have already found that the applicant had not suffered harm in the past in Albania because of her membership of and active involvement in the Democratic Party. I therefore find that there is not a real chance that the applicant would suffer any harm if she were to return to Albania and campaign for the Democratic Party generally or at election time in particular.
Further:
Based on all the above, I find that if the applicant were to return to Albania today or in the reasonably foreseeable future there is not a real chance that she would be persecuted for her political belief or for any other Convention related reasons. I find that the applicant's fears are not well founded.
It was open to the tribunal in the course of its fact‑finding and on the material before it to conclude that the claims made by the applicant were lacking in credibility and that Mr Verdha had not threatened the applicant and not shot a gun as the applicant had claimed. In view of its rejection of those claims it was open to the tribunal to determine that there was no reason to suggest the applicant would in the reasonably foreseeable future be harmed or killed by that individual.
The tribunal in this matter did nothing more than make findings about past events and then use those findings as a basis for its conclusion that there was no chance of future persecution of the applicant:
…what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events ... (Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 574-575, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
The application is dismissed and the applicant shall pay the respondent's costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 9 June 2005
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