MZZVF v Minister for Immigration

[2014] FCCA 2641

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZVF v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2641

Catchwords:
MIGRATION – Application for judicial review – whether applicant had a right to enter and reside in another country – whether failure to consider claim of fear of persecution under Kanun law – limited to information put before the Tribunal – whether a threat can constitute ‘significant harm’?

Legislation:

Migration Act 1958 (Cth), ss.36, 85, 424, 424A.

Abebe v Commonwealth (1999) 197 CLR 510
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
AZACT v Minister for Immigration and Border Protection [2014] FCA 70
BVB v Victims of Crime Assistance Tribunal [2010] VSC 57
Dhanoa v Minister for Immigration & Anor [2009] FMCA 383
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
MZZES v Minister for Immigration & Anor [2014] FCCA 758
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407
SZHQC v Minister for Immigration & Anor [2006] FMCA 1275
SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145
SZRJH & Anor v Minister for Immigration & Anor [2012] FMCA 798
SZROQ v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 833
SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559
VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703

Applicant: MZZVF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1854 of 2013

Judgment of: Judge F. Turner

Hearing date: 2 September 2014

Date of Last Submission: 2 September 2014

Delivered at: Melbourne

Delivered on: 20 November 2014

REPRESENTATION

Counsel for the Applicant: Mr Albert

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the First Respondent: Mr Hill

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application for judicial review filed 1 November 2013 and amended application filed 19 February 2014 are dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1854 of 2013

MZZVF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 2 October 2013.

2. The applicant, who claims to be a citizen of Albania, applied to the Department of Immigration & Border Protection for a Protection (Class XA) visa on 14 March 2013 (Court Book “CB” p.2). The delegate refused a visa on 15 August 2013. The applicant then applied to the Tribunal for a review of that decision (CB p.170).

3. The grounds of the application for judicial review of the decision of the Tribunal are set out in the Amended Application filed 19 February 2014 as follows:

   (1)The Second Respondent erred by assessing whether the Applicant could seek protection in Italy in relation to the credibility of the Applicant, instead of applying the relevant legislative test set out in s 36(3)-(5A) of the Migration Act 1958 (Cth).

   (2)The Second Respondent erred by failing to fulfill its obligations under s 424A of the Act or otherwise denied the Applicant procedural fairness in that the Applicant was not given any opportunity to respond to information that the Member relied upon to make a negative credibility determination, namely the small number of Albanian-speakers in Italy, which figure was from a source which post-dates the last contact between the Tribunal and the Applicant.

   (3)The Second Respondent erred by failing to consider an integer of the Applicant’s claim, namely that he had been threatened with death by the M… family, such threat being sufficient to independently amount to ‘significant harm’ as defined in the Act.

4. The grounds in the original application filed on 1 November 2013, were deleted.

5. The application for judicial review was listed for final hearing on

   
   

   25 March 2014. On 11 March 2014 orders were made by consent vacating the hearing on 25 March 2014 and adjourning the matter for directions on a date to be advised, following the outcome of proceedings Plaintiff S297-2013 v Minister for Immigration and Border Protection in the High Court. The decision in that matter was delivered on 20 June 2014 (Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24). That decision held that the Minister did not have power under s.85 of the Migration Act 1958 (the “Act”) to limit the number of protection visa’s that may be granted in a specific financial year.

6. The applicant filed and served written submissions on 19 February 2014; the first respondent filed and served Contentions of Fact and Law on 11 March 2014.

7. At the hearing before this Court on 2 September 2014 the applicant was represented by Mr Albert of Counsel and the first respondent by Mr Hill of Counsel.

8. The Court invited submissions from the parties as to the relevance of the decision in PlaintiffS297-2013 to the current matter. It was submitted that if the regulation that led to PlaintiffS297-2013 had been valid, the decision would have had implications here. As the regulation has been disallowed, the decision is not relevant, and the hearing proceeded.

9. Mr Albert submits that the incident at the centre of the application occurred on 29 August 2012, when the applicant and friends went to a nature reserve in Shkodër, Albania for lunch (Transcript ‘T’ p.3, l.2).

10. There, the applicant and his friend came across two members of the M family and a fight broke out. As a result they were all taken into custody by the police. After they were released the next day, two members of the M family were shot and killed in their car by people on a motorbike; Their house was burnt down on the same day. The applicant and his friends were named as suspects of the murders. The applicant told the Tribunal that a short time later a person came to his parent’s home with a pistol. The applicant heard a shot and later noticed a mark on his car door. The applicant fled Albania on 3 November 2012 and arrived in Italy, where he stayed for two months. He left Italy for Australia in mid-2013.

Ground One

1. Mr Albert submits that the applicant did not claim protection in Italy because he feared persecution by the large Albanian population there. Mr Albert submits that the Tribunal erred in applying s.36(3) of the Act in part only, in the guise of a credibility assessment. The ground alleges a failure to apply the test in sub-ss.36(3) to (5A) of the Act. Those subsections provide as follow:

   (3)Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

   (4)However, subsection (3) does not apply in relation to a country in respect of which:

   (a)the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

   (b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

   (5)Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:

   (a)the country will return the non-citizen to another country; and

   (b)the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

   (5A)  Also, subsection (3) does not apply in relation to a country if:

   (a)the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

   (b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

2. Mr Albert objects to a credibility assessment being made by the Tribunal on the basis of the applicant’s explanation for not seeking protection in Italy.

3. Mr Albert referred to Regulation EU No.1091/2010 of the European Parliament and of the Council (the “EU Regulations”).

4. Mr Albert then posed questions which he submits the Tribunal should have asked itself in making an assessment under s.36 (T p.9, l.7).

5. Mr Albert referred to a delegates reasons in another matter when making an assessment under s.36(3) (CB p.158).

6. Mr Hill submits that the Tribunal did not need to consider s.36(3) unless the applicant satisfied one or more of the protection criteria in s.36(2); As the Tribunal found that the applicant did not satisfy those criteria, there was no requirement for it to consider s.36(3). Therefore, there was no reason to consider sub-ss.36(4), (5) and (5A). The Court accepts that submission.

7. Mr Hill referred to the decision in SZRJH & Anor v Minister for Immigration & Anor [2012] FMCA 798 at [12] that the Tribunal “… considered it unnecessary to have regard to the application of s.36(3) as it was satisfied (for the purposes of s.36(2)) that Australia owed no protection obligations to the applicant under the Refugees Convention.”

8. Mr Hill referred then to the decision of the Full Court in SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43 where the majority held at [25]:

   “The correct approach is, therefore, for the decision-maker to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed by s 36(2). If the answer to that question is in the affirmative it is necessary for the decision-maker then to turn to s 36(3) and determine whether or not the applicant is a person to whom that sub-section applies. If it does not, the “gateway”, created by s 36(2) to the granting of a visa remains open and there is no occasion to consider whether one or more of the qualifications to s 36(3) applies. If s 36(3) is found to apply, the decision-maker must then determine whether one or more of the qualifications contained in sub-sections (4), (5) and (5A), which ensure that Australia’s international obligations under the Refugee Convention are met, limit the operation of s 36(3) and keep the “gateway” open.”

Consideration of Ground One

1. The Court finds that consideration of whether the applicant could seek protection in Italy comes within the purview of s.36(3). The Tribunal therefore did not ask itself the wrong question by asking the applicant why he “did not seek the protection of Italian authorities” (CB p.205.9).

2. Mr Albert complains that the Tribunal made no reference to

   
   

   sub–ss.36(4), (5) and (5A). Mr Albert complains that the Tribunal made no enquiry about whether the applicant could reside in Italy. Mr Albert then poses questions that the Tribunal might have asked. The Court finds that, on the basis of the evidence given by the applicant that “he had previously lived in Italy for many years in a number of places…” and “that there are many Albanians there and that they can travel there visa free” (CB p.205.9), it was open to the Tribunal to consider the applicant’s ability to enter and reside in Italy, whether temporarily or permanently.

3. The Tribunal set out its reasons for rejecting the applicant’s explanation for not seeking protection in Italy and for not finding the explanation credible (CB p.205.10)

4. In W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R D Nicholson JJ stated at [64]:

   “The tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 ; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:

   If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

   See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.”

5. The Court does not find that the Tribunal has failed to use, or has palpably misused, its advantage or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable, or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.

6. The Court refers to the following decisions:

   ·Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407 per McHugh J at [67]:

   “If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”

   The Tribunal’s conclusion that the applicant was not credible and his claims untrue are findings open to the primary decision-maker par excellence (Ibid).

   ·So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pp.558 to 559 and W148/00A (supra) at [64]-[69].

   ·The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272.

   ·Abebe v Commonwealth (1999) 197 CLR 510 at [137]:

   “… there is no error of law… in making a wrong finding of fact…”.

7. The Court finds no error in law in the Tribunal making an assessment of credibility when examining any of the evidence given by the applicant.

8. The complaint here is that the Tribunal should have detailed its consideration of sub-ss.36(4), (5) and (5A). However, as a result of rejecting the explanation for the applicant not seeking protection in Italy, the Tribunal was not required to set out a more detailed consideration of s.36 than what appears at CB p.205 [35].

9. The EU Regulation (supra) was not put before the Tribunal (T p.7, l.6) and is of no relevance here.

10. An applicant for judicial review is confined to material put before the Tribunal as referred to in SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 per McKerracher J at [27]:

    “An appeal from the Tribunal to the Federal Magistrates Court or an appeal to this Court is limited to review of jurisdictional error. Fresh evidence is not admissible unless it bears on some jurisdictional error. In MZXHY v Minister for Immigration and Citizenship [2007] FCA 622, Nicholson J stated at [8]:

    It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 380 determined the question of ‘... whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision’. At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ‘... are only on questions of law’. His Honour further held at 382 that the Court had no power to receive the fresh evidence: see also at 385. Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos 56 FCR 377 in a migration law framework.”

11. In any event, sub-regulation (3) to the EU Regulations stated in relation to Albania, Bosnia, and Herzegovina, that “Visa liberalisation should apply only to holders of biometric passports issued by each of those two countries”. No details were given as to whether the applicant held a biometric passport. Indeed Mr Albert submitted that the sub-regulation would only have to be looked at if the matter were remitted to the Tribunal (T p.7, l.35).

12. The Court sees no relevance in the sub-regulation except to the find that visa liberation occurred for some Albanians. Mr Albert submits that the regulation places a 90 day time limit in Italy on visas from Albania. The Court finds that to be a “right to enter and reside in temporarily”. The Court finds that the Tribunal applied s.36(3), and because of the evidence that it rejected, it was not required to set out its considerations of sub–ss.36(4), (5) and (5A) in detail.

13. The Court rejects the submission that a failure to follow the reasoning process of a delegate in another matter, when considering s.36(3), shows an error of law here. The relevant factors in the s.36(3) analysis in this case are set out in the second dot point on CB p.205 [35].

14. Mr Albert complains that the Tribunal did not obtain further information about the applicant’s ability to stay in Italy.

15. There is no positive obligation on the Tribunal to obtain further information: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43].

16. Whilst s.424 of the Act provides that the Tribunal may get any information that it considers relevant in conducting the review, there is no obligations on the Tribunal to do so. As stated in SZHQC v Minister for Immigration & Anor [2006] FMCA 1275 at [33]:

    “The Tribunal has the power to obtain further information… it does not have a duty to investigate the Applicant’s claims.”

1. In Dhanoa v Minister for Immigration & Anor [2009] FMCA 383, Driver FM (as he then was) stated at [34]:

   In SZIAI Flick J held that there may be circumstances in which a failure on the part of the Tribunal to make enquiries, or further enquiries, on a matter would amount to jurisdictional error. Such circumstances will be rare.  At [25]-[26] his Honour said:

   “The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155. Wilcox J there observed at 169–70:

   ... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ...

   This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 at 197–8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed:

   [214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker’s failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.

   The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be “strictly limited”: Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant’s case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50], [2002] FCAFC 369; 127 FCR 24 at 40–1 per Gray, North and Mansfield JJ.

   Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an applicant and facts within his power to adduce: eg, Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13. In refugee cases, reference may also be made to the comparative difficulty in some circumstances confronted by an applicant seeking refugee status and the comparative ability of decision-makers to elicit further information: cf Taylor S, Informational Deficiencies Affecting Refugee Status Determination: Sources and Solutions (1994) 13 U Tas LR 43. And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual -- an administrative decision-making process which impacts upon an individual’s freedom or a claimed ability to live in freedom may warrant more extensive inquiries being undertaken than one, for example, where the imposition of a modest pecuniary penalty is under consideration.”

2. Mr Albert agrees that the Tribunal was not required to consider both sub-ss.36(2) and (3), but submits that the consideration under sub-s.(3) was partial only. As found above, the Tribunal having found that Australia did not owe protection obligations to the applicant under s.36(2)(a), it was not required to consider s.36(3). Therefore if it gave only partial consideration to s.36(3), there was no failure to exercise its jurisdiction. It was not required to consider s.36(3), and therefore it did not fail to consider a matter that the Act required it to consider.

3. The Court refers to the following decision:

   ·Failure to take a relevant consideration into account can only be made out where the Tribunal failed to take into account a consideration which it is bound under the Act to consider: see Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24.

4. Mr Albert argues that the decision in AZACT v Minister for Immigration and Border Protection [2014] FCA 70 is distinguishable from the present case. The Court finds that the decision is not determinative in this matter.

5. Mr Albert seeks to put a different interpretation on s.424A(3)(a) than that decided in the cases referred to (supra). The submission that a different interpretation should be applied because the country information is not about the country from which the applicant is seeking protection, is rejected. The Court does not accept that the factor changes the interpretation that the Full Court stated “has authoritatively and finally determined the true construction of
   s 424A(3)(a).” (QAAC of 2004 (post) at [26])

6. Mr Albert submits that the decision in SZROQ (supra) was a decision on the facts in that case and is not of assistance here. The Court finds the statement of law therein to be of relevance here.

7. Mr Albert objects to reliance on the decision in MZZES (post) as it is currently subject to appeal. The Court finds that it represents the current law.

8. Ground one is dismissed.

Ground Two

1. Mr Albert submits that there was a breach of s.424A of the Act as the applicant was not given an opportunity to respond to information that the Tribunal relied on to make a negative credibility determination. Mr Albert submits that the information as to the small number of Albanian speakers in Italy (CB p.204 [30]) was obtained by the Tribunal after the last contact between the Tribunal and the applicant.

2. Section 424A provides:

   Information and invitation given in writing by Tribunal

   (1) Subject to subsections (2A) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear 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 the consequences of it being relied on in affirming the decision that is under review; and

   (c)invite the applicant to comment on or respond to 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.

   (2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

   (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 for review; or

   (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)non-disclosable information.

3. Mr Albert submits that county information is not covered by s.424(3)(a) because the applicant is not a member of the “Class of Albanian speakers in Italy”, as he speaks Italian. The Court accepts the submissions of Mr Hill on this issue (post).

4. Mr Albert’s second objection is that the applicant’s claim “was not concerned with Italy, and that his claim was concerned with Albanians in Albania” (T p.12, l.18).

5. Mr Albert submits that statistics about Albanian speakers in Italy are “not a good proxy (sic) for determining the risk of harm in Italy” (T p.12, l.33).

6. Mr Albert submits that the decision in VHAP (post) is distinguishable because the information relied on here “is information concerning a country from which the protection claim does not arise” (T p.41, l.13) and therefore it is not information that the applicant should know of. The Court does not accept that the factual distinction changes the interpretation in VHAP; The Court applies the reasoning in VHAP.

7. Mr Hill submits that the country information about the number of Albanian speakers in Italy is excluded under s.424(3)(a). Mr Hill submits that there is nothing in sub-s.(3) which says that the Tribunal can only have regard to country information about the country in respect of which the person makes refugee claims.

8. Mr Hill referred to footnote 8 on page 7 of the first respondent’s Contentions of Fact and Law as follows:

   “The reference to the class of persons in s 424A(3)(a) is not another criterion to be met, but rather underlines the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it: VHAP of 2002 v Minister for Immigration (2004) 80 ALD 559 at [14] (Gyles and Conti JJ), [21] (Allsop J); QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [12] (Lander J with Dowsett and Hely JJ agreeing).”

9. Mr Hill submits that the material referred to by Mr Albert and referenced at CB p.204 [30], is country information that comes within s.424A(3)(a). Mr Hill addresses Mr Albert’s argument that the applicant’s claim is not about Italy, as it is concerned with Albanians in Albania. Mr Hill submits, and the Court accepts, that the distinction is irrelevant as there is nothing in ss.36 or 424A which says that the Tribunal can have regard only to country information about the country in respect of which the applicant makes refugee claims.

10. As stated in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13]:

    “Both the choice and the assessment of the weight of… (country information)… were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”

11. Mr Hill referred to the decision in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at [12]-[14] as follows:

    12. The information which would fall within s 424A(1) in this case does not expressly refer to, and is not expressly about, the appellant (or any other relevant person). In other words it is not specifically about the appellant unless it is regarded as being about every person who may fall into a class which is the subject of the information. Section 424A(3) provides, so far as is relevant:

    (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 …

    13. It is argued for the appellant that this prescribes two criteria that must be met, namely, that the information:

    (1) is not specifically about the applicant; and

    (2) is just about a class of persons

    It is submitted that the information in question was general in nature, covering more than one class of persons, and so did not satisfy the second criterion.

    14. In our opinion that argument must be rejected. The reference to the class of persons in s 424A(3)(a) is not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it. This construction of the subsection is consistent with the decisions in NANM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99; ; BC200302451 at [17] and VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 ; 75 ALD 609 at [50] per Kenny J and [71] per Downes J with which we agree. The opinion of Ryan and Finkelstein JJ on this point in NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494 ; 78 ALD 482 at [30]–[31] seems to be contrary to those authorities (while seeking to distinguish them) but, in any event, would not affect the conclusion of Finkelstein J in this case even if correct.

12. Mr Hill referred to the decision in QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [11]-[12], [22] and [26] of the judgment of Lander J, and adopted per curium, as follows:

    (11) The primary judge construed s 424A(3)(a) as meaning that the RRT was not under an obligation to provide country information to the appellant and the applicants which was not specifically about them or another person. He concluded that the effect of s 424A was that that meant there was no requirement upon the RRT in complying with its obligation of natural justice to bring the information to the attention of the appellant and the applicants.

    (12) In doing so, he followed a decision of the Full Court in this Court in VHAP of 2002 v Minister of Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 (‘VHAP of 2002’) which rejected a construction of the Act contended for in that case that the words ‘just about a class of persons of which the applicant or other person is a member’ is another criterion of exemption. In that decision the Full Court held that those words were designed to underline the specificity required by precluding any argument that any reference to a class would be taken as a reference to all individuals falling within it.

    …

    (22) The decision in VHAP of 2002 has been followed by another Full Court which arrived at the same construction: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 (‘NAMW’). After a consideration of the section, the members of that Full Court independently reached the same view as the members of the Full Court in VHAP of 2002. A further Full Court in WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 (‘WAJW’), as recently as December 2004, was invited to conclude that the decisions in VHAP of 2002 and NAMW were wrong and should not be followed. That Full Court declined to do so.

    …

    (26) In my opinion, this Court has authoritatively and finally determined the true construction of s 424A(3)(a).

13. Mr Hill referred to the decision in SZROQ v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 833 at [29] as follows:

    “As to Ground 3, by reason of s 424A(3) of the Migration Act, the Tribunal had no obligation to provide to the appellant particulars of the country information, as it is not information specific to the appellant.”

Consideration of Ground Two

1. The Court finds that the information about the number of Albanian speakers in Italy is not specifically about the applicant and therefore s.424A(1) does not apply to it [s.424A(3)(a)].

2. The Court applies the decisions referred to by Mr Hill. A breach of s.424A has not been established.

3. The Court finds that country information as to the number of Albanian speakers in Italy is relevant to an assessment of the applicant’s claims under s.36(3).

4. The Tribunal does not commit jurisdictional error when it prefers one body of country information over another: see NAHI (supra) at [13]-[14] and VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 at [26].

5. The fact that an applicant does not accept that those statistics are a good way to determine the risk of harm in Italy, does not mean that the Tribunal cannot rely on the information.

6. As stated in NAHI (supra) at [13]:

   “Both the choice and the assessment of the weight of… (country information)… were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”

7. The Court finds that country information about Albanian speakers in Italy is covered by the exclusion in s.424A(3)(a).

8. The Court finds that the reference to a “class of persons” in s.424A(3)(a) is not another criterion to be met VHAP (supra).

9. Ground two is dismissed.

Ground Three

1. This ground alleges a failure by the Tribunal to consider an integer of the applicant’s claim that the applicant had been threatened with death by the M family, which is sufficient to amount to “significant harm” under the complementary protection provisions in s.36(2)(aa) of the Act. Section 36(2) and (2A) provide as follows:

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa; or

   (c)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa.

   (2A) A non-citizen will suffer significant harm if:

   (a)the non-citizen will be arbitrarily deprived of his or her life; or

   (b)the death penalty will be carried out on the non-citizen; or

   (c)the non-citizen will be subjected to torture; or

   (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)the non-citizen will be subjected to degrading treatment or punishment.

2. Mr Albert submits that the Tribunal made no finding in relation to the alleged threat.

3. Mr Hill referred to the finding at CB p.205 [35] that the Tribunal did not accept that the applicant was targeted by the M family or anyone else. The Court finds that the Tribunal considered that integer of the claims and made a finding about it.

4. The Tribunal did not accept that the applicant was involved in an incident in November 2012 where he was targeted and shot at by a man on a motorbike (CB p.206 [36]).

5. The Tribunal found that the applicant did not claim that he was targeted by the M family on any other occasion, despite living in the area for two months after the death of two members of the M family

   
   

   (CB p206.2); and did not accept that the M family intended to harm him (CB p.206.2). Those findings were open to the Tribunal and are not amenable to review. The Tribunal is entitled to accept or reject evidence.

6. As stated by the Federal Court of Australia in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:

   “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

Consideration of Ground Three

1. The Court finds that the Tribunal dealt with the claim that the applicant had been threatened with death by the M family. At CB p.206.2 the Tribunal did not accept that members of the M family have “targeted” the applicant or “intend to harm him if he were to return to Albania”. Mr Albert referred to the decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47] which deals with a failure to deal with a claim. Here the claim was identified (at CB p.206.2). The Court finds that there was no failure to deal with the claim of threats to kill (referred to here as “intend to harm him”).

2. Mr Albert referred to Annexure ‘DN–1’ to the Affidavit of Dushan Nikolic filed 19 February 2014 (being the transcript of the hearing before the Tribunal at p.10), and to the statement: “But as far as I have heard they have said they will kill us all” (as Transcript l.207). Mr Albert referred to CB p.159 and the delegate’s statement that “The applicant claims he is scared of the victims’ family as they stated they would pay someone to kill him”. As found (supra), the Tribunal dealt with the claim and did not accept that the M family intended to harm the applicant (CB p.206.2). The Court accepts that a threat to kill can be a threat of harm.

3. As stated by the Federal Court of Australia in Lee (supra) at [27]:

   “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

4. Mr Albert referred to the transcript in Annexure ‘DN–2’ (Ibid) which repeats the statement that the applicant “has heard that they have said that they will pay someone to kill the boys”. The Court is satisfied that a threat to kill can amount to “significant harm” as defined in s.36(2A).

5. Mr Albert referred to the decision of Judge O’Dwyer in MZZES v Minister for Immigration & Anor [2014] FCCA 758. At [23] his Honour referred to:

   “… examples of how International Courts, applying the same International Conventions, are supportive of the proposition that certain threats alone can amount to cruel or inhumane treatment… but that it must be “sufficiently real and immediate.”

6. In the present case, the Tribunal did not accept that the M family “intend(ed) to harm him”. Here, therefore, there was no threat that was “sufficiently real or immediate”, as the Tribunal found that the M family “did not intend to harm him”, and a threat was not made directly to the applicant.

7. The findings of Justice Cavanagh in BVB v Victims of Crime Assistance Tribunal [2010] VSC 57 at [34] have no relevance here.

8. The Tribunal not having accepted that the M family intended to harm the applicant, means that there was no basis for a genuine belief by the applicant that a threat was “capable, and likely, in the mind of the [applicant] to be implemented” (MZZES at [26]). “A threat, in itself, constitutes significant harm, but only in particular circumstances could a threat be caught by the statutory description” (Ibid at [29]).

9. The Court finds that in order for a matter to come within MZZES, it must first be found that a threat was made – that was not found here. The Tribunal did not accept that the M family targeted the applicant (CB p.205.5 and 206.2).

10. The Tribunal found also that the fact that the applicant did not seek protection from the Italian authorities, detracts substantially from the credibility of the applicant’s claims to have been targeted and shot at by members of the M family. The Tribunal set out its reasons for not accepting the applicant’s responses (CB p.205 [35]). Those findings are not amenable to review.

11. Mr Hill submits, and the Court accepts, that there is no claim or evidence that a threat was made directly to the applicant. The Court finds that there is no evidence of a threat that was “sufficiently real and immediate” to amount to “significant harm” as defined in s.36(2A).

12. Mr Albert submits that it is of no significance that the applicant was told of a threat, instead of being made directly to him. The Court finds that the distinction is of relevance to the issues raised in MZZES (supra) because that raises a specific circumstance that may remove it from being covered by the principles in MZZES.

13. The Court finds that the Tribunal dealt with the claim.

14. Ground three is dismissed.

15. The application for judicial review is dismissed.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate: 

Date: 20 November 2014