Pemaj v Minister for Immigration and Multicultural Affairs

[2001] FCA 1658

FEDERAL COURT OF AUSTRALIA

Pemaj v Minister for Immigration & Multicultural Affairs [2001] FCA 1658

MIGRATION – protection visa – review of decision of Refugee Review Tribunal (“Tribunal”) – existence of blood feud – no issue of principle

Migration Act 1958 (Cth) s 476(1)(e), s 476(1)(f)

ENGJELL PEMAJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
S 78 OF 2001

GRAY, DOWSETT AND STONE JJ
21 DECEMBER 2001
SYDNEY (heard in Adelaide)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 78 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ENGJELL PEMAJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GRAY, DOWSETT AND STONE JJ
DATE OF ORDER:	21 DECEMBER 2001
WHERE MADE:	SYDNEY (heard in Adelaide)

THE COURT ORDERS THAT:

1.the appeal be dismissed; and

2.the appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 78 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ENGJELL PEMAJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	GRAY, DOWSETT AND STONE JJ
DATE:	21 DECEMBER 2001
PLACE:	SYDNEY (heard in Adelaide)

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1. On 3 March 2000, the Refugee Review Tribunal (“Tribunal”) affirmed the decision of a delegate of the respondent Minister refusing to grant a protection visa under the Migration Act 1958 (Cth) (“the Act”) to the appellant. This is an appeal from a decision of a judge of this Court dismissing an application for an order of review of the Tribunal’s decision.

   BACKGROUND

2. The following summary of the background to this proceeding is largely taken from the reasons for judgment of the learned primary judge. The appellant, a citizen of Albania, arrived in this country on 24 January 1998 as part of a group of seven musicians. His family (mother, father, sister and wife) remains in Albania.  On 7 May 1998, the appellant applied for a protection visa on the basis of events that took place in Albania after the appellant had left that country.

3. On 5 February 1998 the appellant’s father was involved in a road accident that resulted in the death of a motor-cyclist, Vehbi Beqi. Although the Albanian police determined that his father was not at fault, it is claimed that the Beqi family holds the appellant’s father responsible for the death and that this creates a blood debt that can only be satisfied by the appellant’s death. The appellant claimed that the Beqi family had told his family that they were targeting the appellant. The appellant further claimed that he could not look to the State for protection as the police rarely take action in relation to blood debts.

   THE TRIBUNAL’S DECISION

4. The Tribunal accepted that there are blood feuds arising under “Kanon” or “Kunan” law in Albania and that it is possible for a blood feud to arise as a result of a car accident in which someone is killed. The Tribunal did not accept the appellant’s claim that his family was involved in a blood feud.  It is important to understand the basis of the Tribunal’s reasoning here.

5. The Tribunal did not accept the appellant’s claim that, although the opposing family held his father responsible for the death of one of their family members, he was the prime target for the blood feud revenge. The Tribunal based this rejection on its conclusion, drawn from a consideration of a range of independent information concerning blood feud beliefs and practices in Albania, that any male member of the opposing family would be targeted. In addition the Tribunal considered it far fetched that the Beqi family would target a person known to be overseas and would communicate this to the appellant’s family. The Tribunal stated:

   “Given this concentration on the [appellant], and the implausibility of picking on someone overseas to target, the Tribunal has concluded that the [appellant] has fabricated the entire evidence about his family being involved in a blood feud. The Tribunal concludes that all the documents he has provided, from April 1998 until December 1999, are also fabrications designed to support his claim. As stated above the fact that they refer to the [appellant] being the target indicates to the Tribunal that there is not a genuine blood feud but that one has been fabricated to support the [appellant’s] desire to remain in Australia.” 

6. As the appellant’s claim to protection depended on the existence of a blood feud, the Tribunal held that he did not have a well-founded fear of persecution.

   THE APPEAL

7. The notice of appeal raises a number of grounds of appeal of which the appellant at the hearing of the appeal pressed only two. Those grounds are that the primary judge erred by failing to find that:

   1.the Tribunal wrongly imposed an evidentiary onus on the appellant; s 476(1)(e); and

   2. the Tribunal’s decision was affected by actual bias; s 476(1)(f).
   Both grounds of appeal focus on the Tribunal’s treatment of certain documents that were put in evidence by the appellant.

8. Counsel for the appellant, Mr Gibbons, submitted that the Tribunal had concluded that the documents were fabrications because it did not believe the appellant’s claims. In Mr Gibbon’s submission the Tribunal should have evaluated the authenticity of the documents independently of its assessment of the appellant’s credibility. He suggested, for instance that the Tribunal could have scrutinised the original documents or submitted them for assessment by experts.  In particular he stressed that the appellant had done all that he could do. To require more of him, it was submitted, was to impose an impermissible evidentiary onus on him. It was also submitted that the Tribunal’s rejection of the documents was so illogical as to indicate that the Tribunal was biased against the appellant in that it had a closed mind and had formed preliminary views that were incapable of alteration.

9. These submissions mistake the basis on which the Tribunal concluded that the documents were not authentic. The appellant interpreted the Tribunal as saying that because it did not believe him then the documents were also to be rejected. Possibly, this interpretation springs from the way in which the Tribunal has expressed itself. Having accepted that there are blood feuds in Albania the Tribunal then referred to aspects of the appellant’s case that caused it some concern:

   “Firstly and most importantly there appears in this case to be an emphasis on the [appellant] and a disregard of other more obvious targets such as his father. The Tribunal is not satisfied that if the [appellant’s] father was involved in a motor vehicle accident the [appellant] would become the prime target for revenge as claimed. The Tribunal’s view is that his father would be the one at risk.
   As a result the Tribunal does not accept that any of the documents provided by the [appellant] represent the truth of the situation. The emphasis [in those documents] is on the [appellant] whereas if there really was a blood feud then a male member of the opposing family would be nominated to kill any member of the [appellant’s] family as discussed in the country information below.” [emphasis added]

10. The phrase, “as a result” used by the Tribunal invites the interpretation that the appellant put on the Tribunal’s comments. However consideration of the Tribunal’s further comments suggests that the Tribunal was actually making a different point.  Following the comment quoted above the Tribunal referred to independent country information and quoted in its reasons some long extracts from newspaper reports and from a report prepared by the Department of Foreign Affairs and Trade. The Tribunal then made the following comment:

    “…it is clear in the Tribunal’s view that it is any male members of the opposing family who are targeted because of membership of the family group. However here it seems that it is not the [appellant’s] father who is the prime target but the [appellant]. … The Tribunal does not accept that this would be the case given the country information above.”

11. Given that conclusion, it would seem that the Tribunal rejected the appellant’s claims and the documentary evidence for the same reason, namely their inconsistency with the conclusion it had reached on the basis of the independent country information. It did not conclude that the documents were fabricated on a basis of an examination of the physical characteristics of the documents but because of their content. If this is correct then the appellant’s submissions in relation to both grounds of appeal cannot be sustained. At most they amount to a criticism of the weight that the Tribunal accorded to the independent country information on which it relied. This, however, is a matter that this Court has no jurisdiction to review irrespective of whether it would have come to the same conclusion had it had the carriage of fact finding in this matter.

12. For the above reasons the appeal must be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             21 December 2001

Counsel for the Appellant:	Mr J Gibbons
Solicitor for the Appellant:	McDonald Steed
Counsel for the Respondent:	Ms S Maharaj
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 November 2001
Date of Judgment:	21 December 2001