SYXB v Refugee Review Tribunal

[2005] FCA 1153

FEDERAL COURT OF AUSTRALIA

SYXB v Refugee Review Tribunal [2005] FCA 1153

SYXB v REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SAD 93 of 2005

MANSFIELD J
5 AUGUST 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 93 OF 2005

BETWEEN:

SYXB
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

5 AUGUST 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay to the second respondent her costs of the application.

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	SAD 93 OF 2005

BETWEEN:

SYXB
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	MANSFIELD J
DATE:	5 AUGUST 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant is an Albanian citizen.  He is married to a Greek woman.  They have a child who is also a Greek citizen.  His parents and his two siblings also now live in Greece.  Subject to the matter mentioned below, there is no impediment to him returning to Greece and remaining there.  The applicant applied for a protection visa under the Migration Act 1958 (Cth) (the Act) after his arrival in Australia because he fears for his safety if he were to return to Albania. He also fears that, at present, he would be vulnerable to serious injury or death even if he were to return to Greece, because of its proximity to Albania and the capacity of certain Albanian authorities to extend their reach into Greece.

2. In substance, the applicant’s fear arises from his political opinions or his perceived political opinions.  He was a bodyguard of a member of parliament in Albania from 1995 and following the election in mid-1997 he was the bodyguard of that same man who became a government minister.  He remained in that position until October 1998.  The Refugee Review Tribunal (the Tribunal) was satisfied that there is very significant corruption in Albania.  In essence, the applicant's claim is that, by reason of his work as a bodyguard, he had acquired a lot of information of potential significant embarrassment to the Albanian authorities and they would act against him to suppress his capacity to expose it. 

3. The applicant left Albania for Greece in February 1999 and remained in Greece where he made his home until he came to Australia in June 2004.  His application for a protection visa was refused by a delegate of the Minister on 22 November 2004.  The Tribunal affirmed that decision by a decision handed down on 19 April 2005.  The applicant now seeks an order quashing the decision of the Tribunal.  The Court has power to do so only if the Tribunal has committed jurisdictional error:  Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2. It does not have power to set aside a decision of the Tribunal simply by re-deciding the facts on the merits. The applicant has indicated an understanding of the limited powers of the Court on such an application.

4. Before the Tribunal, the applicant gave evidence of some incidents which had occurred whilst he was in Albania.  He reported a shooting incident in May 1997 during a political rally.  Two bodyguards were then killed.  The applicant was not himself injured on that occasion.  In early 1998 a bomb blew off the front gates of the house which he was living in.  Later in that year he was shot in the leg by a gunman driving past in a car.  He was hospitalised for some months.  It was after his discharge from hospital that he moved to Greece, where he lived until June 2004 when he came to Australia.  He told the Tribunal that at the time he went to Greece he did not think he was being selected or targeted for violence because of his knowledge of corruption within the Albanian government.  Over time, however, he came to believe that that was the case. 

5. Whilst the applicant was in Greece, he reported being harassed by persons he considered to be Albanian agents.  He learnt of the murder of a former Albanian bodyguard who was then in Italy, and in 2003 a car which the applicant had the use of was itself burned.  Hence, at present, the applicant fears returning both to Albania and to Greece because of the threat of violence to himself from the Albanian authorities.  He claims that the Albanian authorities in the last several years have targeted those who have adverse information about the government which they might expose.

6. The Tribunal accepted most, if not all, of those claims of the events which the applicant had experienced.  What it did not accept is that those experiences of the applicant were the result of targeting by the Albanian authorities, for the reason he gave.  It said:

   ‘The Tribunal accepts that the applicant worked from 1995 until 1998 for a member of parliament and for the last year or so of that period his employer was a Cabinet Minister.  However, the applicant was only one of several bodyguards and by no stretch of the imagination can one envisage the applicant being in a position to learn such infamous secrets that he would be in mortal danger years after his departure from his job (as discussed above).  Indeed, he left without any concerns and lived for several years without thinking himself to be in danger.  His fears are based on speculation, random incidents and assertions; the death in Italy of a friend who did a similar job (although he has no details of the circumstances of his friend’s death); the burning of his car in 2003 (although the car was registered to someone else and the police said it was a criminal act); unsourced media reports that the Albanian authorities kill their enemies; and anonymous calls to his mobile phone threatening harm, which started about 18 months before he left Greece but which did not result in any actual harm, to himself or his family.

   The applicant has also encountered several incidents involving the authorities in Australia which he has construed as being part of a persecutory series of events instigated by the Albanian authorities or their agents.  His friend in Australia has also asserted that this is so.

   However, on all the evidence before it, the Tribunal is not satisfied that there is an objective basis for the applicant’s fears.  It accepts that he suffered harm in the past (the shooting incident of 1997; and the detonation of his gate and the gunshot wound in his leg in 1998) but considers that these incidents were random ones of the sort that occurred not infrequently to people working as bodyguards or otherwise close to officialdom in the turbulent Albania of the mid-1990s.  The Tribunal notes that the applicant considered these events in exactly the same light both at the time of their happening and up until a couple of years ago.  The Tribunal has looked at the independent evidence and noted the substantial changes that occurred in Albania since the applicant left in 1999, including the fact that the applicant no longer works as a bodyguard (a position which inherently entails some risk).  The Tribunal is satisfied that the chance that harm amounting to persecution will befall the applicant for a Convention reason in the reasonably foreseeable future is remote.

   In any case, the applicant has indicated both by word and deed that he is not returning to Albania.  He has not lived there since early 1999.  His home and his family are in Greece.  His fear about returning to Greece is simply that the harm he fears in relation to Albania – that he will be targeted by the authorities because he knows adverse things about them – can also befall him in Greece, given its proximity to Albania.  The Tribunal is satisfied that there is no real chance that the Albanian authorities will harm him, and therefore it follows that the chance that they will locate and harm in Greece is remote.’ 

   Consequently it concluded that the applicant does not have a well-founded fear of persecution for his imputed political beliefs (or his membership of a social group – the alternative way of identifying the cause of his fear) if he were to return to Albania or to Greece.  He did not therefore satisfy the criterion for the grant of a protection visa under s 36(2) of the Act.

7. As I have said, the Court can only set aside the Tribunal's judgment if it is infected with jurisdictional error.  The application of 13 May 2005 does not express, clearly, any grounds of jurisdictional error.  It asserts an excess of jurisdiction without particulars; a constructive failure to exercise jurisdiction without particulars; and the failure to accept the applicant's claim to be a refugee.  I have read the Tribunal's decision carefully.  I do not see any basis upon which those matters can be made out.  It has accurately recorded the applicable law.  It has recorded the applicant's claims and his evidence.  And it has made decisions about those claims in the proper context of the legislation. 

8. At the hearing, I pointed out to the applicant the limited role of the Court on the application.  I asked him to explain in what way he said the Tribunal made a mistake.  Initially he said that the Tribunal made no mistake, and that any mistake was at an earlier point in time when not all relevant information was put before the primary decision-maker.  Upon further questioning the applicant, he asserted that the Tribunal did not have all the documents before it which it might have had.  I have therefore considered whether the Tribunal failed to comply with the procedural obligations imposed upon it at law, including under Div 4 of Pt 7 of the Act. 

9. In my judgment, the Tribunal did not fail to comply with the procedural obligations which existed.  At material times, the applicant was assisted by and represented by a registered migration agent.  The Tribunal gave the applicant the opportunity to attend a hearing, which was first proposed for 10 February 2005.  Shortly before that hearing, the applicant's migration agent asked that it be adjourned because the applicant was endeavouring to procure further documents to support his claim.  They were identified as documents relating to his employment as a bodyguard and his hospitalisation following the gunshot wound.  The Tribunal agreed to that adjournment.  The hearing subsequently took place on 11 March 2005.  The applicant through his migration agent submitted further documents to the Tribunal prior to the hearing on 9 and 11 March 2005, including documents relating to those two topics.  He also submitted a detailed statutory declaration dated 8 March 2005.  Following the hearing, the applicant was given the further opportunity to submit material to the Tribunal and he did so on 21 March 2005 through his migration agent.  He also attended the hearing and gave evidence through an interpreter, and a witness who accompanied him also gave evidence to the Tribunal. 

10. In my judgment, there is nothing to indicate that the Tribunal failed to comply with any of the procedures imposed upon it by the Act, or that it failed to accord the applicant procedural fairness.  It has made a decision on the material before it which it could reasonably have made and in doing so has addressed the issues which the Act required it to address. 

11. Accordingly, I am not satisfied that the Tribunal's decision was the result of jurisdictional error on its part.  I must therefore dismiss the application.  I will order that the applicant pay to the second respondent costs of the application.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             22 August 2005

Counsel for the Applicant	The applicant appeared in person
Counsel for the Respondents:	K Bean
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	5 August 2005
Date of Judgment:	5 August 2005