SZABL v Minister for Immigration - [2003] FMCA 304

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZABL & ANOR v MINISTER FOR IMMIGRATION

[2003] FMCA 304

MIGRATION – Review of decision of the RRT – application for a protection visa – whether the applicants’ fear of revenge was a fear of persecution for a Convention reason – whether the applicants were members of a particular social group pursuant to s.91S – whether the Tribunal has to consider whether the applicants have effective protection – where applicants raised an argument which had not been raised at the Tribunal hearing – whether the Tribunal has a duty to consider claims not made by the applicant.

Migration Act 1958 (Cth), s.91S

Minister for Immigration v Khawar (2002) 187 ALR 574
SCAL v Minister for Immigration [2003] FCA 548
Minister for Immigrationv Sarrazola (1999) 166 ALR 641
Sarrazola No 2 (2001) 107 FCR 184

Applicant:

SZABL & ANOR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1177 of 2002

Delivered on:

25 July 2003

Delivered at:

Sydney

Hearing date:

17 July 2003

Judgment of:

Raphael FM

REPRESENTATION

Solicitors for the Applicant:

Yandell Wright Stell

Counsel for the Respondent:

Mr S Lloyd

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,250.00 in accordance with Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1177 of 2003

SZABL & ANOR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The two applicants in this case are brothers of Albanian nationality who arrived in Australia on 11 September 2000. On 25 October 2000 they lodged an application for protection (Class XA) visas. On 7 March 2001 a delegate of the Minister refused to grant protection visas and on 11 April 2001 the applicants applied for review of that decision. The review was carried out by the Refugee Review Tribunal following an interview with the applicants. The decision was made on 8 October 2002 and handed down on 29 October. The Tribunal, whilst expressing the view that the brothers had reasonable grounds for making a humanitarian claim as they may well face harm if they return to Albania, determined to affirm the decision not to grant protection visas.
The factual matrix from which the applicants’ claims arose was described by the Tribunal at [CB 62 to 67]. The family consisted of the mother, father, the two applicants and their sister, who in 1999 was aged sixteen. Late in that year the sister announced to her parents that she was in love with an older man. She said that she wished to marry him. The parents did not know the man but they knew of his family by ill repute. It was submitted that these persons were known within their home town as “mafiosi” or criminals with a network of connections. The father refused the daughter permission to marry this man. The daughter ran off with the man and no more was heard of her until in about February 2000 an unknown woman telephoned from Italy to advise the family that their daughter and her boyfriend were in Italy and the man was treating the daughter as a prostitute.
On receipt of this news the father sought out the family of the man. He had previously done this when his daughter announced her original intention to marry the man. His pleas to the family to return his daughter then went unheeded. This time he believed he had more cause to approach them as the family had a reputation for trafficking in women for sexual purposes. During the confrontation tempers became frayed and the applicants’ father was attacked by the man’s brother with a knife. The applicants’ father managed to turn the knife back upon the assailant who was seriously injured. The police were called and the applicants’ father was taken into custody whilst investigations were carried out. Whilst he was in custody the man’s brother died. The father was later released, his claim to have acted in self defence having been accepted.
Matters did not end here. The applicants’ family was advised that the dead man’s family had sworn revenge upon them. When the father was released from custody at the beginning of May 2000 the family split up. The two brothers travelled to Italy where they stayed with a cousin. At the end of May their house was burnt down and the story, including photographs, was reported in the Albanian newspapers on

25 May 2000. Shortly thereafter, Albanian’s came to the cousin’s house and began asking questions. The applicants considered it was not safe to remain there and they travelled to Belgium. They initially sought asylum in that country but their whereabouts were revealed to the family of the slain man and threats were made. They left Belgium to seek asylum in Australia. They entered Australia using false Italian passports. The applicants’ father is now said to be in another European country and their mother is also outside her home town. The applicants claim that if they return to Albania they will be the subject of serious harm and probably death from the family of the man whose death their father caused.
At [CB 68] the Tribunal says:
“I have no concerns of the credibility of either applicant. Their story was consistent at all stages of the refugee determination process, it was support by and consistent with independent evidence, and both applicants willingly answered any questions to the best of their ability. I am satisfied that they were honest and credible witnesses and I accept their testimony as it is set out above.”
The Tribunal dealt with the applicants’ claim for a protection visa fairly shortly. It accepted that they did not feel that they could rely on effective state protection as they believed that the rival family could circumvent or simply ignore the law. The Tribunal noted the independent country evidence concerning blood feuds and stated that whilst it wasn’t satisfied that the revenge sworn by the rival family against the applicants’ family came within the province of kanun, the traditional rules which dictated and regulated practices such as blood feuds in Albania, it accepted that what the applicants feared was revenge killing, whatever name it went by. At [CB 69] the Tribunal said:
“The applicants also agreed that the reason for the harm they fear is revenge for the harm inflicted by their father on the rival family. The applicants are afraid of unsanctioned, criminal actions of revenge carried out in the unforgiving spirit of “an eye for an eye, a tooth for a tooth”. They are not afraid of persecution on the grounds of their race, religion, nationality or political opinion. They are afraid as members of a particular social group – constituted by their father’s immediate family, or male line of succession – but this argument is excluded from consideration by s 91S of the Act.”
The Tribunal found that the father’s fear of persecution was his fear of a revenge killing which was not a convention reason and therefore his sons’ fears of persecution by reason of their membership of a particular social group (familial relationship) had to be disregarded.
The Tribunal also found that whilst the police might not be able to prevent the criminal family who had vowed to kill the applicant’s from carrying out their threat this did not constitute a lack of effective state protection as the Tribunal said:
“In those circumstances the applicants may indeed be in danger because the concept of state protection cannot be expected to extend to 24 hour protection indeterminately.”
The question of effective state protection only becomes relevant if the applicants are found to have been the subject of persecution for a convention reason. It is only then that their “well founded fear” had to be analysed and consideration of the availability of state protection given. If the Tribunal was correct in its finding that s 91S applied to these young men then the Tribunal did not have to take into account the availability or otherwise of state protection. These comments naturally exclude a claim of implied selective or discriminatory enforcement of the criminal law such as to amount to persecution by the state authorities as considered by the Federal Court in Minister for Immigration v Khawar (2002) 187 ALR 574 at 26-31 and 117-121.
In SCAL v Minister for Immigration [2003] FCA 548 von Doussa J recently considered a case very similar to the one presently before the court. His Honour, after considering the authorities, was satisfied that s 91S did exclude the family of persons who feared revenge killings notwithstanding that those family members were themselves likely to be killed. In that case at [23] His Honour also rejected an argument put forward by Counsel for these applicants that s 91S should be construed strictly as limited to cases such as that found in the Minister for Immigrationv Sarrazola (1999) 166 ALR 641.
It follows from the above that I would not be able to review the decision of the Tribunal on the basis of the argument that the Tribunal had not appropriately applied the law. But the applicants had an additional argument. This was that the Tribunal did not consider whether or not the applicants had a well founded fear of persecution for convention reasons arising out of the knowledge that they had about the deceased’s family’s criminal activity, which they might have used to inform upon that family to the police. The problem with this argument is that the matter was not raised in the Tribunal. Mr Young, who appeared on behalf of the applicants, says that this was not necessary and that the Tribunal had a duty to consider it which was found in the decision of the court in Sarrazola No 2 (2001) 107 FCR 184 where at [42] Merkel J says:
“If I am wrong in that view then the RRT in the present case must have erred in any event in failing to address whether, on the material and evidence before it, the relevant social group was the families held responsible for the obligations of persons alleged to owe outstanding debts or obligations to underworld groups in Colombia. The fact that the respondent’s claim was not put by the claimant in that way does not necessarily relieve the RRT, as an inquisitorial body, from the duty of addressing it: see Paramananthan v Minister for Immigration (1998) 94 FCR 28 at 62-63; Satheeskumar v Minister for Immigration [1999] FCA 1285 at [15]; Sellamuthu v Minister for Immigration (1999) 90 FCR 287 at 293; Chen v Minister for Immigration (2000) 106 FCR 157 at 180 [114] and Giraldo at [58]-[59].” [Emphasis added]
I do not think this is a claim which can be validly made in this instance. The Tribunal accepted all the facts and submissions upon them put forward by the applicants. They claimed to have a fear of a revenge killing. They did not claim to have a fear of retribution from their knowledge of the deceased’s family’s criminal activities. The Tribunal may be under a duty to consider all ways in which a party may apply for asylum on the basis of a given set of facts, but it is not obliged to find new facts as constituted by new grounds of fear when those fears have not been expressed. If the applicants had raised these concerns and the Tribunal had not taken them into consideration then it may well be that a case for review would have been made out. But that is not what happened.
In the circumstances I am unable to review this decision of the Tribunal. In dismissing the application I would repeat for the benefit of the Minister the concerns raised by the Tribunal of a humanitarian nature. It would seem to be accepted that these young men would be in considerable danger if they were obliged to return to Albania. I order that the applicants pay the respondent’s costs which I assess in the sum of $4,250.00 in accordance with Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: