SZCMP v Minister for Immigration
[2006] FMCA 190
•10 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCMP & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 190 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming persecution in Albania due to a blood feud – no reviewable error found – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.420, 424 |
| Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379; 87 ALR 412 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 NAHI v Minister for Immigration [2004] FCAFC 10 Selvageria v Minister for Immigration (1994) 34 ALD 347 |
First Applicant: Second Applicant: | SZCMP SZCMQ |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG110 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 10 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 10 February 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Newman Mel Newman & Associates |
| Counsel for the Respondent: | Ms S Mason |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as the second respondent to the application.
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG110 of 2004
| SZCMP |
First Applicant
SZCMQ
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 22 December 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant and his wife protection visas. The applicants are from Albania and had made claims of persecution based upon fear of a blood feud. The relevant claims were made by the first applicant, the applicant husband, and any references in these reasons to “the applicant” are references to him. The relevant background facts are set out in the Minister’s written submissions. I adopt as background paragraphs 1-6 in those submissions as background:
On 3 April 2000 the applicants, being husband and wife who are citizens of Albania, arrived in Australia. On 5 December 2002 the applicant husband lodged an application for protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs ("Department") (Court Book (“CB”) 1 to 30), such application including his wife. The applicant husband set out claims in a separate statement attached to that document (CB 37 to 38).
On 6 February 2003, a delegate of the respondent refused the grant of a protection visa (CB 47 to 62). On 28 February 2003 the applicants applied for a review of the delegate’s decision by the RRT (CB 63 to 66).
On 14 October 2003 the applicants were invited to give evidence at a hearing of the RRT on 26 November 2003, and were informed by that invitation that the RRT was unable to make a decision in the applicants’ favour based on the material provided to date alone (CB 92 to 93). The applicants accepted that invitation (CB 94).
The RRT hearing took place on 6 November 2003 during which the applicants gave oral evidence (CB 104.2).
On 22 December 2003 the RRT handed down a decision made on 27 November 2003 affirming the decision of the delegate not to grant the applicant a protection visa (CB 100 to 118).
The RRT’s decision
The RRT:
a)Stated that as only the applicant husband made Convention related claims (the applicant wife relied on her membership of family group) and so the RRT’s decision referred to the applicant husband as “the applicant” (CB 104.3).
b)Accepted that applicant husband and the applicant wife were Albanian nationals whose religion is Muslim (CB 112.8).
c)Accepted that the applicant was a general supporter of the Democratic Party in Albania and accepted the qualification which was added by the applicant’s oral evidence at hearing that the applicant “was not in any way prominent and he was not heavily political.” (CB 113.5)
d)Was satisfied that from the extremely limited knowledge the applicant displayed of the Democratic Party that the applicant had not real involvement or interest in politics in Albania. (CB 113.6)
e)Was satisfied that by reason of the foregoing, and having had regard to independent country information, even if the applicant’s family had been persecuted during the Communist regime prior to 1992, the applicant did not have a well-founded fear of persecution under Communist rule now or in the foreseeable future (CB 113.8).
f)Accepted that the Albanian government had issued passports to the applicant husband and the applicant wife (twice) in 2001 without difficulty (CB 113.9). The RRT also applicant also had not claimed that his family remaining in Albania had suffered any harassment, detention, torture or abuse by any authorities because of his or their political opinion (CB 113.10).
g)Found that the applicant had not claimed to be wanted in Albania by the police or any other authorities for any reason whatsoever (including actual or imputed political opinion or otherwise) (CB 114.1).
h)Considered the applicant’s claim as to blood feuds in Albania (relating to the potential reprisals by the family of a doctor who had been shot by the applicant’s first cousin). Have regard to independent country information the RRT accepted that there had been an increase in such blood feuds. However the RRT accepted that whilst the doctor had been shot, he had not been killed. Moreover, the applicant had not left Albania for over two years after the shooting and did not claim that anything had happened to himself or the applicant wife during that time. (CB 114.3 to 114.7)
i)Accepted that the father and brothers of the applicant’s first cousin who had perpetrated the shooting had remained living in Albania (CB 114.10) and the applicant had not claimed that those persons (were more closely related to the shooter than was the applicant) had been attached, assaulted or killed during the 5.5 year period which ensued, or that they had felt the need to leave Albania in order to secure their safety. (CB 115.1)
j)Found that as the applicant claimed at hearing that a mediation process between the family of the doctor and the shooter’s family was ongoing in an effort to reach a “negotiated outcome” and having regard to those continued negotiations without any claimed hostilities, the RRT could not dismiss the possibility that effluxion of time would result in a positive outcome (CB 115.9 to 116.1).
k)Found itself unable to be satisfied that there was a real chance that the applicant would suffer serious harm amounting to persecution in the form of a blood feud attack at the time of the decision or in the reasonably foreseeable future having regard to the fact that he was not a member of the shooter’s immediate family, the doctor was shot but not killed and that more than five years had elapsed since the shooting during which there had not been any hostile action taken against the applicant (CB 116.1 to 116).
l)Found there to be an inconsistency between the applicant’s initial claims to have used a false passport to escape Albania because of his safety concerns in leaving the Country and his claim at hearing that false passports had been obtained in order to more easily facilitate entry to Australia (as they did not have to obtain Australian visas). The RRT accepted the applicant’s evidence given at hearing on this issue. (CB 116.4 to 116.6). Ultimately, the RRT found that the inconsistencies in relation to the applicant’s claims regarding passports went to his overall credibility and the credibility of his claims (CB 117.2).
m)Was satisfied, having considered numerous inconsistencies in the applicant’s evidence, that the applicant was fully conscious of the opportunity to apply for asylum once in Australia or shortly after his arrival hearing. The RRT was further satisfied that the intention of applying for a visa is inherent in the making of claims in the protection visa application (CB 117.4 to 117.10). The RRT considered that the failure to make the protection visa applications immediately, and instead doing so two years after arrival in Australia, was indicative of the applicant not possessing a well-founded fear of persecution in Albania (CB 117.3).
These proceedings began with a judicial review application filed on 15 January 2004. The applicants now rely upon an amended application filed on 6 July 2004. Mr Newman also filed written submissions on behalf of the applicants on 1 February 2006. The amended application is dealt with in the Minister’s written submissions in paragraphs 8 through to 23. I agree with and adopt those submissions for the purposes of this judgment:
The amended application seeks an appeal from the entire decision of the “Migration Review Tribunal” (by which it is presumed that the applicant means the Refugee Review Tribunal). By part “A” of the amended application the applicant merely seeks to agitate various factual aspects of his claim. By part “B” of the amended application the applicant claims the following grounds of review:
The Tribunal erred in the application of its jurisdiction by:
(a)reasoning that even though much time had passed and a negotiated settlement between the two families had not occurred, there remained the possibility of a settlement thus ignoring the true essence of a blood feud and an essential integer of the applicant’s claim. Moreover this reasoning also ignored the real chance test laid down in Chan.
(b)Being at a loss to understand that a blood feud need not necessarily be sparked by a death but can extend to serious harm.
(c)Ignoring its own research stating categorically that the authorities would provide not protection for someone the target of a blood feud. See McHugh J in A& B v MIEA (1997) 142 ALR 331*
The respondent submits that each of these grounds is, in essence, a particular of an overarching ground of review which merely seeks to agitate the merits of the RRT’s findings (in particular that relating to blood feuds). The exercise which the applicant seeks to entice the Court into is an impermissible one and no part of the function of the Court in dealing with an application for relief under s.39B of the Judiciary Act 1903 (Cth): see also NAHI v Minister for Immigration [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379; 87 ALR 412 at 420 per Mason CJ; and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 - 42.
Notwithstanding this, the respondent addresses the particulars specifically below.
Ground 1: The RRT ignored an integer of the applicants claim
The respondent firstly submits that the finding made by the RRT that a resolution may still take place was a finding open to it on the material before it, and moreso in light of the absence of claims by the applicant as to any hostility that had taken place between the families since the shooting. To the extent that the first ground makes complaint about the reasoning or logic of the RRT the respondent submits that there is no error manifest and the findings were open to be made.
Thereafter, it is erroneous and misconceived to allege that the RRT ignored an essential integer of the applicant’s claim. The blood feud was considered at length, as was the applicant’s evidence in relation to same. The mere fact that the applicant is displeased with the RRT’s conclusions does not constitute a failure to address and integer.
Similarly, it cannot be said that the RRT “ignored” the real chance test. The real chance test was considered throughout the RRT decision, explicitly so in relation to an assessment of the blood feud claims (CB 116.2 and 118.1).
There is no jurisdictional error demonstrated or present and the ground ought fail.
Ground 2: The RRT erred by failing to understand an aspect of blood feuds.
The essence of this claim is that the RRT erred by failing to understand that a blood feud can arise by reason of serious harm, though not necessarily murder.
The respondent submits that this error is not manifest from the Tribunal’s decision. The RRT did not make a finding that a blood feud cannot exist without a murder. Moreover, the independent country information available to the RRT on the topic suggested that the reprisals tended to be equal “and eye for an eye” and spoke only of murders (CB 110.3 to CB 112. 7). Notwithstanding that, the RRT did not make the finding it is alleged to have made.
Even if the RRT had, its findings were based upon independent country information and a reliance on such information does not constitute jurisdictional error even if its content is wrong. As was stated in NAHI v Minister for Immigration [2004] FCAFC 10 at [11]:
The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
There is no jurisdictional error manifest as alleged.
Ground 3: The RRT ignored its own country information
Again, this ground is simply not supported by the RRT decision.
The RRT was forthright about the information it had obtained regarding blood feuds. There were two items of information, one which was set out in the RRT’s decision (CB 110 to 112), and the other which was cited (CB 114.5). Both are included in full in the court book (CB 128 to 130 and CB 138 to 141).
Neither piece of information “categorically” states “that the authorities would provide no protection to someone the target of a blood feud.” Rather, the DFAT report extracted at CB 110 to 112 states that such protection would be unlikely because of resource implications. The US State Department report (CB 138 to 141) indicated that many killings are not reported as police custody/protection of alleged killers would hamper the attempts of families to seek revenge.
Overall however, such information was unnecessary and did not arise in the course of the RRT’s reasoning. This was because there were sufficient factors and circumstances, apparent from the applicant’s own evidence, to suggest that the likelihood of harm to the applicant was remote. Accordingly, and given the applicant’s peripheral relation to the shooter, it was open to the RRT to apply the real-chance test without recourse to questions of protection.
Accordingly Ground 3 cannot be made out and must fail.
In his oral submissions, Mr Newman took issue with a number of findings made by the presiding member, in particular first, the finding on page 116 of the court book, that because of a number of factors, including the relatively distant relationship between the applicant and the doctor who had been shot, the applicant appeared not to be at great risk; and secondly, the finding on page 118 of the court book, that the applicant’s delay in seeking protection in Australia counted against a well founded fear of persecution.
It was not obvious on the face of those submissions what the asserted jurisdictional error was. In exploring it in oral argument with Mr Newman he concluded that the asserted jurisdictional error is that there was no factual or reasoned basis for the conclusions reached by the RRT or, to put it another way, the findings made were not open on the material before the RRT. I cannot accept those submissions.
There was country information before the RRT that suggested that the relative primarily at risk would be the applicant’s father so long as he was alive (CB 111). Mr Newman compared that with other country information which was at least silent on that issue. However, the RRT is entitled to adopt the country information that it sees as relevant to its decision. The RRT was also entitled to take into account the applicant’s delay in seeking protection in Australia: Selvageria v Minister for Immigration (1994) 34 ALD 347.
In my view, the challenge to the RRT’s decision is in reality a challenge to the merits of that decision. It is not open to me to engage in merits review. It is, however, open to the Minister if she is so minded to consider substituting a more favourable decision. It is apparent on the face of the country information to which Mr Newman took me that the harm caused by blood feuds in Albania, particularly in the northern part of the country, is indeed serious and that if a real risk of harm persists, state protection cannot be expected.
To the extent that there is a significant possibility that the RRT may have reached the wrong conclusion on the risk of the applicant coming to harm there would be purpose in a reconsideration of the matter by the Minister. That is beyond the scope of these proceedings and I have no authority to influence the Minister’s decision.
I find that there is no jurisdictional error in the decision of the RRT. Accordingly, the decision is a privative clause decision and I must dismiss the application. I so order.
Costs should follow the event. The Minister seeks an order for costs fixed in the sum of $5,000. I accept that that is an appropriate party/party assessment. I will order that the applicants pay the Minister’s costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.
I will also order that the Refugee Review Tribunal be joined as the second respondent to the application.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 February 2006
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