SZCWF v Minister for Immigration - [2007] FMCA 444

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCWF v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 444

MIGRATION – Persecution – review of Refugee Review Tribunal decision – particular social group – group too large to be distinguishable from general Albanian population – meaning of “particular social group” – common fear of persecution insufficient – Migration Act s.91S – operation of section – visa – protection visa.

Migration Act 1958, ss.91S, 91X

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 400
Applicant A v Minister for Immigration & Ethnic Affairs (1996-1997) 190 CLR 225
SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 301
STCB v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 556
Minister for Immigration & Multicultural Affairs v Sarrazola (No. 2) (2005) 107 FCR 184

Applicant:

SZCWF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3265 of 2006

Judgment of:

Cameron FM

Hearing date:

28 February 2007

Date of Last Submission:

28 February 2007

Delivered at:

Sydney

Delivered on:

5 April 2007

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Ms S.A. Sirtes

Solicitor for the Respondents:

Sparke Helmore

ORDERS

A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 29 September 2006.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated

13 December 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3265 of 2006

SZCWF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application dated 9 November 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) dated

29 September 2006 which affirmed an earlier decision of the delegate of the first respondent (“Minister”) dated 13 December 2001 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
The Tribunal decision the subject of these proceedings is the second decision of the Tribunal on the applicant’s claim for a protection visa. The first decision was set aside by order of this Court (Court Book (“CB”) page 105).

Background facts

The Tribunal described the applicant as follows:
… [the applicant] was born in Fief Albania in 1971 and lived in Lac. He claims that he left school at 14, worked on farms, served in the army for 18 months in 1991-92 and then worked on his family’s land after that. (CB 138)
The applicant claims to fear future persecution in Albania because of his membership of a particular social group, namely “citizens of Albania who are subject to customary law of Code of Lek Dukagjini or “Kanun” and on the basis that his family is Catholic.
The facts alleged in support of the applicant’s claim for a protection visa are set out in the Tribunal’s decision at CB 138-142. Relevantly, they are in summary:
a)the applicant’s brother died on 14 August 1998. The brother had worked in a club or hotel with a friend (Arian) but was not aware that Arian was in a dispute with the Haka family, who claimed that “Arian had taken one of their women to Italy and sold her into prostitution”. The applicant claims that on 14 August 1998 his brother was sitting with Arian when Ilir Haka killed them both;
b)two respected community leaders asked the applicant’s father several times to forgive the killing of the applicant’s brother but the applicant’s father did not and on 3 March 2000 without the knowledge of the rest of the family, the applicant’s father went to the Haka home intent on killing Ilir and shot him and two other Haka family members dead and was killed himself;
c)the applicant claims “the tradition is that out of respect for the death of members of the rival family we must stay inside” and if they left the house they could be killed;
d)the applicant claims that there are two other Haka sons remaining and they are from a large and aggressive Muslim family with whom they were previously acquainted but were not particularly friendly as the applicant’s family is Christian;
e)after the killing of the three Haka family members and the death of the applicant’s father, one of the applicant’s other brothers went to Greece illegally;
f)another of the applicant’s brothers went to stay with relatives in Albania for several months but planned to go to America;
g)the applicant went to stay with relatives in Tirana and Shokoder and rotated between them as he did not want to stay in one place for too long to avoid being found by the Haka family.

The Tribunal’s decision and reasons

After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal accepted that Albanians have a feudal customary law code (the “Kanun”). However, the Tribunal:
i)found that groups comprising ‘Albanian citizens who are subject to customary law and/or the Code of Lek Dukangjini and/or the Kanun’ do not meet the requirements for a particular social group under the Convention;
ii)rejected the idea that attempts to reconcile the two families failed because of their different religions;
iii)found that the applicant is a member of the social group made up of his family;
iv)was satisfied that the motivation for any hostile action that may in the future be directed at the applicant by the other family would be an act of revenge against his father’s family for the murders committed by the applicant’s father. The applicant’s fear is a fear of being a victim of a revenge killing, motivated by a non-Convention reason – the killing of three members of the other family. Therefore, s.91S of the Act applies and prevents the applicant from coming within the scope of the Convention;
v)did not find that the applicant would be persecuted in Albania because of his Catholicism.

Proceedings in this Court

The grounds of the application can be summarised as follows:
a)the Tribunal failed to take into account a relevant consideration namely, that the applicant could have and did have a well-founded fear of being persecuted for reason of religion without being a member of a social group;
b)the Tribunal took into account an irrelevant consideration namely, the religious composition of Albania and the generally amicable relationship amongst religions there while failing to give proper consideration to the applicant’s claim to have a well-founded fear of persecution by reason of his religion;
c)the Tribunal erred in finding that a person subject to the rules or law of Kanun could not be a member of a social group;
d)the Tribunal took into account an irrelevant consideration namely the absence of evidence to suggest that Muslim and Christians were unable to reconcile when a Kanun had been proclaimed for their religion.
At the hearing in this Court the applicant further submitted:
a)that the Albanian state could not protect him; and
b)the Albanian government is persecuting him.
Dealing with each of these grounds in turn:

The Tribunal failed to take into account a relevant consideration namely, that the applicant could have and did have a well-founded fear of being persecuted for reason of religion without being a member of a social group

The Tribunal’s discussion of the refugee test, found at CB 136-138 indicates that the Tribunal understood that “the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion” (CB 137). The Tribunal thereby demonstrated that persecution by reason of the applicant’s religion could satisfy the test and that it was not necessary that it be coupled with a finding that the applicant was also a member of a particular social group and, presumably, persecuted by reason of his membership of that particular social group.
Indeed, the Tribunal’s consideration of the applicant’s claim to fear persecution by reason of his religion demonstrates that this was viewed as a discrete issue and did not depend on the applicant’s membership of a social group. This was seen in the Tribunal’s exposition of the applicant’s claims at CB 146:
The applicant essentially claims that he fears persecution in Albania based on his Catholic religion and his particular social group, being a member of an Albanian family involved in a blood feud, at first described as his “family”, and then as “Citizens of Albania who are subject to customary law of Code of Lek Dukagjini or the ‘Kanun’”. The applicant also made claims on the grounds of religion on the basis that his family was Catholic and the majority of the population in Albania was Muslim. He claims to T2 that because his family is Christian and the Haka family, the family he fears will exact revenge against him because of the proclamation of a Kanun, is Muslim.
The Tribunal’s consideration of the question of whether the applicant had a well-founded fear of persecution by reason of his religion demonstrates that this issue was not confused with his membership of a social group:
… The applicant claims that he fears harm because he is Catholic. He claims his family had bad relations with the Haka Muslim family and, because of their religion, he is sure that if he goes back that Muslim family will take revenge on him.
I accept the independent information … that the generally amicable relationship among religions in society contributed to religious freedom in Albania. Society is largely secular. Intermarriage among members of different religions is extremely common. Religious communities take pride in the tolerance and understanding that prevail among them.
… Whilst the independent evidence reports that police nationwide used excessive force or inhumane treatment and that most mistreatment took place at the time of arrest or initial detention, the independent evidence does not suggest that Catholic Albanians suffer harm from the police, rather Roma and members of the Egyptian community were particularly vulnerable to police abuse. …
I accept that the Albanian legal system is criticised for its inefficiency and corruption. But the independent evidence before me does not suggest that persons are denied access to the legal system or the police for their Catholic religion. Whilst the judiciary suffers from corruption and inefficiency, it affects all residents. Human rights groups report on issues affecting the Albanian population. (CB 151)
The Tribunal approached its task correctly recognising that the applicant could have a well-founded fear of being persecuted for reason of religion without being a member of a particular social group. However, in the circumstances, it found that any such fear was not well-founded.

The Tribunal took into account an irrelevant consideration namely, the religious composition of Albania and the generally amicable relationship amongst religions there while failing to give proper consideration to the applicant’s claim to have a well-founded fear of persecution by reason of his religion

The applicant says that the religious composition of Albania and the relationships between religions in Albania was an irrelevant consideration in the context of his claim. It is difficult to understand how this could be given that the applicant claims to fear persecution, in part, on the basis of his Christianity, in particular his Catholicism. As the Tribunal recounted at CB 139:
At a hearing before the previous Tribunal (T1) the applicant stated his family had bad relations with the Muslim family and because of their religion they would take revenge on him.
The Tribunal’s consideration of the issue of the relations between different religious communities in Albania has to be seen in this context. In that context, consideration of the question did not represent the taking into account of an irrelevant consideration.
To the extent that this ground asserts the Tribunal should not have taken independent country information into account in considering this issue, the Full Court of the Federal Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] discussed the Tribunal’s role as a finder of fact, saying that there can be no objection in principle to the Tribunal relying on country information.
As to that part of this asserted ground of review which claims that the Tribunal did not give proper consideration to the applicant’s claim that it had a well-founded fear of persecution by reason of his religion, a consideration of the Tribunal’s decision demonstrates that this allegation has no basis in fact as has been discussed above in paragraphs 12 and 13.

The Tribunal erred in finding that a person subject to the rules or law of Kanun could not be a member of a social group

This ground is, in reality, based on two assertions. First, the people who fear a particular form of persecution can form a social group by reason of that persecution and, secondly, the large size of the group does not prevent it from being a particular social group.
The Tribunal found:
Nor do I accept that “citizens of Albania who are subject to customary feudal law” suffer harm for their membership of this group. Their fear of harm is because of what a family member has done and not for the membership of the group. Their group does not possess characteristics that distinguish it from society at large. In the case of people involved in a blood feud in Albania there is no evidence that they share common beliefs, concerns, interests or gaols [sic] and the like. Their only common trait is that they fear being harmed by a member of another family. (CB 147)
The three steps in determining whether a group is a “particular social group” for the purposes of Art. 1A(2) of the Convention were described in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR by Gleeson CJ, Gummow and Kirby JJ at 400 [36] as follows:
… First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.
Dealing with the applicant’s second assertion first, the Tribunal did not find that the simple fact that the asserted group was large necessarily prevented it from being a particular social group. Rather, in the circumstances of this claim the size of the group in question was such that it could not be distinguished from the remainder of the Albanian population except on the basis of its fear of persecution. The criterion applied by the Tribunal in determining the existence of a particular social group was not the group’s size but whether it was a distinguishable group. The identification of the group as a particular social group requires it to have characteristics which distinguish it from the rest of the population and no such characteristics were demonstrated to the Tribunal’s satisfaction other than a common fear of Kanun. As Dawson J said in Applicant A v Minister for Immigration & Ethnic Affairs (1996-1997) 190 CLR 225 at 241:
A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be a separate part of society at large. That is to say, not only must such persons exhibit some common element: the element must unite them those who share it are a cognisable group within their society.
Or as Gummow J expressed it in the same appeal at 285:
However, numerous individuals with similar characteristics or aspirations in my view do not comprise a particular social group of which they are members. I agree with the statement in Ram:
“There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted by reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of the persecutors so that it is a fitting use of language to say that it is ‘for reasons of’ his membership of that group.”
Returning to the applicant’s first assertion under this ground, a fear of persecution shared by a number of people does not transform them into a particular social group. In the context of China’s one child policy and a claim by an applicant to be a member of a particular social group which was ultimately identified as “those who having only one child do not accept the limitations placed on them or who are coerced or forced into being sterilised …” (Applicant A’s case per Dawson J at 239), it was held that the characteristic or element which unites the group claiming to be a particular social group cannot be a common fear of persecution (per Dawson J at 242).
As McHugh J put it in Applicant A’s case at 263:
…persons who seek to fall within the definition of “refugee” in Part 1A(2) of the Convention must demonstrate that the form of persecution that they fear is not a defining characteristic of the “particular social group” of which they claim membership. If it were otherwise, Part 1A(2) would be rendered illogical and nonsensical. It would mean that persons who had a well-founded fear of persecution were members of a particular social group because they feared persecution. The only persecution that is relevant is persecution for reasons of membership of a group which means that the group must exist independently of, and not be defined by, the persecution.
His Honour also said in a comment of particular relevance to these proceedings:
There is simply a disparate collection of couples throughout China who want to have more than one child contrary to the one child policy. Some may wish to have a child as soon as possible; some in the near future, and others in the distant future. There is no social attribute or characteristic linking the couples, nothing external that would allow them to be perceived as a particular social group for Convention purposes. To classify such couples as “a particular social group” is to create an artificial construct that bears no resemblance to a social group as that term is ordinarily understood. Indeed it is hard to see how such couples are even a group for demographic purposes. (emphasis in original) (page 270)
In SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 301, the fact situation was very similar to the one seen in these proceedings. In respect of that claim, the Full Court of the Federal Court said, relevantly:
… it is unrealistic to accept that the appellant fears persecution because of his membership of a group which adheres to a system of customary law which regulates many aspects of their lives and has a system of punishment for persecutory acts. Plainly he fears persecution either because of his membership of his family or because of a fear of reprisal because his father killed a member of the Laca family. Cf Skenderaj v Secretary of State for the Home Department [2004] 4 All ER 555 at 567-568. If he did not belong to that family, or if his father had not killed the intruder, he would have no fear of persecution. …

What the Tribunal did on this occasion was to hold that the social group of which the applicant was a member was his own family. However, it concluded that the operation of s.91S of the Act had the effect that, because the applicant’s fear of persecution was related to fear of revenge flowing from his father’s murders of members of the Haka family, s.91S operated to prevent the applicant from coming within the scope of the Convention. Section 91S provides:
For the purposes of the application of this Act and the regulations to a particular person (the first person ), in determining whether the first person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person's family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b)disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
The section is composed of a number of elements. The first of these is that the persecution the applicant fears arises out of his or her membership of a particular social group consisting of his or her family. Secondly, a person in that family has been persecuted or fears persecution for a reason that is not a Convention reason. Thirdly, were it not for that other person’s persecution or fear of persecution, it is reasonable to conclude that the applicant’s fear of persecution would not exist. In other words, for this section to apply, an applicant must be a member of a particular social group, his or her family, which is persecuted or fears persecution consequent upon the persecution or fear of persecution (for non-Convention reasons) of another member of the same family.
The background of the section has been explained in STCB v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 556 by Gleeson CJ, Gummow, Kirby, Callinan and Hayden JJ at 560-561 [16] to [18] in the following terms:
In Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) Merkel J (Heerey and Sundberg JJ concurring) held that a family was capable of constituting a particular social group for Convention purposes. It was also held that a Colombian threatened with murder if a debt contracted to underworld figures by her subsequently assassinated brother were not repaid by her could be seen as being persecuted for a Convention reason, namely membership of a particular social group comprising her family.
The Explanatory Memorandum to the Migration Legislation Amendment Bill (No 6) 2001, which, on enactment, inserted s91S into the Act, said that s 91S:
"addresses a recent court finding that a relative of a person facing persecution for a non-Refugees Convention reason, such as pursuit by criminal elements for repayment of debts, is themselves [sic] facing persecution for the Convention ground of membership of a particular social group when the attentions of the agents of persecution turn to them, for example for repayments of the debts. This type of situation falls outside the range of grounds for persecution covered in the Refugees Convention."
The Explanatory Memorandum then gave a summary of s 91S, and concluded:
"The above provisions do not prevent a family, per se, being a particular social group for the purpose of establishing a Convention reason for persecution. However, they prevent the family being used as a vehicle to bring with [sic] the scope of the Convention persecution motivated for non-Convention reasons."
In STCB’s case the applicant claimed that the grandfather killed a member of the Paja family in 1944-45 and in 1977 the Paja family made threats of killing the applicant or his brother, notwithstanding that his father was still alive. In those circumstances, their Honours described the operation of s.91S in the following terms:
Applying s 91S(a), it is clear that his grandfather had a fear of persecution for a reason other than those mentioned in Art 1A(2) of the Convention -- revenge for murder. Section 91S(a) requires that fear of persecution to be disregarded. Section 91S(b)(i) requires the appellant's fear of persecution to be disregarded, for it is reasonable to conclude that that fear would not exist if the grandfather's fear had never existed. And s 91S(b)(ii) requires that the brother's and the father's fear of persecution be disregarded, for it is reasonable to conclude that neither of those fears would exist either if the grandfather's fear had never existed. The result of disregarding the fears of persecution of the grandfather, the appellant, the father and the brother is that the appellant is to be treated as not having a well-founded fear of persecution for the reason of membership of a particular social group that consists of the appellant's family.
In order to apply the section, findings on three threshold issues have to be made, namely:
a)has any other member or former member of the applicant’s family been persecuted or had a fear of persecution;
b)if so, what was the reason for the persecution; and
c)is that reason mentioned in Article 1A(2) of the Convention [STCB’s case at 562 [26] and [29]].
In STCB, the High Court found that the Tribunal had accepted that the applicant, his grandfather, father and brother feared persecution by the Paja family. It found that this persecution was revenge for the grandfather’s criminal acts and that this did not come within Article 1A(2) of the Convention. Their Honours said that the Tribunal had correctly found that revenge for a criminal act did not fall within Article 1A(2).
The High Court further explained the operation of the section by saying that it reverses the finding in Sarrazola’s case insofar as that case permitted claims of persecution by one family member deriving from persecution of another family member for non-Convention reasons (at 563 [32]).
The difficulty in this case is that the persecution feared by the applicant appears to arise out of the conduct of a person who probably never feared persecution himself. That is to say, the applicant’s father was killed in the attack on the Haka family and may never have had the opportunity to be persecuted or to fear persecution as a result of his acts. Although s.91S(a) contemplates the possibility that the person whose persecution or fear of persecution leads to other family members’ derivative claims may be dead, that test still requires that that first person himself or herself experienced persecution or fear of persecution for a non-Convention reason.
The event in question is described at CB 138 in the following terms:
[The applicant] claims that two respected community leaders asked his father several times to forgive the killing of [the applicant’s brother] but his father did not and on 3 March 2000 without the knowledge of the rest of the family his father went to the Haka home intent on killing Ilir and shot him and two other Haka family members dead and was killed himself.
The incident is further described at CB 140 in the following terms:
There were no problems between his father and/or family and the Haka family before the death of his brother on 14 August 1998. His father killed the three members of the Haka family in March 2000. His father rode a bike to the Haka family farm on 10 March. … He felt sure his father only intended to kill Ilir, but when he saw they were armed he just shot with an automatic weapon.
The Tribunal’s conclusion on this issue is found at CB 150 in the following terms:
I am satisfied the applicant’s father committed a very serious criminal act of murdering the three members of the Haka family, in revenge for the killing of one of his sons. … I am satisfied that the motivation for any hostile action that may in the future be directed at the applicant from the Haka family would be an act of revenge against his father’s family, because he is the son [of] the person who murdered three of their family. It follows that in view of s.91S of the Migration Act I must disregard the fear of persecution the applicant may have because he is a family member of a person who killed these people. He feels that he himself will be killed by the Haka family for a non-Convention reason ie. the killing of their three family members.
Under the test provided by s.91S(a) the non-Convention reason for persecution would have been persecution of the applicant’s father for his criminal acts. On the other hand, if his father did not fall within s.91S(a), persecution of the applicant would be for a Convention reason, namely his membership of a particular social group, ie. his family, and would not be affected by s.91S.
There is no evidence that the applicant’s father was ever persecuted or ever feared persecution and such facts as are before the Court suggest that he might not have, if only because his death was so close in time to his own crimes.
This lack of evidence reflects the fact that, in applying the facts to s.91S, the Tribunal did not ask itself whether the applicant’s claim derived from the persecution or fear of persecution of another member of the applicant’s family as required by s.91S(a).
The Tribunal did not ask whether the applicant’s father was a person who experienced persecution or fear of persecution for a non-Convention reason and whether the applicant’s fear of persecution would not exist without his father’s persecution or fear of persecution. The Tribunal appears to assume, because the applicant’s father committed a revenge killing, and was killed in the process, that this means that the applicant’s fear of persecution is covered by s.91S. However, as already noted, there was no evidence cited in the Tribunal’s decision which referred to the father’s state of mind in the period between the killings he committed and his own death, assuming they were not simultaneous. In the absence of such evidence, the Tribunal could not conclude that the test in s.91S(a) had been satisfied and if that test was not satisfied then the section does not apply to the applicant.
Having not correctly asked itself the threshold question posed by s.91S, the Tribunal’s conclusion that s.91S prevented the applicant’s fear from falling within Article 1A(2) was affected by error.

One aspect of the applicant’s claim was that the persecution he feared arose out of the families’ different religions. Consequently, it was an important part of the Tribunal’s consideration to determine whether the fear of persecution alleged by the applicant was, in part, religiously based and how well-founded that fear was. Part of this consideration involved consideration of the possibility of reconciliation between the applicant’s family and the Haka family.
Seen in those terms, it is apparent that this issue was not irrelevant to the Tribunal’s consideration and this ground is not made out.

The Albanian state could not protect him

At the hearing in this Court the applicant said that his state could not protect him. The Tribunal made no finding on whether the Albanian state could protect the applicant from the persecution he fears. It said at CB 149:
The Albanian authorities have recognised the problems presented by blood feuds and have put in place some political and judicial procedures to address these problems.
…
I accept that there are conciliation committees attempting to reconcile families but the evidence before me indicates their attempts are not always successful…
The Tribunal discussed the test of persecution at CB 137 and said this:
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve “serious harm” to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
However, the Tribunal did not ask the questions required by this test, as it should have, presumably because it was satisfied that s.91S was determinative of the application.
By not properly addressing this issue, the Tribunal failed to exercise its jurisdiction as it should have done and was in error.

The Albanian government is persecuting him

This claim was not made by the applicant at the Tribunal. Indeed, the Tribunal recorded the following:
Furthermore, the applicant told the Tribunal (T2) that he had no confrontation with the Albanian state. (CB 151)
The Tribunal did not err by not considering an issue which the applicant did not raise with it.

Conclusion

By reason of its failure to apply s.91S of the Act correctly and by not determining whether the Albanian state could protect the applicant, the Tribunal’s decision is affected by jurisdictional error.
Consequently, the Tribunal’s decision will be set aside and the matter remitted to the Tribunal to be decided according to law.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate: Parisra Thongsiri

Date: 5 April 2007