SZCWF v Minister for Immigration

[2006] FMCA 30

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCWF v  MINISTER FOR IMMIGRATION AND ANOR [2006] FMCA 30

MIGRATION – Refugee – application for reinstatement – applicant must be given an opportunity to deal with adverse information – information falls within the exceptions in s.424A – complaint about a “non-essential” part of the Tribunal decision – error not operative to the Tribunal’s reasoning – no jurisdictional error – application dismissed.

Migration Act 1958, ss.91S, 424A(1), 422B, 424A, 424A(3)(a), 424A(3)(b)
Federal Magistrates Court Rules 2001, rr.21.02(2)(a), 13.03A(c), 16.05

SZCSX v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 520
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Kioa v West (1985) 159 CLR 550
Minister for Immigration & Multicultural & Indigenous Affairs v Applicants S194 of 2002 [2003] FCAFC 273
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Tang vMinister for Immigration and Multicultural Affairs [2000] FCA 1746

Applicant: SZCWF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 582 of 2004

Judgment of: Nicholls FM

Hearing date: 21 November 2005

Date of Last Submission: 09 November 2005

Delivered at: Sydney

Delivered on: 31 January 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. A. McInerney

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 582 of 2005

SZCWF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 5 March 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 January 2004 and handed down on 11 February 2004 affirming the decision made on 13 December 2001 by a delegate of the respondent Minister to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.

2. The background to this matter coming before me today is that at the first Court date on 17 June 2004 orders were made, by consent, that amongst other things the applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by 15 July 2004. The matter was also set down for hearing on 1 February 2005. On 5 November 2004 I heard an application from the respondent who sought to have the matter summarily dismissed by way of interlocutory application (Notice of Motion) arising out of the applicant's non-compliance with the order of the Court to file an amended application and in circumstances where the application put forward contained absolutely no grounds of review. The applicant did not attend this hearing, provided no explanation, and in circumstances where I was satisfied that the applicant had reasonable notice of the respondent’s Notice of Motion, I dismissed the application pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 (“the Rules”). On 21 January 2005 I heard an application by the applicant, who was at that time represented by a firm of solicitors, and made pursuant to r.16.05 of the Rules an order that the orders made previously be set aside and that the applicant's application be reinstated. The applicant’s solicitor appeared before me at that time with a proposed amended application which on its face, in the words of Madgwick J., in SZCSX v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 520, appeared to “pass muster”. On this basis, I made orders setting aside the order dismissing the application, and granted leave to the applicant to file the amended application. I also made orders on that date that the applicant was to file and serve written submissions no later than 14 days before the hearing date and listed the matter for final hearing. I note that subsequently no written submissions have been filed by the applicant, nor has the applicant filed any further evidence in support of his application. (The applicant’s affidavit of 19 January 2005 went to the issue of why the applicant had previously not filed an amended application. The applicant also asserts that it was not his intention to file any further evidence beyond what is contained in the Court Book filed by the respondent’s solicitors – paragraph 6).

3. The applicant is a national of Albania, who arrived in Australia on
   29 November 2000. He applied for a protection visa on 12 January 2001 and this was refused on 20 December 2001. The applicant sought review by the Tribunal on 20 December 2001. His claims to protection in Australia pursuant to the Refugees Convention were ultimately, as they were put before the Tribunal, that he had a well founded fear of persecution for a Convention reason if he were to return to Albania for reason of his membership of a social group, which was 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. The applicant's claims were variously set out in his application to the first respondent's Department, reproduced at Court Book (“CB”) 1 to CB 25, and in particular in a Statutory Declaration copied at CB 26 to CB 29, in his application to the Tribunal reproduced at CB 77 to CB 80, and in a hearing before the Tribunal that it conducted with the applicant on 15 January 2004 (CB 94). The Tribunal's account of what occurred at the hearing is set out in its decision record at CB 106.3 to CB 110.5. The applicant's then advisers made supplementary submissions in relation to the applicant's application and the Tribunal's reference to this is at CB 105 in its decision record. The Tribunal's “Findings and Reasons” are set out at CB 111 to CB 119.

4. Relevantly the Tribunal made the following findings:

   1)It accepted the applicant's claim as to his identity, and that this was not the identity on the passport that the applicant used to travel to Australia (CB 111.3).

   2)There was a relatively recent reactivation of an earlier tradition of blood feuds in Albania, particularly in the north of the country, from where the applicant claimed to have originated (CB 114.3).

   3)The Albanian authorities have recognised the problems presented by blood feuds and have put in place some police and judicial procedures to address these problems (CB 114.4).

   4)It accepted that the applicant’s brother was killed on 14 August 1998 by the “Haka” family in the manner described by the applicant, and was an innocent and unintended victim of the attack specifically directed towards his brother's friend (CB 114.5).

   5)It accepted that the motivation for the brother's murder was neither a revenge killing because of an existing blood feud between the Haka family and the applicant’s own family, or for a Convention related reason (CB 114.6).

   6)The Tribunal was satisfied that as a result of the brother's murder the applicant’s father subsequently murdered three members of the Haka family, from which the son’s murderer had come, but stressed that this was not for a Convention related reason but rather as an act of revenge. The father was then himself killed (CB 114.7).

   7)The Tribunal was also satisfied that the motivation for any hostile action that may in the future be directed at the applicant by the Haka family would be an act of revenge against his father, but again if this occurred it would not be undertaken for a Convention reason CB 115.7.

   8)The Tribunal found that having regard to s.91S Migration Act 1958 (“the Act”) it must disregard the fear of persecution the applicant may have because he is a family member of a person who killed three people, and was then killed himself by the members of this family, as the fear was for a non-Convention reason (CB 115.8).

   9)The Tribunal concluded in this regard that it found that because the events claimed by the applicant that gave rise to his claimed fear of persecution as a member of his family are not motivated by a Convention related reason, s.91S of the Act requires the Tribunal to disregard them, and prevents the applicant from coming within the scope of the Convention on that basis. It was therefore satisfied that the applicant did not have a well founded fear of persecution for a Convention reason on the basis of membership of a social group described as being his family (CB 116.4).

   10)The Tribunal was also satisfied that the applicant did not have a well founded fear of serious harm for a Convention reason on the basis that he was a member of a social group described as the “Citizens of Albania who are subject to customary law of Code of Lek Dukagjini or the Kanun” (CB 118.8).

   11)The Tribunal accepted that the applicant's family is Catholic, and that the Haka family and the majority of the population of Albania is Muslim, but it was satisfied that the applicant did not have a well founded fear of serious harm amounting to persecution because of his religion (CB 119.8).

   12)The Tribunal was satisfied that there was not a real chance that the applicant would be subject to serious harm amounting to persecution for a Convention reason if he returned to Albania, now or in the foreseeable future (CB 119.9).

5. The amended application to the Court (drafted with the assistance of solicitors) sets out the following grounds:

   “1.The Tribunal made jurisdictional errors in that:

   A. It erred in finding that, because the applicant's family had had a cordial relationship with the Haka family prior to the death of the applicant brother on
   14 August 1998, the persecution alleged by the applicant was not and could not have been based upon religious grounds; and/ or

   B.It erred in finding that, because of the deaths of the applicant's father and 3 Haka family members were originally due to a family feud that started with the unintended killing of the applicant’s brother, the persecution that the applicant alleged he suffered and would suffer if compelled to return to Albania did not and could not have been based on religious grounds; and/ or

   C. It erred in relying upon a publication, the International Religious Freedom Report 2002 for Albania, when it did not disclose to the applicant its intention to do so, when it did not provide a copy of the said report to the applicant and when it did not give the applicant an opportunity to respond to the said report.

   As a consequence the Tribunal exceeded its authority or powers.

   2.The Tribunal made a jurisdictional error in that it identified a wrong issue, it asked itself a wrong question and it relied on irrelevant material in that it asked questions of and put propositions to the applicant in relation to the question of his identity, particular whether or not he was (the assumed name), or indeed, if (the assumed name) was the applicant, when the Department, having completed due enquiry, was satisfied that there was no issue as to the true identity of the applicant and, in doing so, the Tribunal's exercise or purported exercise of power was thereby affected. As a consequence, the Tribunal exceeded its authority or power.”

6. The applicant was unrepresented at the hearing before me. His solicitors had ceased to act for him by notice filed on 27 October 2005. He participated in the hearing before me by telephone audio link. The applicant was in Melbourne and had sought previously to participate in the hearing in this way. This had been arranged with the assistance of the Asylum Seeker Resource Centre in Melbourne who were assisting the applicant in a limited capacity. At the hearing before me he was assisted by an interpreter in the Albanian language. Ms. Rayment appeared for the respondents. At the hearing the applicant stated that he “wanted his rights” and wished to be accepted as a refugee. He stated that he did not understand why he is not allowed to stay in Australia and did not know why the Tribunal refused his case. Beyond this the applicant was not able to offer anything of substance to support his case.

7. The applicant's first complaint in the amended application is that the Tribunal erred in finding that because the applicant's family had had a cordial relationship with the Haka family prior to the death of his brother, the persecution alleged by the applicant was not, and could not, have been based upon religious grounds. Similarly, the second and related complaint is that the Tribunal erred in finding that because the deaths of the applicant's father, and the three Haka family members, were originally due to a family feud that started with the unintended killing of the applicant's brother, that the persecution that the applicant feared if compelled to return to Albania did not and could not have been based upon religious grounds. Ms. Rayment submitted that the applicant has misstated the effect of the findings of fact made by the Tribunal in respect to this issue, and that the Tribunal considered the evidence before it, and on this evidence it was not satisfied that the applicant had a well founded fear of serious harm amounting to persecution because of his religion (CB 119.9).

8. The applicant’s claims in this regard were predominantly made at the hearing before the Tribunal. The applicant made some reference linking his own family, the Haka family and religion, in his application to the first respondent’s Department. For example in his affidavit lodged with his protection visa application, at CB 28.3, the applicant said:

   “The Haka family are a large family and they are quite aggressive. Before these incidents my family was acquainted by the Haka family but not particularly friendly with them. They are Muslim whereas my family is Catholic and this could lead to a bit of a divide in Albanian society.”

   Notwithstanding this, the applicant’s claims up to the hearing before the Tribunal, on what is revealed by the material before me in the Court Book, show that what was pressed by the applicant was not the ground of religion, but the fear of persecution based on his membership of a particular social group, which at first was described as his family, and then later as the group of people subject to the “Kanun”. In his application to the Tribunal the applicant only stated (CB 79) as the reasons for why he disagreed with the “Department’s decision”:

   “The department has fund [sic: found] that I am not a refugee and that I have not told the truth about the situation regarding a blood feud in Albania. I do not agree with the Department's decision. I do have a well founded fear of persecution in Albania because of my membership of a particular social group (my family).”

   Further, it is clear from the Tribunal's unchallenged account of what occurred at the hearing before it, and I note in this regard that the applicant has brought no evidence whatsoever to challenge the Tribunal's account of what occurred at the hearing, the applicant introduced the claim, specifically when asked if he had any changes to make to the claims that he had already made, he replied that he would “like to add” that because of the religious differences the Muslim family would take revenge on him (CB 106.4).

9. In its “Findings and Reasons” the Tribunal dealt with the applicant’s central claim (as put) that the applicant’s problem stemmed from the blood feud between his family and the Haka family beginning with the unintended killing of his brother (CB 111.1 to CB 118.10). At CB 119.1 the Tribunal noted that the applicant's claim raised for the first time (it said) at the hearing that his family had bad relations with the Muslim family because of their religion. It also reported that later in the hearing he made it clear that the relationship between his Catholic family and the Muslim Haka family prior to the death of his brother was “cordial but not close confining themselves to greetings”. The Tribunal noted that it gave several opportunities to the applicant to elaborate on this claim at the hearing but he did not do so. I should just note that the applicant’s original description of the relationship with the Haka family as “not particularly friendly” (“a bit of a divide”) can clearly be contrasted with his initial description at the hearing (“added” for “the first time”) that the families “had had relations”. The Tribunal was in my view entitled to see this as an “added” claim. In any event, the applicant subsequently changed this description to “cordial but not close”.

10. The Tribunal accepted independent information relating to the religious makeup of Albania, and noted a US State Department Report (the subject of a separate complaint) that the Albanian constitution provided for freedom of religion, and that the government generally respected this right in practice, and further, that the generally amicable relationship among the religions in society contributed to religious freedom. But, it is clear that the Tribunal’s finding in relation to the applicant's claim to fear persecution on the basis of religion was dealt with, and in my view properly, in the context of the applicant’s claims and the Tribunal's finding that the applicant did not claim that the death of his brother, his father, or the three Haka family members in March 2000, or any other difficulty, was caused in anyway because of religious or other differences, but was as a result of a blood feud that started with the unintended killing of his brother, and then was compounded by his father's act of murdering three of the Haka family in revenge. The Tribunal also found that the applicant did not claim that he or his family had ever experienced harassment, been detained, tortured or persecuted because of their religion, or even had any other difficulties whatsoever because of it. The Tribunal's finding that the applicant did not have a well founded fear of serious harm amounting to persecution because of his religion was clearly open to it based on its (in my view comprehensive) analysis of the applicant’s claims, and the weight that it gave to those claims in the context of nonetheless accepting that the applicant's family was Catholic, and the Haka family was Muslim, and that the majority of the population in Albania is Muslim. Clearly the weighing of evidence is a matter for the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291-292. The Tribunal did make findings in this regard which were open to it on the material before it. In relation therefore specifically to the first part of the applicant's claim that the Tribunal erred, because it found that the persecution was not based upon religious grounds because the applicant’s family had had a cordial relationship with the Haka family, this is a misrepresentation of what the Tribunal has actually done. This is ultimately how the applicant himself is reported to have described the relationship between the two families. Further, it was clearly open to the Tribunal on what was before it to find that the feud started with the unintended killing of the applicant’s brother and was not based on any religious grounds. In all the Tribunal's findings in this regard were open to it on the material before it and I can see no error on the part of the Tribunal in relation to this complaint.

11. The applicant also complains that the Tribunal erred in relying upon the publication “International Religious Freedom Report 2002 for Albania” when it did not disclose to the applicant its intention to do so. The applicant complains that he was not provided with a copy of the report, and not given an opportunity to respond to this report. Although it is not precisely stated, this appears to be a complaint that the Tribunal had an obligation to put this material to the applicant presumably in the context of the common law rules of procedural fairness or pursuant to s.424A(1) of the Act. In this regard I note the respondent’s submissions that s.422B of the Act applies to the case. I also note however that the application for review to the Tribunal was made on 20 December 2001, prior to 4 July 2000 when s.422B of the Act became operational.

1. In any event it is clear that the general situation under the common law is that an opportunity should be given to an applicant to deal with adverse information that is credible, relevant and significant to the decision to be made: Kioa v West (1985) 159 CLR 550, per Brennan J. at 629. But not every failure to provide adverse information will amount to a breach of procedural fairness. The critical issue is whether the information is credible, relevant and significant to the decision to be made or indeed whether the substance of information may be characterised “as an important plank” in the Tribunal's reasons: Minister for Immigration & Multicultural & Indigenous Affairs v Applicants S194 of 2002 [2003] FCAFC 273 at [17]. In these circumstances the substance of the information must be provided to the applicant with an opportunity to comment.

2. The report referred to by the applicant in his amended application appears to be that referred to in the Tribunal's decision record at CB 119.5. This is described in the Tribunal’s decision record as “International Religious Freedom Report 2002 for Albania”, released by the Bureau of Democracy, Human Rights, and Labor on 7 October 2002. This report was not reproduced in the Court Book. While a later version dated 31 November 2003 appears at CB 132 to CB 144, no specific explanation has been offered for the failure to include the actual report referred to by the Tribunal in the Court Book. At the hearing I made orders that the first respondent file the report referred to and provide the applicant with any opportunity to make any subsequent written submissions. The affidavit of Bernadette Marie Rayment sworn on 23 November 2005 (and filed the same day) annexes the relevant report. No submissions have been received from the applicant.

3. To the extent that the Tribunal referred to this report as set out at CB 119.4, and in looking at the information contained in the report, it is clear that in terms of s.424A of the Act that the extract from this report (page 2.2 of Annexure “A” of the Affidavit) relied on by the Tribunal is not about the applicant or another person, and clearly falls within the exception contained in s.424A(3)(a) of the Act from the requirement to put such information to the applicant pursuant to s.424A(1): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92. In terms of common law procedural fairness it is also clear from the Tribunal’s decision record in relation to the issue of the applicant's claims based on his religion that the Tribunal's decision turned on what the applicant himself had put to the Tribunal, or perhaps more accurately what the applicant did not claim and in the context of its finding of the source of the applicant’s problems. The Tribunal found that the difficulty arising out of the family blood dispute was not caused in anyway because of religious or other differences. It was open to the Tribunal to find this as this was consistent with what the applicant himself was reported to have ultimately claimed at the hearing before the Tribunal. While the Tribunal noted that the applicant had pointed out the religious differences between his family and the Haka family, it was open to the Tribunal to weigh this evidence as against other evidence provided to the Tribunal by the applicant as to the reasons that led to the difficulties between the two families. In this regard it was open to the Tribunal to find that this was not as a result of any religious basis. This finding is not dependent on, nor is there any relevance to, the Tribunal’s noting of the US State Department Report that spoke of constitutional provisions and the government's position. Having found that the dispute between the two families was not because of a religious reason then the issue of the government's attitude and the Constitution, presumably in terms of adequate state protection, is not relevant. The Tribunal’s use of this information was clearly as background. The information was about the Albanian Constitution and government attitudes to freedom of religion. I note that the applicant had made no claims whatsoever to problems with the government over his religious beliefs or from anyone else. The Tribunal clearly found in this regard at CB 119.6:

   “Nor does the applicant claim that he or his family has ever experienced harassment, been detained, tortured or persecuted because of their religion, or even had any other difficulties whatsoever because of it.”

   On what was before it, it was clearly open to the Tribunal to make this finding. The applicant did not put forward any claims that as a Catholic in a predominantly Muslim country he faced any discrimination or persecution beyond what arose out of the dispute with the Haka family. In this regard, I cannot see that the information relied on by the Tribunal was significant to the decision made by the Tribunal, and I would not regard it as an important plank in its reasons. It is clear that the applicant's claim “added” at the hearing before the Tribunal (in the way set out above), that the feud with the Haka family had a religious element to it, was dealt with by the Tribunal. In this it is clear that the information referred to by the Tribunal does not appear to rise above general background information. In any event, as I have said the issue was clearly and effectively dealt with by the Tribunal’s finding on what the applicant himself put to the Tribunal that the difficulties between the families was a blood feud, and the absence in the applicant’s claims of any other religious based problem. To the extent that the Tribunal relied on what the applicant said, information provided by an applicant to the Tribunal in the statutory context falls within the exemption contained at s.424A(3)(b) of the Act from the requirement to be put to the applicant pursuant to s.424A(1). In the context of common law procedural fairness I cannot see any obligation for the Tribunal to put to the applicant information on which it relied that was supplied by the applicant himself to the Tribunal, and in any event was, according to the Tribunal’s account, discussed at the hearing. (See particularly CB 107.9 where the Tribunal asked the applicant about his family, the Haka family and religious differences).

4. The applicant also complains in his amended application that the Tribunal committed a jurisdictional error in asking itself the wrong question. Further, that it relied on irrelevant material in that it asked the applicant questions and put propositions to the applicant in relation to the question of his identity. In particular the applicant complains that the Tribunal should not have done this in circumstances where the first respondent's Department had made its enquiry, and it was satisfied that there was no issue as to the true identity of the applicant. The respondent submitted that this is a complaint about a non-essential part of the Tribunal's decision which could not be considered anything more than “a gratuitous aside” and referred me to Tang vMinister for Immigration and Multicultural Affairs [2000] FCA 1746 at [13] and [17]. The submission was that this complaint about the alleged error was not operative to the Tribunal's reasoning and made no difference to the outcome of the Tribunal decision. I agree with the latter part of this submission, but would not characterise what the Tribunal has done as a “gratuitous aside”. It is clear that the issue of the applicant's identity, given that he had used a passport which was not in his real name to travel to Australia, was an issue before the Minister’s Department. While the Minister’s Department may have made its enquiries, and indeed may have been satisfied as to the applicant's identity, this does not mean that the Tribunal was not entitled to satisfy itself as to the applicant's identity. There is nothing to oblige the Tribunal to accept uncritically findings by the Department's delegate. As the issue of identity can in some circumstances be relevant to the Tribunal's consideration of an applicant's claims, the Tribunal was entitled to turn its mind to this issue. The Tribunal’s account of the hearing it conducted with the applicant and indeed the relevant part of its “Findings and Reasons” (CB 111.1) clearly show that it turned its mind to the issue, and “quickly” said that it accepted the finding that the applicant was who he claimed to be, and was not the person whose identity appeared on the passport that he used to come to Australia. It is clear that in these circumstances, the Tribunal’s action in this regard contains no error. It accepted the applicant’s claim as to his true identity and in any event, the issue of identity was not operative to the Tribunal's reasoning, and ultimately was not relevant to the Tribunal’s final decision and conclusion.

5. In all, the Tribunal looked at all the applicant's claims as put by the applicant and as discussed and added at the hearing at which the Tribunal provided an opportunity to the applicant to support his claims and give evidence. The Tribunal took into account submissions made on the applicant's behalf and dealt with the applicant's claims and made findings which on the material before it were open to it. It gave reasons for the findings. I can see no error, let alone jurisdictional error, in the Tribunal’s decision. The application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: Wagma Aziza

Date: 31 January 2006