VTAA v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1064

FEDERAL COURT OF AUSTRALIA

VTAA v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1064

MIGRATION – application for merits review – application dismissed

VTAA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V 837 OF 2003

MERKEL J
3 OCTOBER 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V837 OF 2003

BETWEEN:	VTAA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	3 OCTOBER 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V837 OF 2003

BETWEEN:	VTAA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE:	3 OCTOBER 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant filed an application in the Court challenging a decision made on 18 August 2003 by the Refugee Review Tribunal (“the Tribunal”), which upheld a delegate’s decision not to grant him a protection visa.  The application, which was lodged on 3 September 2003 and appears to be in a standard form, claims all grounds possible for a challenge against a decision of the Tribunal.  In each paragraph, after stating the ground of review, the Particulars/Details provide:

   “Details of the errors will be provided in accordance with directions of the Court.”

2. When this matter came before me on 19 September 2003 for directions, I indicated to the applicant that he needed legal assistance to mount any legal challenge, and I adjourned the matter to today on the basis that if he was able to obtain legal assistance or if there was a referral under the Court’s legal assistance scheme under O 80 of the Federal Court Rules 1979 (Cth), I would make further directions.  But in the absence of a referral and any legal representation, I indicated the matter would be finally heard today.

3. The applicant, who has family in Australia who assisted him on 19 September 2003, has not obtained legal assistance, nor is there any basis for believing that in the immediate future he will be able to obtain legal assistance.  There has also been no referral under O 80.  Accordingly, the matter has come on for final hearing today.  The applicant has asked for an adjournment in order to try and get legal assistance but he has not presented anything to me today that suggests that he would be likely to be any more successful in the future than he has been to date in obtaining such assistance.

4. I will briefly summarise the facts that are relevant to the present application.  The applicant, who is a citizen of Albania, was a police officer in Albania during the Communist Party reign from 1987 to 1990, during the period when the government collapsed in 1990 to 1992, and during the “new” government under the Democratic Party from 1992 to 1995.  He left Albania in 1995 to come to Australia, and has since been in Australia.  In 2001 the Socialist Party, which contains a number of members of the old Communist Party, was elected.

5. The applicant claims he would be persecuted if he were returned to Albania because of an imputed political opinion that he is either a Communist supporter because of his work as a prison guard under that regime, or as a Democratic Party supporter because of his work as a prison guard under that regime and because he once attended a protest against the Communist Party.  He also claims to fear persecution from the political prisoners he used to guard as a police officer, whom he claims are now influential men and he fears may wish to punish him, and others, involved in their incarceration.

6. The Tribunal found that, even accepting that the applicant could have imputed to him a pro-Communist Party political opinion, this would not be a problem given that a successor to the Communist party is now in power.  Alternatively, the Tribunal found that whilst there is “some prospect” that the applicant may be regarded as a Democratic Party supporter because of his work as a police officer during their term in government and his involvement in an anti-Communist demonstration, it found there was no evidence to suggest that low level Democratic Party supporters face a genuine risk of persecution.

7. The Tribunal went through country evidence and explained why it had arrived at those conclusions.  It found, at best, the applicant may be considered to be a low-level Democratic Party supporter but this would not mark him out for special adverse treatment, given that he has not been in Albania for over eight years and he has not been subject to previous mistreatment or threats regarding his supposed connections with the Democratic Party.

8. The Tribunal went on to consider the applicant’s claims in relation to his fears of revenge from former prisoners.  The Tribunal had serious reservations about whether police officers would constitute a particular social group, but it found it did not have to decide that matter because it did not find on the substantive claim that the applicant had a well-founded fear of persecution by reason of his background as a police officer.  In regard to any threats he may face from ex-prisoners, the Tribunal found there was a reduction in the gravity of the threat because of the time that the applicant had been away from Albania.  It also found that the risk from ex-prisoners would not emanate from the State, but rather from private individuals.  It held that that risk would not have an “official quality” to it, and it was also satisfied that the State would not be unable or unwilling to provide the applicant with effective protection were such harm a real prospect.

9. The Tribunal also rejected the claim made by the applicant’s brother that the Albanian government employs criminal gangs to commit political killings, stating there was no probative evidence of that.

10. It is fairly clear from the above summary of the Tribunal’s decision that, essentially, it treated the review as turning on questions of fact and found against the applicant on those questions of fact.  As a result of its factual findings the Tribunal concluded that, having considered the evidence as a whole, it was not satisfied that the applicant is a person to whom Australia owes protection obligations under the Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

11. I asked the applicant whether he was able, in his own words, to state what it is that he is really complaining about in respect of the Tribunal’s decision.  Whilst it is understandable that he would not be able to enunciate any complaint in legal terms, his only complaint was that he claims that he fears persecution if he goes back, that he might be in danger, and that he ought to be given refugee status as claimed.  The problem is that those are all questions of facts which were investigated, it would appear quite properly, by the Tribunal and on those factual questions it made findings adverse to the applicant’s case.

12. This Court’s role is not one of merits review.  The Court is restricted, in effect, to determining whether legal error occurred, which would equate to jurisdictional error.  I am satisfied, having carefully considered the Tribunal’s decision, that the decision was not infected by any legal or jurisdictional error.  In the circumstances the application is to be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated:            7 October 2003

For the Applicant:	Appeared in person
Counsel for the Respondent:	Mr CG Fairfield
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	3 October 2003
Date of Judgment:	3 October 2003