Bitani v Minister for Immigration & Multicultural Affairs

the grounds of review 7 The grounds of review were identified as being : (1) that the Tribunal erred in law in failing properly to assess the applicants' claims with respect to a refoulement to Albania, and applied the wrong test in determining : · that the applicants could be returned to Albania, and · that the applicants did not have a well-founded fear of persecution if they were to return to Albania; (2) that the Tribunal's decision was induced or affected by actual bias; (3) that the Tribunal failed to act according to substantial justice and the merits of the case, contrary to s 420(2)(b) of the Act; (4) that the Tribunal's decision was an improper exercise of its power. 8 Particulars of those grounds of review were given. An additional ground of review asserting that the Tribunal did not have jurisdiction to hear the application because the applicants were not provided with a competent interpreter at the hearing before the Tribunal, contrary to s 427(7) of the Act, was not pursued at the hearing. 9 The applicants sought to tender at the hearing affidavits of each of them, and of Father Gian Paolo Civardi, Lush Kolaj, Ergi Anton Kola and of their solicitor. That material was, it was submitted, directed to serving two purposes. 10 The first was to demonstrate that the applicants did not have any real opportunity before the Tribunal to be aware of and to adduce information relating to whether they could return to Albania and be given effective protection there. That affidavit material was based upon what had transpired at the hearing before the Tribunal. As the transcript of evidence of that hearing was before the Court on this application, and as there was no particular content in that affidavit material which sought to establish a fact or facts about what transpired at the Tribunal which could not be discerned from the transcript of the hearing before the Tribunal, I reject that material adduced for that purpose. The transcript of the hearing before the Tribunal is included in the material before the Court. It provided the foundation for submissions about the conduct of the hearing. 11 The second purpose was to demonstrate that there is material which the applicants would adduce to the Tribunal, if given the further opportunity to do so, directed to showing that they cannot return to and live safely in Albania because there is a real chance that they will be persecuted in Albania for a Convention reason. Counsel for the applicants did not seek to rely on that material so as to effectively achieve a re-hearing of the review application on the merits. The Court is not empowered to do that. The available grounds of review are confined to those specified in s 476(1) of the Act. The material was adduced to show that, if reviewable error on the part of the Tribunal were otherwise demonstrated, it would not be futile to remit the application for review of the delegate's decision to the Tribunal for reconsideration. Counsel for the respondent acknowledged that, if reviewable error on the part of the Tribunal were established, it would be appropriate to remit that review application to the Tribunal for reconsideration. In view of that acknowledgment, it is not necessary to receive that affidavit material for that second purpose.

consideration of grounds of review 12 This matter was argued together with the application for review of a decision of the Tribunal in Kola v Minister for Immigration and Multicultural Affairs [2001] FCA 630 ("Kola"). Reasons for decision in Kola were delivered immediately before these reasons for decision. The circumstances of the applicants are similar to the circumstances of the applicants in Kola. The grounds of review in each matter have substantial commonality. In those circumstances, these reasons for decision are somewhat shorter than would otherwise be the case. I will express my reasons for decision in part by adopting the reasons for decision in Kola, but of course it will be necessary to address the individual circumstances of the applicants. 13 As in the matter of Kola, the claimed error of law on the part of the Tribunal related in part to the quality of the Tribunal's process rather than to any specific terms of its reasons. It is claimed that the Tribunal did not explore or assess the applicants' claims of fear of persecution in Albania as it found simply that "they did not like living there and state the country is corrupt and there is general violence", and did not assess the practical realities of the applicants' circumstances in Albania, including those faced by them as Catholics in Albania and as potential targets of violence by the Kosovo Liberation Army, and did not explore the "special nature" of the applicants' claims relating to their fear of returning to Albania. 14 According to the initial interviews with the applicants on 5 January 2000, with the assistance of an interpreter, they came to Australia to get away from trouble in Kosovo. At that point they made no claims of fear of persecution in Albania itself. Their applications for protection visas, dated 6 January 2000, also made no complaint concerning any fears of returning to Albania or of mistreatment whilst they were there, although the form to be completed does not direct attention to that question. The decision of the delegate of the respondent did not focus on that issue, and the application to the Tribunal for review of that decision dated 3 March 2000 understandably also did not contain that focus. 15 In introductory remarks at the hearing the Tribunal explained that, even if the applicants were refugees from the former Federal Republic of Yugoslavia, Australia would not owe protection obligations to them if they can have effective protection in a third country. The basis of the decision on that question was to be what the applicants said at the hearing, from their written submissions (it is not clear whether the Tribunal had in mind material other than that discussed in the preceding paragraph), and from information obtained from other sources. The Tribunal said further : "As I said before, if you establish you are a refugee in regard to your country of nationality, you still don't attract Australia's protection obligations if you have effective protection in another country. What effective protection means is that you have a right to return to a third country and reside there without the risk of being sent back to the country where you might be persecuted. ..." 16 Each of the applicants gave evidence. Most of the questioning of the Tribunal was directed to ascertaining why the applicants had left Presheve and why they could not safely return there. There were also questions about how they arrived in the refugee camp near Tirana and the conditions there, about the process of their registration as refugees in Albania on 15 April 1999, and the fact that Mr Bitani's parents now reside in Tirana. The Tribunal then asked Mr Bitani why he could not return to Albania. The transcript records the following : "A: Did you ask me why can't I go back to Albania? Q: Well, you told me that your father can come and go across the border. Is there any reason you couldn't do that? A: I have the reason because what I am going to do to Tirana? To go in my own country I am afraid because it's still war. We had some news from Internet and it says there that in our village in Presevo the village is mined and also there are Serbian forces there. Q: If the border is open why can't you go to Albania? A: What I am going to do in Albania? Albania is not my country. I don't have my home in Albania. What I am going to do in Albania? Q: Well, you may get effective protection there, the same as you might get protection here. You know Australia is not your country either. A: I know that Australia is not my country, even though I am very grateful to Australian government what they have done for us. If someone can give me, by writing, to guarantee me that if I go back in my country I can have my own home and I can have my own work and I can have my own life, then I'm going back there, but who knows how long this situation will go on? Q: One of the questions for me is - I understand you don't want to go there because there is a war going on and maybe properties gone, but one of the questions that I have to answer is whether or not you are allowed to go to Albania. Sorry, I will point out why: because you lived there before and you say you were recognised as a refugee and then you have told me your father has been able to leave Albania and go to Kosovo and then return on two times. So it seems to me maybe you are allowed to go to Albania. If you can get effective protection there, then you don't fit the definition of refugee, whether or not you've got work to do or not. That's a different issue. That's a humanitarian issue. A: But my father has told me on the phone as well the situation here in Albania is very difficult. Even the Albanians are leaving and they can't live in their own country, not us. Q: But are ethnic Albanians from Kosovo allowed to go to Albania? A: Yes, they can go to Albania. Q: And they can stay there if they want to? A: If they can find the work and if they can find a place where to live, maybe they can stay there, because we are all Albanians." 17 Ms Bitani also told the Tribunal that her parents now lived in Albania, together with her brother and her sister. She also was asked whether she could return to Albania. The transcript records : "Q: Do you think you can go to Albania? A: Why shall I go back to Albania? Albania is not my own country. Who can give me a guarantee that I can live in Albania? This country has given us lots and lots of things and we are very grateful about it. Q: I understand that Albania is not your country, the same as Australia is not your country, but like I pointed out to your husband, the issue for me is to assess whether or not Australia owes you protection obligations. If you are permitted to go to Albania without Albania returning you to a country where you might be persecuted, then Australia doesn't have protection obligations. A: We have no rights in Albania. We have no rights in Albania whatsoever. Our parents are living there. Actually she said, 'Our parents are barely living in there,' because Albania is a corrupted country. Q: It is well documented that Albania has got a lot of corrupt people, but your husband told me that his father has actually left there twice, gone back to Kosovo and then returned to Albania. You told me your parents are living in a village there as well. A: It's impossible to live in Presevo. They are living in Albania because they have nowhere to go. Q: Well, I understand why they are living there, but one of the issues to establish is whether or not you can also live in Albania. Your husband told me that any ethnic Albanian is allowed to go to Albania to live. A: I love my country. I love my country and I want to go back to my country, but only I need a guarantee from one organisation or from another one that I can have a good life, where I can live life, a normal life, in there and my children as well. I would go back to Presevo if they will guarantee - if any international organisation will guarantee me that. Q: That doesn't answer the question about whether or not you're allowed to go to Albania as an ethnic Albanian. A: Yes, I am allowed to live in Albania. Q: How are you treated in Albania? A: We had a warm welcome from them, but as you know they are poor people so the couldn't help us, but the international organisation has helped us." 18 The general effect of their evidence has been recorded in the Tribunal's reasons. It also observed that Albania is a signatory to the Convention. It referred to independent country information from a variety of sources concerning Albania's treatment of refugees from Kosovo, including its policy not to refoule ethnic Albanians to the former Federal Republic of Yugoslavia. It concluded : "The Tribunal finds that the Applicant and his spouse have been recognised as refugees in Albania and that they have the right to return to Albania as refugees, notwithstanding the refugee cards that were legitimately issued to them in April 1999 may have expired. While they did not like living there and state the country is corrupt and there is general violence, the available evidence describes corruption and lawlessness but does not disclose that the Applicant or his spouse face a real chance of persecution for reason of their nationality, religion or ethnicity or for any other Convention reasons if they return to Albania. The Tribunal is satisfied that, as a matter of practical reality and fact, to use Nicholson J's term, they are permitted to enter Albania and reside there and do not face a real chance of persecution for Convention reasons in that country, nor a risk that they will be refouled to the FRY. That is, they have effective protection in Albania and, as provided in section 36(3) of the Act, Australia does not have protection obligations to them." 19 In my judgment, that material does not support the contention of the applicants that the Tribunal erred in law by failing properly to assess the applicants' claims that they could not return to, and secure effective protection in, Albania. The conclusion that the applicants "did not like living there and state the country is corrupt and there is general violence" is a finding of fact. It is based upon the applicants' evidence. That finding of fact has not been attacked under s 476(1)(g). The Tribunal did address the practical realities which might confront the applicants if they were to return to Albania. It made findings about them. Again, those findings are not said to give rise to any ground of review under s 476(1)(g). It is correct that the Tribunal did not address the potential significance to the applicants' situation in Albania, if they were to return there, by reason of their Catholic religion or by reason of the activities of the Kosovo Liberation Army. Neither of those two matters were identified by the applicants to the Tribunal as being of concern to them during the hearing. In the particular circumstances, including the evidence of the applicants as to how they had been received into Albania and had been treated there for the period of about nine months before they came to Australia, I do not consider that the fact that the Tribunal did not address those matters demonstrates error of law on its part. 20 The applicants contend that the failure of the Tribunal to have addressed those two matters, and more generally to have given the applicants a greater opportunity to explain why they could not safely return to Albania, demonstrates a fundamental misunderstanding of the review process. I do not consider that that contention is made out. The Tribunal received the material required to be provided to it by s 418(3). Nothing was submitted to suggest any failure to conform to the provisions of Div 4 of Part 7 of the Act other than s 424A, to which I refer below. The Tribunal did identify to the applicants the issue which arose as to whether they could return to and secure effective protection in Albania. The complaint that the applicants were not given a sufficient opportunity to address that issue is not one which I consider amounts to a reviewable error of law, even if that complaint were to be made out. 21 Even if it be accepted, as the history of the application tends to suggest, that the applicants had not identified as an important issue the question whether they could return to, and secure effective protection in, Albania, the Tribunal raised that matter with the applicants at the hearing. The independent country information, as well as the applicants' treatment when they arrived in and while they stayed in Albania, was addressed. The applicants were asked questions which might have suggested but did not in fact suggest, that the picture such material presented might be inaccurate or incomplete. No particular material emerged from the applicants to put the Tribunal on notice that it should make further inquiries of the applicants or from other sources. Nothing emerging from the applicants indicated that they asked for further time to address the issue, or to assemble and put forward further material relating to it. For those reasons, in the circumstances of this matter, I do not consider that the complaint as a matter of fact is made out in any event. 22 In my view, the applicants' reliance upon s 424A is misplaced. As I explained in Kola at [28 - 29], I do not consider that the independent country information to which the Tribunal referred is not information of the character referred to in s 424A(1) because, in terms of s 424A(3)(a), it is not specifically about the applicants or another person but is just about a class of persons of which the applicants are members. 23 For the reasons expressed in Kola at [30], I also do not consider that the Tribunal's decision involved an improper exercise of power: see s 476(1)(d) and s 476(3)(a). Nothing indicates to my mind that the Tribunal conducted and decided the review for any purpose other than that for which its power of review is conferred. 24 Nor do I consider that the Tribunal assumed, without information, that there was no real chance of Kosovo Albanians being persecuted, or being unable to secure effective protection in Albania for any Convention reason. In my view the independent country information, as well as the evidence of the applicants at the hearing, provided a foundation for the Tribunal's conclusion on that matter. To the extent that the contention implicitly invokes the ground of review available under s 476(1)(g), I do not consider that it has been made out. 25 As determined in Kola at [37], in my view the introduction of s 36(3) - (5) of the Act by the Border Protection Legislation Amendment Act 1999 (Cth) does not alter or diminish the effect of s 36(2) of the Act. Section 36(2) has the effect that, if an applicant for a protection visa has, as a matter of practical reality and fact, the capacity to enter or re-enter an intermediate third country and to secure effective protection there without any real risk of being refouled to the country of nationality, then Australia does not owe protection obligations to that person: see Thiyagarajah; Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549; S115/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 540. I adopt my reasons for that conclusion in Kola at [32 - 44]. Finn J in S115/00A v Minister for Immigration and Multicultural Affairs at [8] expressed the position, following the decision of Carr J in Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229 in the following way : "The effect of Carr J's decision is, in my view, that : (i) where a non-citizen in Australia has a legally enforceable right to enter and reside in a third country, that person will not be owed protection obligations in Australia if he or she has not availed himself of that right unless the conditions prescribed in either s 36(4) or (5) are satisfied, in which case the s 36(3) preclusion will not apply; (ii) where a non-citizen in Australia does not have a legally enforceable right to enter and reside in a third country, Australia will nonetheless be entitled to refoule that person to that country consistent with Australia's obligations under Article 33 of the Convention, if that person is likely to be given effective protection in that country; and (iii) if neither s 36(3) or the wider effective protection principle applies to a person, that person is owed protection obligations if he or she is otherwise a 'refugee' within Article 1A [of] the Convention to whom the provisions of the Convention apply or continue to apply: see Article 1C to F; see also s 91ff of the Act." 26 I respectfully agree with his Honour. In many cases, it will not be necessary to address the first of those questions. Clearly the first and second of those questions are alternative considerations, and an affirmative answer to either of them will mean that Australia does not owe protection obligations to the particular visa applicant. In either event, it will not be necessary for the question whether the visa applicant is a refugee, as defined in Art 1A of the Convention, to be addressed. In Thiyagarajah, von Doussa J explained why it was unnecessary to address that question if the application of Art 33 meant that Australia did not owe protection obligations to the visa applicant. I think that the same reasoning would apply if the proper application of s 36(3) - (5) led to the conclusion that, for the purposes of the criterion expressed in s 36(2) of the Act, Australia is taken not to have protection obligations to a particular visa applicant. 27 In this matter, in my view, the Tribunal has correctly expressed and applied the law in relation to "effective protection" in a third country. Its conclusion that it is not satisfied that Australia does not owe protection obligations to the applicants is clearly expressed in terms applicable to Art 33 of the Convention. It has also found additionally that, by reason of s 36(3) of the Act, Australia does not have protection obligations to the applicants. Its reasons do not disclose separate consideration of the attempts by the applicants to avail themselves of any right to enter and reside in Albania, or of the meaning of the expression "right to enter and reside" appearing in s 36(3). But, as I have concluded, that decision is an alternative route to the rejection of the applicants' claim. It is clear that the Tribunal has addressed Art 33 of the Convention, relevant by reason of s 36(2) of the Act, and has concluded that, because the applicants have effective protection in Albania, they are not owed protection obligations in Australia. In my view, it has not fallen into reviewable error in reaching that conclusion. 28 For the reasons I expressed in Kola at [20 - 22], I do not consider that the applicants can succeed on their claim that the Tribunal contravened s 420(2)(b) of the Act, and that that contravention directly gives rise to a reviewable error under s 476(1)(e) or s 476(1)(d) of the Act. In respect of s 476(1)(d) in any event, I do not consider that the contention brings the matter within s 476(3)(a). The failure to properly investigate the question whether the applicants could safely return to and remain in Albania, even if made out, would not demonstrate the exercise of the power of review for the purpose ulterior to that for which the review power is conferred. 29 The applicants contended that the Tribunal's decision was induced or affected by actual bias because it had prejudged the issue of whether effective protection could be given to the applicants upon refoulement to Albania. Prejudgment which is incapable of alteration, which involves a mind closed to the issues raised, will constitute actual bias: Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71 at 123. It is necessary for the applicants to demonstrate as a matter of fact that the Tribunal had a mind so prejudged in favour of the conclusion that the applicants could secure effective protection in Albania that it would not alter its conclusion irrespective of the evidence or arguments presented: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 91. 30 The applicants contend that such a state of mind on the part of the Tribunal is demonstrated by the lack of adequate questioning on that issue, the failure to properly question the applicants about any fears of persecution in Albania, the reliance upon inadequate and inappropriate information of a generalised nature, the making of a positive finding from a lack of evidence without any inquiry or investigation which would have elicited appropriate information and the irrelevance of most of the questions asked by the Tribunal to that issue. 31 I do not consider that those matters are made out. The Tribunal was entitled to prepare for the hearing with the applicants. It had clearly identified as an important, and potentially a critical issue, that the applicants could return to and secure effective protection in Albania. It was apparent from the applicants' history that they had fled their own region to Albania and had then remained in Albania for some nine months. The independent country information about the treatment by Albania of Kosovo refugees such as the applicants indicated that they would be accepted as refugees and allowed to remain in Albania without real risk of refoulement. It indicated that refugees such as the applicants were not vulnerable to persecution for any Convention reason whilst in Albania. That was consistent with the applicants' personal history. 32 It is hardly surprising that the Tribunal identified that issue, and raised it with the applicants. Nor would it be surprising if it formed the preliminary view that the applicants could secure effective protection in Albania. The extent of its questioning of the applicants was no doubt tempered by the responses it received. The passage to Albania, and the accommodation and treatment of the applicants in Albania, was explored. It did not provide the Tribunal with any particular reason to delve deeper. The Tribunal did ask the applicants why they did not want to return to Albania. There is no reason to think that different answers may not have prompted the Tribunal to more extensive questioning of them, or of further investigations including perhaps a more extensive review of independent country information. The applicants' responses were not such that, in my view, the Tribunal's acceptance of them or the fact that it did not pursue the issue further with the applicants or in other ways points to actual bias on its part. As I have indicated earlier in these reasons, I do not accept that there was no evidence upon which the Tribunal could form its judgment on the matter. I also do not consider that the time during the hearing spent on inquiring about the applicants' experiences leading to them departing from their home area and their reasons why they could not return there demonstrate a closed mind on the part of the Tribunal. 33 In my judgment, the Tribunal has not been shown to have so prejudged the issue whether the applicants could secure effective protection in Albania upon refoulement there as to have had a closed mind on that issue irrespective of the evidence and arguments. Its conclusion is consistent with the evidence as it emerged, and in the light of the information which was provided by the applicants during the hearing, its manner of questioning or the content of its questioning does not reveal any such bias.

conclusion 34 For those reasons, I consider that this application should be dismissed. I so order. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 30 May 2001 Counsel for the Applicant: Ms R Layton QC Solicitor for the Applicant: McDonald Steed

Counsel for the Respondent: Ms S Maheraj and Ms E Reed Solicitor for the Respondent: Sparke Hellmore

Date of Hearing: 2 February 2001 Date of Judgment: 30 May 2001