Pojani v Minister for Immigration & Multicultural Affairs

Tribunal's findings and reasons 10 The Tribunal made separate findings in respect of each applicant. The focus of the application for review to the Court became concentrated, after argument, on alleged errors of law arising from the Tribunal's approach to Mrs Pojani's application for a protection visa and so it is sufficient to be brief in respect of the Tribunal's decision regarding Mr Pojani, as supposed legal errors concerning that decision were ultimately not pressed.

Mr Pojani 11 The Tribunal Member made the following findings regarding Mr Pojani's claim: · The events prior to 1991, including his father's death, did not indicate that he faced a real chance of persecution should he return to Albania. The events were now "remote in time" and had not stopped him from attending university and obtaining qualifications as a construction engineer. · The events prior to 1991 did not provide a background on which his current claims should be accepted. The applicant husband's claim that the police would put pressure on him by reminding him of his father was "fanciful" as the situation in Albania was "qualitatively different from that which persisted during the years of the Communist regime". · The Tribunal was not satisfied that, if Mr Pojani returns, he would be targeted because of his political opinion and involvement with the Democratic Party. The Tribunal accepted that he was a diplomat in Hungary and that he was involved in the issue of visas and other documents. The Tribunal did not consider it surprising that, when the Socialist Party came to power, the new government would consider withdrawing his appointment to the Embassy that had been made by the former government. If, as his own story might suggest, he had been seen as an active supporter of the Democratic Party then his remaining in Hungary could be seen as against the interests of the new government. However, even if he did simply fall out of favour in 1997 with the change of government and may have been re-called back to Albania, the Tribunal was not satisfied that this meant there was a real chance of persecution if he returned. · In addition to the profile he obtained in Hungary, Mr Pojani also claimed that he would face persecution because he was a founder of the Democratic Party and had a close association with leading Democratic Party figures. Whilst the Tribunal accepted Mr Pojani's involvement with the Democratic Party, it did not accept that he would face persecution because of such membership. The Tribunal found that the country information did not support this claim and that there were no confirmed reports of political killings in 1999 despite claims of harassment, beatings and killings. The Australian Department of Foreign Affairs and Trade (DFAT) reported that regular claims of police harassment were made by the Democratic Party but credible evidence to support them was hard to come by. The Tribunal concluded that, whilst there had been problems in the past, the Democratic Party is a legitimate party, it forms part of the opposition and it appears that it will be contesting the next elections. The Tribunal did not accept that Mr Pojani would face a real chance of persecution for his founding role in the party or for his continued support of the party if he returned to Albania. · The Tribunal Member did not accept Mr Pojani's claims that his family was or is having any problems in Albania as a result of his situation. The Member did not accord much, if any, weight to documents or accounts provided by Mr Pojani from family and friends supporting the view that he would face persecution if returned to Albania. The Member doubted that some documents emanating from Albanian sources were genuine.

Mrs Pojani 12 Mrs Pojani's primary claim was that she faced persecution because of her involvement in the imprisonment of those responsible for her brother's death. An alternative claim, also rejected, was that she faced persecution as a result of her husband's close connections with the Democratic Party. The Tribunal's reasons were as follows: "The Tribunal accepts that the applicant wife's brother was killed in 1991. It accepts that at the trial of those responsible she gave evidence. The Tribunal also notes that the evidence that the terrorist group that formed in 1995 had a close connection with Hajredin Shyti who was gaoled for the shootings that occurred in 1991. However for the following reasons it does not accept that she will be targeted because of these matters should she return. Firstly, according to the evidence she has given the group she claims would be after her appears to have committed a random terrorist act of planting a bomb at a supermarket. This does not indicate to the Tribunal that this particular group [is] targeting her or her family. Secondly the applicant's parents remain in Albania. The Tribunal does not find it convincing that her family would be at risk because of this event but that her parents would remain in the country. Her explanation for this [is] that revenge on the younger generation hurts more is not plausible. Thirdly the Tribunal considers it most improbable that events that occurred in 1991 and 1992 that did not cause her to flee then or for which she was not then harmed, would cause her problems if she returned to Albania in 2001. In the Tribunal's view this remains the case even though there was a change of government in 1997. Given these matters the Tribunal does not accept that there is any real chance the applicant will face difficulties should she return as a result of the death of her brother or court processes that followed from this. The Tribunal has also considered that the applicant wife's husband has claimed a close connection with the Democratic Party. Above the Tribunal has found that the applicant husband does not face a real chance of persecution because of her husband's or indeed her own political opinion. The Tribunal notes that the applicant wife's brother has provided a letter in support alleging that her parents still receive threatening telephone calls. Again however they are still in Albania and the Tribunal does not accept that they would remain there if they were really being threatened. Indeed the letter goes on to indicate that the applicant wife's brother is doing his best to support them and that his parents have advised him not to return whilst criminals are in power. In the Tribunal's view the difficulties that the authorities have had in controlling crime represents the real reason behind this brother's migration to Austria and the Tribunal does not accept that the applicant wife's parents are at any risk." In conclusion, the Tribunal Member was not satisfied that the applicant wife would face persecution for a Convention reason if she returned to Albania. 13 An amended application for review was filed in Court on 15 May 2002. The grounds were as follows: "The Tribunal did not observe the procedure that were required by s 476(1)(a) or failed to take account of relevant considerations or made an error of law under s 476(1)(b), (c) or (e) of the Act or the Regulations in respect of the making of a decision."

Grounds of review 14 The live issues before the Court, following both written and oral submissions, can be summarised as follows: (i) Did the Tribunal Member address and was he obliged to address, in light of the circumstances, whether the applicant wife was persecuted wholly or in part by reason of her membership of a social group, namely her family. If there was such a failure, did it result in an operative error having regard to the Tribunal Member's reasons? (ii) Did the Tribunal Member fail to appreciate and deal with the applicant wife's claim of an imputed political opinion as a result of her involvement in the prosecution and conviction of high-ranking members of the former Communist regime and that this would give rise to a well-founded fear of persecution for a Convention reason? Was this an operative error? (iii) An additional ground for review was asserted in respect of an alleged failure by the Tribunal to comply with the requirements of s 424 of the Act, by failing to take into account information provided by the applicant wife.

Claim of a blood feud 15 In respect of the applicant wife's claim of persecution arising from her membership of her family, counsel for the respondent submits that the applicant wife specifically disavowed any claim of a "blood feud" in a letter addressed to the Tribunal and dated 12 February 2001. This letter was provided subsequent to the hearing before the Tribunal and was made at the request of the Tribunal Member, who was seeking additional material in respect of both applicants. The letter was signed by both applicants. It contained the following comments in respect of the applicant wife, under the title "Issues raised during Fatmira Pojani's Review Tribunal hearing that require clarification": "The term blood feud was used during the hearing in regards to specific socialist party members seeking revenge because I lobbied to have my brother's (Besnik Ceka) death investigated. As stated at the hearing, five people were found guilty of my brother's death and these were Arenid Shyti, Deputy Interior Minister, Xhemal Dymylja, Chairman of Shkodra's Socialist Party, Taci, Papare, and Cela were senior members of the police force. Shyti was sent to jail and has now been released and holds a government position. Xhemal Dymylja died in jail. I believe Shyti's and Dymylja's sons will seek revenge if I return to Albania, however it would be incorrect to call this a blood feud. This hostility is not familiar but politically motivated, as I have taken a public stand against the violence used by the Socialist Party and communist government. One of Dymylja's sons was appointed a prosecutor (Interior Ministry investigator) in 1997 and I believe would submit a false report about my husband and I to a judge." (emphasis added) 16 The respondent submits that, in any event, even if the applicant wife were found not to have disavowed this claim, the Tribunal was not satisfied that she or her family were being targeted because of a blood feud. The Tribunal Member's reasons (set out at [12] above) for this finding were on the basis that he was not satisfied that the example of terrorism given was anything but a random act; the fact that the applicant wife's parents have remained in Albania indicated that the claim of a blood feud was not convincing; nor was the applicant wife's claim that they would not attack her parents but only the younger generation. Further, the Tribunal Member considered it "most improbable" that events in 1991 and 1992 which did not cause her to flee then or for which she was not harmed, would cause her harm now if she returned to Albania. The Member did not accept that the applicant wife's parents were currently at any risk. 17 Counsel for the applicants submitted that, in the complete context, Mrs Pojani had not expressly eschewed the basis of her claim of a blood feud but had placed before the Tribunal an additional matter for consideration, namely that she faced persecution because of an imputed political opinion. Further, it was submitted that the family connection is a matter which was of such a nature that it was inescapable for the Tribunal not to consider the applicant wife's membership of that family and whether she had a well-founded fear of persecution based on that membership. 18 On one view, the applicant wife's letter was not designed so much as to disavow a claim of persecution in respect of a blood feud as an attempt to avoid the Tribunal construing her claim too narrowly and to have the Tribunal take into account the claim of persecution based on imputed political opinion. However, whether this was what the applicant meant or not, in my opinion, the Tribunal Member did in fact address the claim of a blood feud (which would appear to comprehend the notion of persecution for membership of her family) in his reasons and expressly found against the applicant wife on this claim, for the reasons set out above at [12]. Whilst these reasons appear considerably robust, considering the risks that may be involved, nevertheless there was material that the Member referred to that supports his view. There is no legal basis in this regard on which it would be appropriate for the Court to intervene.

Imputed political opinion 19 The applicant's second claim was that the revenge that she feared was politically motivated as a result of her stand against those involved in her brother's death. The Tribunal either accepted or did not deny the following matters appearing from the materials: (i) the imprisonment of various prominent Socialist Party members as the perpetrators of her brother's death, and a culture of revenge in Albania; (ii) the death in custody of one of the perpetrators of her brother's death, whose son might be motivated to seek revenge; (iii) the specific notoriety, including likely imputed political opinion, attained by the applicant wife through, among other things, the national televising of her brother's trial and her position as the family spokesperson; and (iv) whether the applicant wife had a well-founded fear of persecution due to her possibly imputed political opinion. 20 Counsel for the respondent submits that these considerations were taken into account by the Tribunal Member, but that the Member's findings indicated a rejection of the view that there was a reasonable claim that the applicant wife would be targeted for her imputed political opinion: · The Tribunal Member accepted that those responsible for her brother's death in 1991, were tried and imprisoned but did not accept that the applicant wife would be targeted for her part in bringing about such imprisonment. · The Tribunal was not required to make specific findings as to the prominence of those imprisoned.

· The Tribunal Member was not satisfied that the applicant wife or her family were being targeted by any group as part of the alleged culture of revenge. · The Tribunal Member was not convinced that the terrorist group alleged to be seeking revenge for their fathers, would target the applicant wife in particular. · The Tribunal had referred to the fact that one of the terrorists had a close connection with Hajredin Shyti. · The fact that the father of one member of the group had died in gaol was not a matter that the Tribunal was specifically required to address. 21 Further, the respondent submits that, in any event, even if it were found that the Tribunal Member had failed to take certain factual matters into account, the failure to do so does not give rise to an error of law or jurisdictional error in the necessary sense. Reference was made to in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [73] per McHugh, Gummow and Hayne JJ. The respondent also referred to Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 in which Allsop J (Heerey J agreeing) said at [78] - [79]: "Once it is accepted that the Tribunal dealt with the subject matter or element of the claim, it becomes apparent that the real complaint of the appellant must be that the Tribunal failed to expressly deal with the evidence referred to in the letter of 19 November 1999 and should have, somehow, preferred that material to the countervailing evidence (which it was accepted to exist) which supported or tended towards the position adopted by the Tribunal in the emboldened paragraph referred to in paragraph [69] above. Thus expressed, it becomes plain that it cannot be a question of the failure to take into account a consideration made compulsorily relevant by the Act or regulations: see Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 and Yusuf, supra. Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction (as to which issue see generally and not exhaustively, Minister for Immigration & Multicultural Affairs v X [2001] FCA 858; Minister for Immigration & Multicultural Affairs v Tedella [2001] FCA 832; Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 736; Chhour v Minister for Immigration & Multicultural Affairs [2001] FCA 911; Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929 and Thirukkumar v Minister for Immigration & Multicultural Affairs [2001] FCA 864) they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for claim for asylum are addressed. It may be that if the element or integers of the claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed. However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim." (emphasis added) 22 With respect, I agree with Allsop J's approach in Paul. I am in any case bound by it. The question of whether the integers of a claim have been addressed in the present case is a difficult one and a matter for judgment, based on the particular circumstances. What is involved is a consideration, in light of the evidence, of whether a failure to refer to some evidence as to a particular matter, or a failure to deal at all with some factual matter, amounts to failure to deal with one of the necessary ingredients of the claim. The task for the Court is to determine on which side of the line the matter falls in the particular case. In W396/01 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 103 at [35] their Honours, Black CJ, Wilcox and Moore JJ made the following comments about the Tribunal's role in reviewing an applicant's claims for refugee status: "Nonetheless the scope of Tribunal's review task is not limited by the case articulated by an applicant. The Tribunal should look at all the evidence and material that it has not rejected and give consideration to a case which it might reasonably raise, notwithstanding that such a case might not have been contended for by the applicant. This obligation on the Tribunal was explained by Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294- 295 where his Honour held that it is necessary to "consider all the relevant possibilities by looking back at the entirety of the material placed before [it]", and the decision-maker must "[stand] back from the particular grounds and consider ... the case in its entirety" (See also Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at para 13 and the authorities cited there)." 23 In the matter before me, there was a specific claim of persecution made arising from both an actual and an imputed political opinion - see [15] above. But the imputed political opinion claim could, on the materials before the Tribunal be, "or …be seen as, based on more than one foundation" as Allsop J (Spender J agreeing) put it in Htun at [42]. The first foundation is that, straightforwardly an honest Socialist Party sympathiser might deduce from Mrs Pojani's outspokenness in relation to the trial of her brother's killers that she opposed that party. That foundation for a claim of persecution for reasons of imputed political opinion was expressed by Mrs Pojani in her post-hearing letter of 12 February 2001 (set out at [15] above). The Tribunal's findings about lack of participation for fear of persecution for reasons of actual political opinion would necessarily also appear to be applicable to a claim of imputed political opinion so founded. 24 The other foundation, although raised by the materials, relies also upon not shutting one's eyes to regrettably fairly common experiences. It is a situation far from unknown that persons in positions of political power may cause trouble for people who have opposed them (or persons close to them) by pretending using the excuse that the person targeted is a political enemy: persons labelled as "enemies of the state" may simply be people who have managed to enrage a powerful person. If as happens, the person in power justifies proposed persecution to others in official positions as dealing with a political enemy, and thereby causes those others to act, then the resultant State agency's persecution is for a reason of imputed political opinion even though the particular individual malefactor is, in reality, not so motivated. 25 As set out above, the Tribunal's conclusion as to the applicant wife's imputed or actual political opinion was simply, "The applicant wife does not face a real chance of persecution because of her husband's or indeed her own political opinion". There was no discussion by the Tribunal denying the applicant wife's assertions that she was at risk from perversion of governmental processes by those of her brother's killers released from prison or from their influential close relatives. Counsel for the applicants submits that this does not sufficiently address, or show that the Tribunal has dealt with, the second foundation for the applicant wife's potentially imputed political opinion arising from the events surrounding her brother's death. 26 The Tribunal's reasons in respect of the applicant wife are short in comparison with the reasons concerning the applicant husband: apparently the applicant husband made most of the running before the Tribunal. A reasonably generous approach must be taken as to the manner of expression of the Member. On one possible view, the failure to make it abundantly clear that an integer of her claim relating to possible imputed political opinion in the second way indicated had been considered, may be no more than a matter of unfortunate lack of expression, but would not amount to an error of law. On the other hand, the brevity of the Member's reasons as to the wife's claim, and that he did not go on to consider the implications, in the factual circumstances asserted, of her potentially imputed political opinion, may give rise to the conclusion that the Member either did not fully understand or did not address the claim of persecution on account of imputed political opinion, as so founded. There is often, in practice, no readily discernible distinction between whether a decision-maker has considered an integer of a claim but merely not referred to particular or further evidence that may have supported it and whether an integer has not been addressed because the decision-maker has failed to consider, or give reasons rejecting, a sensible, reasonable (and, here, even a powerful) way in which that integer might be made out on the evidence. In such cases, whether there has been a constructive failure by a decision-maker to exercise jurisdiction will ultimately be a matter of impression c.f. Miller v Australian Industrial Relations Commission (2001) 108 FCR 192 at [49]-[51]. 27 The remarkable facts about the applicant wife's case are: (1) it appears that she was instrumental in having very senior officials of the former Communist government put in gaol, where one of them died; (2)(a) One of those officials now holds a senior position in the current Albanian government whilst the son of the deceased official, is now a prosecutor (b) Three of those imprisoned were police and there was nothing to suggest that the usual police esprit de corps did not exist (c) Others of the imprisoned men's relatives have shown a propensity and capacity for extreme violence against even people who could not be perceived to have done them any wrong. 28 There was extensive country information to suggest that, despite some improvements, Albania is still plagued by corruption among the judiciary and its lack of independence from the executive. Whilst it might be unthinkable in Australia that a Crown Prosecutor should, on a pretence, illegally harm someone who had caused his father to be put, and subsequently die, in gaol, it might be a brave fact-finder who would have that view of Albania, given the probable high status of a prosecutor in the inquisitorial system there prevailing, the context of a cowed and corrupt judiciary, and that country's unfortunate recent history generally. As to the ex-police officers, there was material to suggest that the police force was poorly trained and ill-disciplined, according to some respectable country information. 29 On this material, the Tribunal Member, had he turned his mind to the relevant integer of the applicant wife's claim, would have been entitled to infer a reasonably possible chance of relevant state officials asserting that she, a likely object of their enmity upon whom revenge might well be sought, would be an enemy of the State, and that persecution of her as such might well follow. It may well be that, had the Member considered this particular possible foundation of a claim of feared persecution, he would have needed to consider more closely the potential means and actual agents of such persecution. Had the Member done so, he may well not have been so quick to reject Mrs Pojani's fears of serious official malpractice against her. The Tribunal did not explain why the relevant individuals should all confidently be assumed to be either unwilling or unable to harm her. This tends to a conclusion that the Tribunal Member did not understand that their potential to instigate persecution of her might have been more readily realised after the Socialist Party's return to power in 1997, by the means of pretending her to be a dangerous political enemy. Their position and their and Mrs Pojani's actual history might also have indicated a greater willingness and/or ability thus to harm her rather than her parents. 30 In the end, it seems to me that the Tribunal did not address an integer of Mrs Pojani's claim and that it cannot be said that the Tribunal's findings and reasoning on other integers necessitated the rejection of the claim so far as it depended upon such integer. The failure to consider the applicant wife's claim in its entirety, is a failure on behalf of the Tribunal to review the application in accordance with the Act and as such, the Tribunal has committed a jurisdictional error and the decision was not authorised by the Act: see s 476(1)(b), (c) or (e) and McHugh, Gummow and Hayne JJ in Yusuf at [81]-[84].

Section 424 of the Act 31 It was also contended on behalf of the applicant wife that the Tribunal had erred because the Tribunal Member failed to comply with s 424 by failure to have regard to the information submitted by the wife concerning her fear of persecution as a political target: the Tribunal had invited the applicants to provide any additional information after their hearing on 8 February 2001. The substance of the information provided by the applicants in respect of the applicant wife's claims is set out at [15], but it is said that the Tribunal failed to have regard to this information. 32 Section 424 relevantly provided: "(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information,

the Tribunal must have regard to the information in making the decision on the review. (2) Without limiting subsection (1), the Tribunal may invite a person to give additional information." (emphasis added) 33 I accept the submissions of counsel for the respondent as to the proper construction of s 424 of the Act. That is, that the word "get" means information that the Tribunal obtains on its own initiative and not material received or obtained from other sources, such as the applicant in the proceedings: see Applicant "F" v Minister for Immigration and Multicultural Affairs [2001] FCA 304 per Carr J at [31]-[32], which was cited with approval by Merkel J in Abedi v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 186 at [20]-[22]. 34 There is no substance in that alleged ground for review.

Disposition 35 In my opinion, the Tribunal failed to consider the applicant wife's fear of persecution for reasons of possible imputation to her, in a particular way, of a political opinion and this could have led to a different result. On this basis, the application should be allowed and the matter remitted to the Tribunal, differently constituted, for reconsideration according to law. I will hear the parties as to costs. I certify that the preceding thirty five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate: Dated: 17 October 2002 Counsel for the Applicant: Ms K Anderson Counsel for the Respondent: Mr A Mosely Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 November 2001 and 15 May 2002 Date of Judgment: 17 October 2002