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[2002] FCAFC 279
Federal Court of Australia (Full Court)
2002-08-23
Finkelstein JJ
Original judgment source is linked above.
INTRODUCTION 1 This is an appeal from a judgment of a Judge of this Court given on 31 January 2002. The learned primary judge dismissed the appellants' application for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal"), made on 27 June 2001, affirming a decision of a delegate of the respondent not to grant the appellants a protection visa. The application was filed on 14 August 2001. 2 The first and second appellants, Albanian citizens, are husband and wife. The third appellant is their daughter who was born in Australia on 2 January 2001. 3 The first and second appellants arrived in Australia on 15 June 1999 on visitor visas. On 30 June 1999 the first appellant applied for a protection visa. Initially that application was also on behalf of the second appellant and subsequently, after the birth of the third appellant, it became an application also on her behalf. That is, neither the second nor the third appellant made specific claims to be a refugee in her own right.
The appELlants' claims 4 The appellants' claims to be entitled to protection as refugees are summarised in the primary judge's reasons. There is no need to repeat the details here. 5 It is sufficient to say that the appellants based their claims on a fear of persecution by reason of political opinion. The first appellant claimed that as a result of the political activities of his grandfather and then his father, he was classed as a "Kulak" by the then communist authorities in Albania and was denied education and a chance of a good job. 6 The first appellant further claimed (and the Tribunal accepted this) that from 1994 he had become involved in a minor political party called the "Legality Movement", which was also referred to as "the Legality Party", whose objective was to restore the monarchy in Albania. We shall refer to that organisation as "the Legality Party". The Tribunal accepted that the first appellant had participated in a number of peaceful anti-government demonstrations in 1997 and 1998 and also in a demonstration on 14 September 1998 which became violent and involved significant property damage. There were some arrests as a result of that demonstration, including the arrest of the leader of the Legality Party. The first appellant claimed that, as a result of his political activities, he too was targeted by the secret police following that demonstration. He claimed that he went into hiding and eventually, fearing persecution for his political beliefs, he left Albania. 7 The first appellant claimed that Albania was now a lawless country, particularly since 1997, following the election of the Socialist Party to government. He asserted that criminal gangs might target him at the instigation of the Albanian Government or, in the alternative, that the Government was unable to take steps to control the criminal gangs. He asserted also that he was unable to complain to the Albanian Government because of the involvement of the criminal gangs with the local authorities and the consequences to him of complaining to the Government about them. 8 The Tribunal accepted that the appellant was involved in the Legality Party. But it did not accept the first appellant's claims that the Albanian authorities wanted to arrest him. Nor did it accept his claim to having been stopped in the street shortly after the September 1998 demonstration. It gave its reasons for rejecting those claims. 9 The Tribunal also rejected a claim by the first appellant that his shop (or shops - we shall refer to them in the plural) had been burnt down by reason of his membership of the Legality Party or his political opinions. To some extent the Tribunal's decision on this aspect was based upon independent country information about Albania to the effect that the Legality Party was an extremely marginal force, that the Socialist Party has realised that it can govern with the support of another party and is too concerned about governing to spend a great deal of effort harassing political opponents. The Tribunal did not accept that the police might have wished to have his shops burned down as a warning to him and to others. It referred to the ability of the first and second appellants to marry, apparently whilst living a normal life without being targeted by political rivals or criminal gangs, during the period between the riotous demonstration on 14 September 1998 and May 1999 when they left Albania for Australia. 10 The Tribunal also rejected the first appellant's claim of being targeted by criminal gangs or violent elements in Albania because of his political beliefs. It gave its reasons for that conclusion.
the proceedings at first instance, the appeal and our reasoning 11 Two grounds of review were argued before the primary judge. These were, in essence, repeated as the grounds of appeal. It is convenient to refer to them in the same sequence as his Honour did. The first was that the decision of the Tribunal was induced or affected by actual bias and thus reviewable under s 476(1)(f) of the Migration Act 1958 (Cth) ("the Act"). The second was that the decision involved an error of law on the Tribunal's part when it concluded that the first appellant's fear of criminal gangs was not Convention-related, thus enlivening s 476(1)(e). This latter contention involved two separate points. The first was that, so the first appellant submitted, the Albanian police were somehow associated with the criminal gangs, and their activities were not controlled by the authorities because the authorities were unable or unwilling to do so with the result that the operations of the criminal gangs took on a political tenor. Thus their targeting of the Albanian community generally, including the first appellant, amounted to persecution for a Convention reason. Secondly, the first appellant complained that the Tribunal had failed to ask whether he would be targeted by criminal gangs for reasons of his political background, in the light of associations between the criminal gangs and the authorities. 12 On the bias point, the appellants argued that the Tribunal had demonstrated pre-judgment by having "steadfastly refused" to evaluate documentary material supportive of the appellants' claims, and by having looked only for independent material about Albania inconsistent with the first appellant's claims. 13 The first appellant relied upon the fact that the Tribunal did not, in that part of its reasons which was headed "Findings and Reasons", refer to the views of a Professor Pano which were set out in some information provided by the Research Directorate, Immigration and Refugee Board, at Ottawa ("the Ottawa Report"), as demonstrating the selective use of documentary material. 14 His Honour noted that, earlier in its reasons, the Tribunal had in fact set out an extensive quotation from the Ottawa Report which included the views of Professor Pano. In its "Findings and Reasons" section it had not expressly quoted any part of the Ottawa Report, but had referred in general terms to conclusions which the text earlier quoted was capable of supporting. There was no suggestion that the passages from the Ottawa Report which the Tribunal had quoted had been selective. No other particular country information had been identified in submissions which was directly supportive of the appellants' claims. As his Honour observed, it would be a big step, in those circumstances, to infer pre-judgment on the part of the Tribunal. His Honour gave other reasons, which it is not necessary for us to set out, for rejecting the assertion that the use which the Tribunal made of the Ottawa Report showed bias on the Tribunal's part. The appellant, who appeared without legal representation this morning, made submissions which in essence were that the Tribunal was biased because it had not found the political environment in Albania to be that which the appellant contended it was. In our opinion, no error has been demonstrated in his Honour's reasoning or conclusion on this point. The Tribunal's decision was not affected by actual bias. We would reject this ground. 15 His Honour then turned to the second ground of review. He rejected the submission that the Tribunal had erred in law in not being satisfied that the activities of the criminal gangs were directed at the first appellant for a Convention reason, namely his political involvement. The primary judge noted that apart from the first appellant's own assertions, there was no evidence to support that claim. The independent information before the Tribunal about Albania did not provide such evidence. It suggested that the widespread unlawfulness in Albania is not aimed at the first appellant or particular persons or groups of persons for a Convention reason. His Honour held that the Tribunal's conclusion on this aspect was a finding of fact which was open to it. We respectfully agree with that conclusion. 16 But the main argument on this ground, as his Honour noted, was more complex. That is, that the failure of the authorities to respond to any complaint about criminal gang activities became political, and thus Convention-related, because the local police were sometimes part of the criminal gangs or, if not part of them, chose to ignore their activities. The appellants argued that the Tribunal had failed to address this claim. The primary judge recognised that if there had been such a failure it might constitute a ground of review under s 476(1)(b) or (e) of the Act as constituting jurisdictional error. At the hearing of the appeal this morning the appellant also made submissions on this point. However, once again, those submissions went to the merits of the Tribunal's decision. As we explained to the appellant, it is not the function of this Court to review those merits. 17 His Honour expressed the opinion that the Tribunal had addressed this aspect of the appellants' claims. He referred to a paragraph from the Tribunal's reasons which quite clearly, in our opinion, showed that to be the case i.e. that the Tribunal had in fact addressed that claim. With respect, we think that his Honour was quite right. In our view, there is no substance in this ground. 18 In our opinion, for the reasons given by the primary judge, which we respectfully would adopt, the Tribunal did not fall into reviewable error and there was no legal error on the primary judge's part in dismissing the application. 19 We would dismiss the appeal with costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate: Dated: 6 September 2002 The First Appellant appeared in person:
Counsel for the Respondent: Ms S Maharaj
Solicitors for the Respondent: Messrs Sparke Helmore
Date of Hearing: 23 August 2002
Date of Judgment: 23 August 2002
SCAC
Minister for Immigration & Multicultural &