Shehu v Minister for Immigration & Multicultural Affairs

THE APPLICANT'S CLAIMS 5 The Tribunal accepted that the applicant's family had a long history of political involvement in Albania. His maternal grandfather had been persecuted and killed in 1943 by the communists due to his support for a free Albania. His father had become involved in political activities some time after that, and in 1953 was arrested and then imprisoned for 10 years for agitation against the state and for anti-state propaganda. He was released in 1960. He suffered further harassment in about 1980 for criticisms of the communist government at the time, and was said to have lost his job in a factory as a result. His father then worked as a farm hand for some years before he retired. The applicant claimed that as a result of the political activities of his grandfather and of his father, he was classed as a "Kulak" and was denied education and a chance of a good job. He did, however, complete schooling to year 12 and did obtain employment and participated in national service thereafter. 6 The Tribunal also accepted the applicant's claims that, from 1994, he had become involved in a minor political party called the Legality Movement (also referred to as the Legality Party). Its objective is to restore the monarchy in Albania. It also accepted that, as part of his political involvement, in 1997 and 1998 the applicant participated in a number of peaceful anti-government demonstrations, and in a demonstration on 14 September 1998 which became violent and involved significant property damage. There were a number of arrests as a result of that demonstration, including the arrest of the leader of the Legality Movement. 7 The applicant claimed that, as a result of his political activities, he too was targeted by the secret police following the demonstration on 14 September 1998. He claimed that the secret police came to his family home with authority to arrest him, but he managed to avoid arrest because he had been forewarned by a friend in the police of the imminent visit of the secret police. He also claimed that he then went into hiding, and whilst in hiding a shop which he owned had been burnt down by the authorities as a warning to him and to others to cease political involvement. Included in the material upon which the applicant relied in support of his claim was a letter dated 3 February 1999 to the applicant, apparently from a Minister of the Royal Court of Albania, then resident in the Republic of South Africa. The King had returned to Albania from exile in South Africa for a visit in 1997, and it was claimed that the applicant had played a role in organising part of that visit. That letter (translated on 15 February 2001) urged the applicant to end his political activities in Albania and to leave Albania urgently because his life was in danger due to his support for the restoration of the monarchy. He also provided to the Tribunal a letter from his father dated 9 December 2000 which said that the secret police persistently visited the family home looking for the applicant because he was perceived as a loyalist, and that they had threatened the applicant's family if they did not disclose his whereabouts. Consequently, the applicant feared that he would be persecuted for his political beliefs if he were to return to Albania with his family. 8 The applicant also claimed that Albania now is a lawless country, particularly since 1997 following the election of the socialist government. There were criminal gangs operating largely uncontrolled in Albania. He claimed that those criminal gangs might target him at the instigation of the government, and alternatively that his fear of criminal gangs was "Convention related" because the government was unwilling or unable to take steps to control them and he was unable to complain to the government of their conduct because of their involvement with the local authorities and the consequences to him of complaining to the government about them.

THE TRIBUNAL'S REASONS 9 Although, as indicated above, the Tribunal accepted much of the applicant's claims as to his personal and family history, it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention, and consequently that he satisfied the criterion specified in s 36(2) of the Act. It considered that there was no real chance that the applicant would face persecution because of his political opinion or for any other Convention reason if he were to return to Albania, so he did not have a well-founded fear of persecution for a Convention reason. 10 The Tribunal did not accept that the authorities had sought to identify and arrest the applicant following his involvement in the demonstration on 14 September 1998. It gave a number of reasons for that conclusion. Firstly, it considered that the applicant, if the target of the police, would have been arrested at that time rather than after the event. Secondly, it considered that, if the authorities had been desirous of arresting the applicant, they would have been able to locate him and arrest him between 14 September 1998 and May 1999 when he left Albania ultimately to arrive in Australia. It observed that, although he claimed to some degree to have been in hiding, he had married in an apparently normal way in December 1998, and that his marriage indicated that he was "living a normal life at that stage and was not in hiding as he has claimed". It also had regard to the fact that he claimed to the Tribunal, but not when he had been earlier interviewed, that he had been stopped in the street a few days after the demonstration to inquire as to his role in relation to it. It also had regard to the fact that the letter confirming his involvement as a member of the Legality Movement, dated 8 October 2000 and provided to the Tribunal, made no mention of the fact that the authorities wished to arrest him although it referred to his involvement in demonstrations in 1997. 11 In reaching that finding of fact, the Tribunal also had regard to independent country information about Albania that: " … indicates that the Legality Party is an extremely marginal force and that the Socialist Party has realised that they can govern with the support of the majority and is too concerned about governing to spend a great deal of effort harassing political opponents." 12 The Tribunal also discounted the two letters to which reference is made in [7] above. It concluded that the letter from the Minister of the Royal Court of Albania was contrived. It did so on three grounds. The applicant did not claim any particular consequences had been visited upon him as a result of his involvement in the royal visit. There was no material to indicate any such involvement now involved any risk to him should he return to Albania. Finally, it referred to the country information about corruption and the prevalence of fraudulent documents in Albania. It also considered that the claim made by the applicant's father was fanciful and contrived. It did not consider that the police would have persisted in seeking the applicant after he had been absent from the country for 18 months, particularly having regard to the fact that he remained in Albania between September 1998 and May 1999 without being arrested by the police. 13 The Tribunal also rejected the claim that the burning down of the applicant's shop (or shops) had anything to do with his membership of the Legality Party or his political opinions. It reached that view based in part upon independent information about Albania that the Legality Party is a small opposition party which is able to operate freely and without particular concern to the ruling Socialist Party. It also observed that the burning down of the applicant's shop would not have any effect upon his ability to operate as a Legality Party member. It did not accept (for reasons which are not expressed) that the police may wish to have burned his shops down as a warning to him and to others. It noted, however, that he did not claim to have any involvement in inciting the riot at the demonstration on 14 September 1998. It noted also his ability to marry apparently whilst leading a normal life, without being a target for political rivals or criminal gangs. 14 Finally, on this aspect of the applicant's claim, the Tribunal indicated, on the basis of independent information about Albania, that the arrest of the leader of the Legality Movement and others in the demonstration on 14 September 1998 was due to the violence which then occurred and to the accusation of inciting a riot, and that in the circumstances the arrests were legitimate and non-politically motivated arrests. That information did not indicate that the leader of the Legality Party was targeted because of his membership of that party. 15 The Tribunal also rejected the applicant's claim of being targeted by criminal gangs or violent elements in Albania because of his political beliefs. It said: "The Tribunal notes that violence remains a problem in Albania. The applicant has claimed he is at risk because of his Legality Party membership. The Tribunal has not accepted above that this is the case. There is no evidence aside from these claims that the applicant is at any particular risk of such violence. As a result the existence of such violence does not satisfy the Tribunal that the applicant faces a real chance of persecution for a Convention reason if he now returns."

THE GROUNDS OF REVIEW 16 There were two grounds of review argued on behalf of the applicant. The first was that the decision of the Tribunal was induced or affected by actual bias, so as to enliven the ground of review available under s 476(1)(f) of the Act. The second was the decision involved an error of law in concluding that the applicant's fear of criminal gangs was not Convention related, so as to enliven s 476(1)(e) of the Act. The contention involved two separate points. It was submitted that because the Albanian police were somehow associated with the criminal gangs, and their activities were not controlled by the authorities because they were unable or unwilling to do so, the operations of the criminal gangs "take on a political tenor" so that their targeting of the Albanian community generally including the applicant amounted to persecution for a Convention reason. The alternative argument was that the Tribunal had failed to ask whether the applicant would be targeted by criminal gangs for reasons of his political background, in the light of associations between the criminal gangs and the authorities.

bias 17 There is no issue between the parties as to what constitutes actual bias. In Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 Hayne J (with whom Gleeson CJ and Gummow J agreed) discussed at [178 - 187] the nature of bias and explained that any analogy between judicial processes and administrative decision makers such as the Tribunal on that topic is inapposite, because of different features of the respective functions and decision making processes. His Honour pointed out that bias may be occasioned by interest in the outcome by affection or enmity, or by prejudgment. In this matter, the applicant complains of prejudgment on the part of the Tribunal. 18 Hayne J said: "Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case." 19 In this matter, the applicant contends that the Tribunal did not give fresh and independent consideration to his claim, whatever its merits and whatever its individual circumstances. Such prejudgment may be subconscious, but it must be real. It is not sufficient that the Tribunal has formed a preliminary conclusion about an issue. In this case of the Tribunal, it may come to consider the applicant's claims with a background knowledge about circumstances pertaining to Albania, derived from its own reading and from things it has learned in other hearings. In Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71, Burchett J said at 127: "In my opinion, the statute, when it used Devlin LJ's expression "actual bias", substituted a test that looks to whether the Tribunal has, at least in some respect, prejudged the case, so as to be unable or unwilling to decide it impartially. I say "at least in some respect" because the statute extends to the situation where "the decision was … affected … by actual bias". The observation that it is sufficient that a decision be affected by bias adds weight to the conclusion of Finkelstein J in Bilgin, with which I agree, that actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real. Nevertheless, a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach. It would be a sad reflection on administrative tribunals, and certainly on courts which exist in the name of justice, if it were to be seen as other than exceptional." It is necessary, therefore, to consider whether the Tribunal prejudged the applicant's claim so that it was not open to persuasion in the light of the facts and circumstances and arguments relevant to them. 20 The bias by prejudgment was, it was argued, demonstrated by the Tribunal having "steadfastly refused" to evaluate documentary material supportive of the applicant's claims and having looked only for independent material about Albania inconsistent with his claims. 21 The Tribunal referred extensively to independent information about Albania in its reasons. Included in that material was a report of the Research Directorate, Immigration and Refugee Board, Ottawa dated 20 April 2000 (the Ottawa report). The use of the Ottawa report by the Tribunal was said to demonstrate the Tribunal's prejudgment. It contained a summary of the views of investigators into circumstances in Albania, including concerning the Legality Movement. One of the reasons the Tribunal rejected the applicant's claim that the authorities endeavoured to arrest him after the demonstrations of 14 September 1998 was expressed as follows: "Secondly the country information above, particularly from Canada, indicates that the Legality Party is an extremely marginal force and that the Socialist Party has realised that they can govern with the support of the majority and is too concerned about governing to spend a great deal of effort harassing political opponents. Even if the applicant has a close association as claimed with the leader of the Legality Party the country information indicates that the leader's difficulties arose during a demonstration. It does not indicate that the leader was otherwise targeted because of his membership of this party and states that small opposition parties are able to operate freely." The source of those views appears to be the Ottawa report. It contained the following passages: "Prof. Fischer stated that it "might very well be true" that political violence has decreased in the past year, although he maintains that his sources indicate that it is still a significant factor (15 Mar. 2000). Fischer is of the view that what political violence there is not political violence directed by the cabinet, it is essentially lower level violence that is motivated by a combination of political and personal considerations (ibid.). … For the most part, Fischer stated, the small opposition parties in Albania are able to function freely; they all have newspapers that are freely published and distributed (15 Mar. 2000). These parties would generally be ignored by the SP (ibid.) Prof. Pano stated that political repression, recrimination and vengeance are very serious problems, but that they are beginning to be addressed, especially at local levels (23 Mar. 2000). There is some cooperation between some local officials, although problems still do occur (ibid.)." The Tribunal did not refer to the views of Professor Pano, as there recorded, in the "Findings and Reasons" section of its decision, although they are recorded accurately in the Tribunal's review of country information about Albania. That is said to demonstrate the selective use of documentary material. The second illustration of selective use of independent information concerned the Tribunal's observation, as one of its reasons for declining to place any significance upon the arson of the applicant's shop or shops, that small opposition parties, such as the Legality Movement, are able to operate freely. Again, it contended there is a failure to reflect the views of Professor Pano on that topic as contained in the Ottawa report. The failure of the Tribunal to acknowledge that destruction of assets by the authorities may serve as a warning and a threat to political activists not to participate in the political process is also said to demonstrate prejudgment on the part of the Tribunal. 22 The Ottawa report is an extensive document. It has a section dealing with the treatment of opposition parties by the Socialist Party. The passages from the Ottawa report quoted at length in the Tribunal's reasons have not themselves attracted the contention that they have been selective, that is that they are chosen from a point of view prejudged adversely to the applicant. They include the parts of that text containing Professor Pano's comments. No other particular country information was identified in submissions which is directly supportive of the applicant's claims. It is a big step to take in those circumstances to infer prejudgment on the part of the Tribunal from the fact that it has not expressly referred to the views of Professor Pano in the "Findings and Reasons" section of its decision. In that section of its decision it has not quoted expressly any part of the Ottawa report. It has referred in general terms to conclusions which that text is capable of supporting. 23 I am not persuaded that the use to which the Tribunal has put the Ottawa report, in the circumstances, demonstrates prejudgment on its part. The views which the Tribunal has adopted are those attributed to one of the sources in the Ottawa report. The Tribunal was entitled to have regard to that information. It refers also to the other country information about Albania, about which the applicant has made no express complaint. That information is not so explicit, but presents a picture of progressive reduction in targeting of political opponents after the 1997 election. Moreover, that broad picture which the Tribunal has drawn from the Ottawa report is only one of the reasons for reaching the views which, the applicant contends, are the result of prejudgment. 24 Whilst the applicant may not accept the validity of those other reasons, the fact that they have been given, and are not themselves irrational, tends against the drawing of any inference of prejudgment. That inference is also not supported by review of the Tribunal's reasons overall. The Tribunal has referred, apparently fairly, to the information provided by the applicant to the delegate of the respondent in his initial application for the visa and to the Tribunal. Its recital of the course of the hearing shows that it took pains to identify to the applicant matters of concern upon which it sought the applicant's response. It has referred to an extensive range of independent country information about Albania. It has accepted much of his evidence about the past experiences of himself and of his family. Where it has not accepted his evidence, it has identified the particular evidence and given a reason or reasons for that, including the ability of the applicant to have married in December 1998 apparently in a normal environment. It appears to have explored with the applicant the occasion of his marriage to discern if the applicant suggested that the marriage took place covertly due to fear of the authorities. 25 In the light of those matters, I do not accept that the Tribunal was biased in the way alleged by the applicant. I reject that ground of review.

ERROR OF LAW 26 The second ground of review is expressed in two ways. I do not accept that the Tribunal erred in law in not being satisfied that the activities of the criminal gangs were directed at the applicant for a Convention reason, namely his political involvement. That was a finding of fact open to the Tribunal. It observed that, apart from the applicant's own assertions, there was no evidence to support that claim by the applicant. The independent information about Albania does not provide such evidence. It suggests the widespread unlawfulness in Albania is not aimed at the applicant or particular persons or groups of persons for a Convention reason. 27 The principal argument on this ground is more complex. As I understood the argument, it proceeds on the assumption that the motives of the criminal gangs for selecting those against whom they inflict, or may inflict, violence are not dictated by any Convention related reason. They are random attacks. It is also accepted that the Albanian government does not condone those attacks. Even if the Albanian government is unable to control those gangs, the consequent vulnerability to lawlessness to which the applicant would be exposed would be the same as that to which any other resident in Albania would be exposed. The argument is, in the face of that conclusion of the Tribunal, that because local police are sometimes part of the criminal gangs or choose to ignore their activities, the unwillingness or inability of the authorities to take steps to control such criminal activities somehow becomes Convention related. It is argued that the "non-response" of the authorities to any complaint about criminal gang activities becomes "political" and so Convention-related because the complaint itself is a "political" act. 28 The applicant sought to draw support for that contention from the decision of Davies J in Minister for Immigration & Multicultural Affairs v Y (15 May 1998, unreported). The visa applicant in that case was found to have witnessed a shooting incident in which local police were complicit and to have reported their involvement to the authorities. He was targeted by local authorities as a result, and was refused protection by the authorities. The Tribunal found that his stance against criminal activity of police officers was an expression of a political opinion against a pervasive aspect of the Brazilian state, and that the consequent targeting of him and his family amounted to persecution for the Convention reason that he was a member of a particular social group, namely his family. Davies J observed that the Tribunal sought: " … to determine whether Y would be looked upon merely as a campaigner against corruption who was at risk of retribution by individual corrupt officials, or whether corruption was so much a part of government and of the exercise of State power in Brazil that opposition to it could be regarded as opposition to authority as it was organised and operated in Brazil." It concluded that the views and actions of the visa applicant would have been likely to be regarded as contrary to the best interests of the state and of its police force. Davies J decided that that finding was open to the Tribunal, so that the visa applicant was a danger not only to the policemen involved but to the police force in general and to the manner in which power was exercised in Brazil, and that the harm already experienced by the visa applicant and his wife was likely to represent government coercion in the face of a perceived danger to the operations of government instrumentalities by his actions. His Honour said:: "In the context of the Refugees' Convention, an opinion could be thought to be a political opinion if it were such as to indicate that its holder, the claimant for refugee status, held views which were contrary to the interests of the State, including the authorities of the State. A person may be regarded as an enemy of the State by virtue of holding and propounding views which are contrary to the views of the State or its Government, or which are antithetic to the Government and the instruments which enforce the power of the State, such as the Armed Forces, Security Forces and Police Forces or which express opposition to matters such as the structure of the State or the territory occupied by it and like matters." 29 That case, in my view, is removed from the present circumstances. The independent country information recorded by the Tribunal refers extensively to the attempts by the Albanian government to establish and maintain law and order, and to break up the criminal gangs operating there, and to its limited successes in that objective. The material does not support the view that the Albanian government itself supports corrupt police officers or condones police officers at local levels participating in the activities of criminal gangs. It refers to special units of the government appointed to investigate and prevent such corruption. The views of the applicant opposed to unlawfulness, and to local police participation in unlawfulness, are not contrary to the views of the Albanian government and are not antithetical to its interests. The Tribunal in this matter apparently took the view that the criminal activities are not part of the exercise of State power in Albania. It regarded the risk of violence to which the applicant might be exposed if he returned to Albania as being the same as that of any other resident of Albania, and to be unrelated to any Convention reason. That finding was open to it. 30 The applicant, in the detailed submission to the Tribunal on 22 March 2001 from his advisers, did not make any claim that he feared persecution because he was a person who might complain to the authorities about criminal gangs or might expose police involvement in those gangs. That document states: "My client asserts that, although he is wanted by the authorities because of his involvement in the 1998 demonstrations, he is of particular interest to the authorities because of his high involvement in the Legality Movement. He is also known to be a member of an anti-communist family, who are highly critical of the governing Socialist Party. Accordingly, Mr Shehu claims that the persecution which he fears upon his return to Albania is for reasons both of his political opinion and his membership of a particular social group, namely the Legality Party." It further claims: "It is my client's submission that he is a member of a particular social group. That particular social group is the Legality Party, or Legality Movement. This movement is a political party, the members of whom share a common purpose of opposing the governing socialist party, and restoring the monarchy." The Tribunal rejected that claim and that the criminal gangs might target the applicant for reason of his political affiliations. However, the applicant's claim was extended beyond that document. 31 In his claim in the initial visa application the applicant said that he might be mistreated if he were to return to Albania: " … because of the knowledge I have of the connection between the government and various criminal elements in various cities of Albania." After the letter from his advisers to the Tribunal on 22 March 2001, the applicant on 5 April 2001 sent a further "Statement" to the Tribunal. He claimed that he left Albania because his life was in danger because of the police and because of: "The different criminal groups wich [sic] were and are associated with the government …" That statement details a number of persons or families of prominence in Albania who, he claims, are associated with criminal activities. It asserts that the applicant has spoken publicly and adversely about that corruption in the manner that the government came to, and retains, power including by criminal conduct, such as that perpetrated through criminal gangs. I consider that the claim so made extends his claim beyond that of direct persecution for his political opinion. It could also represent the claim that the applicant fears persecution because he claims that the government is corrupt and that he may be the subject of criminal violence initiated and condoned by the state because of that position. In that way, the applicant may be seen to have made a claim similar to that which the Court addressed in Minister for Immigration & Multicultural Affairs v Y. 32 It was then argued that the Tribunal had failed to address that claim. If it had failed to do so, that failure may constitute a ground of review available under s 476(1)(b) or (e) of the Act: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1. 33 The Tribunal recorded the applicant as saying that he left Albania for two reasons: the police are trying to arrest him, and the threat of criminal groups. It did have regard to his statement of 5 April 2001 which claimed that he was at risk from both the police and criminal groups associated with the government. It then, in my view, did address that aspect of the applicant's claim. The decision of the Tribunal includes the following: "The applicant concluded in the hearing by emphasising that he had two fears. One fear related to criminal gangs. Whilst it is the case that the authorities have had difficulties in controlling criminal gangs, particularly in the aftermath of the chaos in early 1997, such a fear is not of a Convention nature and can be characterised as a fear relevant to the whole of the population of Albania. The applicant has added in addition to this that the gangs were targeting him because of political involvement and because of the links of such gangs to the government. However, given the Tribunal's findings above that the authorities were not after him for his political opinion and the country information about the Legality Party, the Tribunal does not accept that criminal gangs in Albania would be put up to targeting him. As a result the Tribunal does not accept that criminal gangs would target the applicant because of his political involvement." 34 The independent country information referred to by the Tribunal does not contain any material to indicate that the Albanian government itself, or its instrumentalities such as the police, as distinct from individuals, participates in criminal conduct and that an instrument of government might itself be an instrument of persecutory conduct by encouraging or condoning criminal acts directed at those who have views opposed to such corruption or who take action to purge those instruments of corruption.

35 In that passage the Tribunal has recognised the claim that he may be targeted by criminal gangs as an instrument of state oppression because of his views critical of the Albanian government. It is not appropriate to treat the expression "political involvement" in that passage in a way confined only to his role as a member of the Legality Movement, without treating it as incorporating his general political views adverse to the government. His political views, as he explained them to the Tribunal, constitute the combination of views he holds and expresses concerning the legitimacy and propriety of the government's exercise of power. As the Tribunal has not accepted that the Albanian government is "after him for his political opinion", as the Tribunal said, the nexus between the vulnerability to lawlessness and the fulfilment of an objective of the government (which was found to exist in Minister for Immigration & Multicultural Affairs v Y) was not found to exist in this matter. For reasons already given, I do not consider that the Tribunal erred in not being satisfied that the applicant had a well-founded fear of being targeted by the Albanian authorities for his political opinion.

36 In the circumstances, I consider the application should be dismissed. I so order.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 31 January 2002 Counsel for the Applicant: Mr A. Gibbons