SVTB v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal (RRT). 2 The applicant, an Albanian, arrived in Australia on 30 September 1999. On 2 March 2001 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (the Act). 3 On 21 June 2001 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) refused to grant a protection visa. On 3 July 2001 the applicant applied to the RRT for a review of that decision. 4 On 16 March 2004 the RRT affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa. 5 On 30 April 2004 the applicant applied to this Court for a review of that decision and seeking the issue of the constitutional writs quashing the decision made by the RRT and seeking an order remitting the matter to the RRT for further hearing according to law. 6 The grounds of the applicant contained in the original application for review are: '1(a) That the person who made the decision did not have jurisdiction to make the decision. 1(b) That the decision was not authorised by the Migration Act or the Regulations. 1(c) The decision was an improper exercise of a power confirmed [sic] by the Migration Act and the Regulations. 1(d) The decision involved an error of law. 1(e) That the decision was affected by jurisdictional error. 1(f) That the person who made the decision failed to make a finding that was an essential pre-condition to performance of his duty.' 7 In the applicant's submissions filed in support of that application, the applicant submitted that the constitutional writs should issue: '[O]n grounds that the Tribunal committed jurisdictional error: 2.1 by asking the wrong question in relation to whether the Albanian State was willing and able to protect the applicant from violence perpetrated by non-State actors …; and 2.2 by asking the wrong question or ignoring relevant material in relation to whether the applicant's fear of being "trafficked" for a Convention reason was well-founded.' 8 Shortly before the hearing of the application the applicant filed an amended application which contained the following grounds: '1. The decision of the Tribunal was invalid and constituted a failure to exercise the power vested in it by law because the Tribunal: 1.1 erred in finding that the government of Albania was both willing and able to provide the necessary level of protection to the applicant against threats of persecution by non-State agents in circumstances where it: (a) erred in asking whether "institutional structures" such as the People's Advocate, the "Network against Gender Violence and Trafficking" existed, etc, rather than asking whether there was an appropriate criminal law, and the provision of a police force and justice system, which made such violent attacks by the persecutors punishable; (b) failed to consider whether such a police force and justice system were reasonably effective and impartial, and willing to enforce that law. 1.2 erred in finding that "there is not a real chance of the applicant being trafficked … because she belongs to a particular social group" in circumstances where it: (a) failed to consider the applicant's claim that she would be abducted or kidnapped by the traffickers, as opposed to being sold to them by family members or lured by false promises of marriage; (b) found that "trafficking of women [is a] significant problem […] in Albania"; (c) ignored relevant material, that it accepted, that "the government of Albania does not meet the minimum standards for the elimination of trafficking"; (d) ignored relevant material, that it accepted, that "the police were often involved directly or indirectly in trafficking"; and (e) ignored relevant material, that it accepted, that 75% of Albanian women who are trafficked are not minors.' 9 Leave was given to amend the application. 10 The applicant is an Albanian Catholic woman born on 8 March 1953 who has never married. She attended school from 1965 to 1973 and from 1973 to 1999 she worked on a farm as a labourer and cleaner. 11 She said that she was the youngest of seven children of a very poor family. Her father died when she was about 20 years of age. He left his house to her brothers. Two of her brothers and their families occupied the house whilst the other two brothers married and established their houses elsewhere. She remained in the family house with her mother. 12 The two brothers with whom she lived left Albania in 1996 and 1997, and her mother joined the second brother shortly after he left. 13 She was left with a small room in the house. 14 The remainder of her siblings left between 1995 and 1999. 15 The applicant, who has a sister living in Australia, first entered Australia as a visitor in June 1996 and remained until December 1996. 16 The applicant claimed that she was a member of a particular social group, namely, 'single women in Albania without a male protector'. The RRT accepted that claim and proceeded upon that basis. There is no dispute on this appeal that the RRT correctly identified the social group to which the applicant was a member. 17 The applicant said that single women in Albania without a male protector are targets for crime including rape and kidnap. It was her case that members of that social group have been sold into prostitution. She claimed that if she were to return to Albania she would be robbed, raped or kidnapped. Moreover, because of her social position, she would have nowhere to live and would be destitute. 18 It was her case that no one is safe in Albania, but single women especially are vulnerable. 19 In a statutory declaration submitted in support of her application for a visa the applicant referred to her familial relationship and her siblings leaving Albania. 20 She said: '33. I could not return to Albania now. I am a single woman living in a country where single women are treated very badly. In addition I have to say that Albania is a country which is rather out of control at the moment. Killings, murders, rapes and kidnappings occur on a daily basis. Women are a particular target for violence as they are vulnerable. Women are frequently rapped [sic] and are kidnapped and sold into prostitution into countries like Italy and Greece. 34. The situation is particularly difficult for a woman who does not have any male relatives for protection. 35. Most people in Albania have guns now and so it is not difficult for people to commit armed crimes. The police are completely ineffective and corrupt. They are not able to help the citizens and mostly are only interested in taking bribes and making as much money as they can make. The Government cannot protect me either. There is no way that I could go to the police and ask for protection simply on the basis that I am female and therefore in danger in Albania.' 21 At that stage, she made no complaint of any assaults. 22 On 24 May 2001 she submitted a further statutory declaration stating that she wished to explain her reasons for deciding never to marry. 23 She said that when she was nine years old she was raped by the male head of a neighbouring family. She did not tell her family in case it gave rise to a blood feud. 24 She said she first disclosed the rape on 10 April 2001 when she was pressed by her lawyer for a reason for refusing to ever marry. 25 She said that she had since disclosed the fact to her sister but she has consistently refused to disclose the name of the rapist. 26 Because she had been raped she decided she would never marry and, therefore, she rejected her family's entreaties that she should marry. 27 She said that after her brothers left Albania she performed some casual farm labouring work and was subjected to sexual harassment by members of work gangs. She did what she could to protect herself but that did not stop male members of the gangs from approaching her and endeavouring to sexually assault her on a number of occasions. 28 The applicant also provided a statutory declaration of her nephew, also sworn on 24 May 2001. 29 The applicant's nephew deposed in that statutory declaration to circumstances in Albania and said of a single woman: '6. For a female to remain single, whether it is by choice or otherwise is virtually a crime. Any woman who makes this choice will suffer the continual persecution of all of the other people of the community. Girls are life-trained to become married and raise a family. To go against the tradition is unthinkable. 7. Life has always been very difficult in Albania for single women. However, the situation has become more dangerous in recent times. Because of the lack of regulation in Albania, the struggles with economic reform, and the severe poverty, democracy has produced other problems. Crime is one of the biggest problems in Albania, whilst rape and prostitution of single women has become a way of life. We are told that hundreds and thousands of Albanian women have been sold overseas for prostitution and many have been murdered for the sale of body organs. Single women in Albania are easy targets. They are the lowest form of life in Albania and therefore more vulnerable to all forms of sexual abuse and attack.' 30 He further deposed to the likely consequences if his aunt had disclosed the rape to her family. It was his evidence that it was likely to lead to a blood feud. 31 On 29 October 2003 the RRT was provided with a statutory declaration sworn by Ms Pashka Shyti on 27 October 2003. 32 Ms Shyti's family escaped Albania in 1964 when she would have been about eight years of age. She has lived in Australia since she was 13 years of age. She visited Albania in June 2002 and stayed for a week. She said it was extremely dangerous for a woman to go out alone and unchaperoned in Albania. She said, with the benefit of a week's experience in Albania: '6. In Albania the situation for women who do not have the protection of male relatives is dreadful. They can be used up or exploited by anyone. They can be murdered, raped or kidnapped and sold into prostitution. This is fairly common. Women can be taken into the mountains and sold off to anyone. All of these things happen regularly in Albania. It is very common for women to be taken from Albania into other European countries like Italy and sold against their will.' 33 The applicant gave evidence before the RRT. She was examined about statements which she and her sister had made in relation to the applicant's application for a visitor's visa. It is not necessary to repeat the matters upon which the applicant was examined, or the inconsistencies to which she was referred because her evidence was rejected. In rejecting the applicant's evidence, the RRT reminded itself of the matters that it should have regard to before reaching an adverse conclusion on credibility: Abebe v The Commonwealth of Australia (1999) 162 ALR 1 at [191]. 34 The RRT said of the applicant's evidence: 'At the hearing, the applicant's evidence was most unconvincing. The Tribunal found her responses to be evasive and contradictory. She claimed to find it difficult to answer the Tribunal's questions because she was upset and under a lot of stress. The Tribunal notes that in December 1999 a psychologist was of the opinion that the applicant was suffering from a post traumatic stress disorder following the departure of her family members. The Tribunal has taken the psychologist's report into account, even though it was nearly four years old at the time of the hearing. The Tribunal is, however, satisfied that the applicant understood the questions asked by the Tribunal and was given sufficient opportunity to respond to them. She struggled to answer some questions because it was pointed out to her by the Tribunal that her answers were inconsistent with evidence she had previously provided. The Tribunal notes that the applicant was able to understand the country information which was put to her and to argue against it. The Tribunal is not satisfied that the applicant has been completely truthful about the circumstances in Albania.' 35 This review, therefore, must proceed upon the basis that the RRT found that the applicant's evidence was not credible. 36 The matters upon which the RRT accepted the applicant were limited. 37 The RRT accepted that the applicant was an Albanian who had never married. It was also prepared to accept that she was living on her own without family support for a period from January 1997 until she came to Australia in 1999. Lastly, it accepted that she no longer has family members living in Albania. 38 In particular, the RRT did not accept that the applicant was raped by a neighbour as a nine year old. It did not accept her explanation for failing to tell her family of the circumstances of the rape. 39 The RRT rejected the applicant's evidence that after January 1997 she did not leave the house in which she lived in Albania because she was frightened to do so. It found that account inconsistent with a claim in her statutory declaration that she continued to work on farms after her brothers left. 40 The RRT did not accept that the applicant was sexually harassed in the past. Nor did it accept that she feared that she would be sexually harassed or assaulted in the future. 41 The RRT found that the applicant had fabricated her claim of sexual harassment to strengthen her application for a protection visa. 42 The RRT found that the applicant was not persecuted for a Convention reason at any time after 1997 when she was living alone in Albania. 43 Those findings mean that the RRT rejected as untruthful the whole of the applicant's account of the matters which she said gave rise to her fear of persecution. 44 The RRT considered the country information. 45 The RRT accepted that Albania is a male dominated society 'and that women who are unmarried and do not have the protection of male relatives have characteristics in common, and would be cognisable in their society and set apart from it'. 46 Therefore, the Tribunal accepted that 'single women in Albania without the protection of male relatives' do constitute a particular social group under the Refugees Convention. 47 Although the RRT found that single women in Albania constituted a particular social group and would be subject to discrimination, it rejected the applicant's case that the discrimination would be so severe as to constitute persecution of single women without male protection. It said: 'The Tribunal accepts that there is traditional discrimination against women generally in Albania and that single women without the protection of male relatives would be regarded negatively by society as a whole and could be the subject of malicious gossip. The Tribunal does not, however, accept that the combination of gender discrimination and social disapproval amounts to a level of harm which is of a severity such as to constitute persecution of single women without male protection such as the applicant. Albanian law does not single out women without male protection for discriminatory treatment, such women are not prevented from undertaking employment, they have the right to own property, to vote and to avail themselves of educational opportunities. Government and non-government organisations are cognisant of the situation of women in this position and are available to provide assistance to them.' 48 In the case of the applicant, the RRT found that she did not face a real chance of being sexually assaulted, or trafficked, or subject to any other form of persecution because of her membership of that group. In particular, the RRT rejected the applicant's case that she was at risk of being trafficked for sexual exploitation or in order to harvest her organs. 49 It did so because it found that trafficking was promoted by family members. The applicant is not a member of the group who is at risk for trafficking. Those at risk are children and orphans who are abducted and sold by family members. The applicant is 50. She has no family in Albania. 50 In relation to her complaint that if she were to return to Albania she would be robbed because she would be perceived as a relative of wealthy relatives in Australia, the RRT said that it accepted that there was a higher level of criminality in Albania. However, if she were robbed because of her own wealth, or a perception of her family's wealth, that would not be for a Convention reason. 51 In conclusion, the RRT said: 'Taking into account the above, the Tribunal finds that the applicant has not been persecuted in the past for a Convention reason and finds that if she were to return to Albania now or in the reasonably foreseeable future, there is not a real chance that she would be harmed for reason of her membership of a particular social group or for any other Convention reason. The Tribunal finds that the applicant's fears are not well-founded.' 52 Whilst that would have been enough to dispose of the application for review, the RRT did also consider the ability of the Albanian authorities to provide protection for the applicant if she were to return to Albania. It found that such protection was available which would remove any real chance of persecution for any of the reasons advanced by the applicant. 53 The RRT found that although the level of violence directed to women in Albania is a serious problem and that single women without male protection are at greater risk, the Albanian authorities 'have acknowledged that violence towards women is a problem and they have created institutional structures and put in place proper police and judicial procedures to address gender-related violence'. In particular, the RRT found that 'the Albanian authorities would be able and willing to provide protection sufficient to remove a real chance of persecution of the applicant if she feared she was at risk of being sexually assaulted or subjected to a criminal attack because she was a single woman without male protection'. 54 In summary, therefore, the RRT, whilst accepting that the applicant was a member of a particular social group, namely, single women in Albania without male protection, found: (a) that the applicant's evidence was not credible or reliable; (b) that she had not been subjected to a rape at the age of nine; (c) that she had not been subjected to sexual harassment; (d) implicitly that she did not fear that she would be persecuted for a Convention reason if she were to return to Albania; (e) that she did not face a real chance of being trafficked for sexual exploitation or for her organs; (f) that if she did have such a fear, it was not well-founded; (g) that if she did have such a fear and it was well-founded, the Albanian authorities would be able to protect her; For the reasons in (d), (e), (f) and (g), she was not entitled to protection. 55 On this appeal, the applicant referred to the reasons of the RRT where it said: 'Noting the information set out above, the Tribunal is satisfied that the Albanian authorities have acknowledged that violence towards women is a problem and they have created institutional structures and put in place proper police and judicial procedures to address gender-related violence. Single women without male protection are not excluded from accessing these services. The Tribunal finds that the Albanian authorities would be able and willing to provide protection sufficient to remove a real chance of persecution for the applicant if she feared she was at risk of being sexually assaulted or subjected to a criminal attack because she was a single woman without male protection.' 56 She said from that, that the RRT implicitly found: '6.1 the applicant had a fear of being harmed, in the form of violence and/or sexual assault by non-State actors (this was claimed at CB 198.8, 201.1, 204.6); 6.2 the non-State actors were motivated to harm the applicant by reason of her membership of a particular social group, single women without male protection; 6.3 by reason of this motivation, the harm was persecution for a Convention reason; but 6.4 the fear of persecution for a Convention reason was not well-founded, because the Albanian State was able and willing to discharge its obligation to protect its citizens; and 6.5 the applicant's unwillingness to seek the protection of the Albanian State was not justified.' 57 In my opinion, there were no implicit findings of the kind in paragraphs 6.1, 6.2 and 6.3. Indeed, any such findings are contrary to the express findings of the RRT to which I have referred. 58 The applicant's case before the RRT failed because first, she was not believed; secondly, she did not have a fear of persecution; thirdly, such a fear, if held by her, would not be well founded; and, fourthly, in any event, the authorities could protect her. 59 To take the passage referred to out of context is to distort the RRT's reasons by ignoring those reasons. 60 The applicant argued that the RRT found, as stated in paragraph 6.4 of the submission, that the fear of persecution was not well founded because the Albanian State was able and willing to discharge its obligations to protect its citizen. 61 That, in my opinion, was not the reasoning of the RRT. It found that the applicant had not been subject to persecution and did not fear that she would. In those circumstances, the question of State protection was irrelevant. 62 However, as I have said, the RRT did consider the question of State protection as an alternative on the assumption that she had such a fear and it was well founded. 63 In doing so, it examined the objective facts from the country information and found that the Albanian authorities have created institutional structures and put in place proper police and judicial procedures to address gender-related violence. In proceeding in that manner, the RRT acted in conformity with the decision of the High Court in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1. 64 The applicant put as an alternative argument that the country information before the RRT did not support a finding that the Albanian authorities could protect the applicant. 65 This Court is not permitted on an application such as this to review the merits of the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 at 293; SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; STKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 251 at [20]. 66 There was evidence to support the finding made by the RRT. 67 In any event, even if the RRT was wrong about its finding that the authorities were able to protect the applicant against persecution, that does not assist the applicant to obtain orders for the issue of the constitutional writs. The applicant's case failed because the applicant did not establish that she either feared persecution or that the fear, if held, was well founded. 68 The applicant argued that the RRT's finding in relation to people trafficking was not supported by evidence, so that it may be inferred that the RRT failed to apply the proper test for determining that there was not a real chance of the applicant being trafficked for a Convention reason. The RRT's finding was in the following terms: 'The Tribunal does not accept that the applicant is at risk of being trafficked for sexual exploitation or in order to harvest her organs. The country information discussed above indicates that the number of Albanians being trafficked is declining following the introduction of measures by the government to prevent trafficking and to prosecute those responsible for it. Increasingly, Albanians who are trafficked are children between the ages of 14-17. The people who are abducted or sold are often orphans or sold by family members. Others are recruited because their economic circumstances make them susceptible to the rewards promised by the traffickers. The applicant is a 50 year old woman. As a "single women [sic] without male protection" she is not in a position where she is at risk of her family selling her against her will. She is aware of the dangers posed by the traffickers and having resisted being married in the past, she is not likely to succumb to false promises of marriage from traffickers. The Tribunal finds there is not a real chance of the applicant being trafficked because of her individual attributes or because she belongs to a particular social group comprised of "single women without male protection".' 69 The applicant then took this Court to various aspects of the country information and submitted that there was nothing in that information to support the finding made by the RRT that the only means by which the applicant would be at risk of being trafficked was from her family, or being lured by false marriages. 70 The applicant has again invited this Court to enter into a merits review in respect of this ground. 71 This Court cannot conduct such a review. If it could, however, the country information, in my opinion, supports a finding that the applicant would not be at risk of being trafficked for either of the reasons mentioned, because there was no evidence to support a claim that women of the applicant's age were at risk. 72 In my opinion, the application for review should be dismissed.