SVVB v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicants are husband and wife. They have sought a review of a decision of the Refugee Review Tribunal (RRT) dated 15 March 2004 of which they were notified on 2 April 2004. 2 The applicants claim that the RRT fell into jurisdictional error in making its decision, that the decision should be quashed and the matter remitted to a differently constituted RRT for hearing. 3 The applicants were found to be nationals of Albania by the RRT. They arrived in Australia on 27 February 2002. On 21 March 2002 they lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (the Act). On 29 May 2002 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) refused to grant the visas. On 25 June 2002 the applicants applied for a review of that decision. 4 The RRT affirmed the decision of the delegate of the Minister not to grant a protection visa. 5 The husband claimed that he had been a member of the Democratic Party in Albania since 1991 or 1992. 6 The husband said that he joined the Democratic Party when he moved back to his village. He was not able to explain which branch of the Party he had joined. He said there were two main parties in Albania, the Democratic Party and the Socialist Party. He said he had chosen to join the Democratic Party because he had suffered under the hands of the Communist Party. He said that the Democratic Party was in power from 1992 for a period of four years during which they had maintained law and order. He said that he had left his membership card in his village. 7 The husband said that he was assaulted in 2001, about 20 days before the elections in that year, because, he said, he was a member of the Democratic Party. He said that he left Albania because he feared that, as a member of the Democratic Party, he would suffer persecution. He also offered as a reason for leaving that his wife could undergo IVF treatment. 8 The husband was asked by the RRT why he had not mentioned in his application for a visa when coming to Australia the fear generated by his membership of the Democratic Party. He said that he had not mentioned this matter in any of his visa applications but asked how he could have done so. 9 The husband said that he would not be able to return to Albania and that, if he did, they would take all his money and he would be locked up. 10 His wife also gave evidence before the RRT. She said that they were not safe in Albania and that was the reason for leaving, although they also left 'to obtain treatment for children'. She refused to elaborate on her evidence. 11 The husband's brother also gave evidence and the RRT described him as 'extremely aggressive and argumentative'. 12 After the hearing, the RRT was provided with a letter from Dr Luk Rombauts which stated that he had been treating the applicants for infertility since October 2000. 13 The RRT found: 'Based on all of the above I am not satisfied in any way that the applicant was ever an active member of the Democratic Party or a member of its committee at a local branch level. Whilst I accept that the applicant has been a supporter of the Democratic Party and that he may at some point have joined the party as a member I find that he was not an active member, that he has never been a member of the Democratic Party committee in his local branch and that he has never had a profile of an active or well known Democratic Party activist.' 14 The RRT did not accept the applicant's evidence of his involvement with the Democratic Party. In particular, it found he was not an active member nor had he ever had such a profile. The RRT disbelieved the husband's claim that he had been detained and beaten by the police in 2001. The RRT found his evidence in relation to this incident to be lacking in all credibility. 15 The RRT found: 'I therefore find that he was never detained by Albanian police for his political beliefs, including any claim that he was detained when on his way to a rally organised by the Democratic Party anytime in 2001. I also find that he was not beaten by police or asked for money to be released from police detention at any time for any purposes in connection with his membership of the Democratic Party or for his political beliefs.' 16 It found: 'The applicant has given evidence that apart from the alleged incident in 2001 he has not suffered any other harm or problems in the past in Albania due to his political opinion or his membership of the Democratic Party. As I have already found that this incident did not occur I find that the applicant has not suffered any harm in Albania in the past for his political opinion or for any other Convention related reason.' 17 The RRT also found that the wife had not been harassed by the police in any way and had not suffered any form of harm in the past in Albania because of her political beliefs or for any other Convention related reason. 18 The RRT addressed the husband's claim that if he were to return to Albania in the reasonably foreseeable future he would be subject to persecution for his political opinion and for his membership of the Democratic Party. In addressing that matter, of course, the RRT reminded itself that it had already found that the husband was not a high profile member of the Democratic Party and had not suffered any harm in the past in Albania for any alleged or imputed political opinion. 19 It therefore found: 'Based on all of the above, I therefore find that the [sic] if he were to return to Albania today or in the reasonably foreseeable future there is not a real chance that the applicant would be killed, harassed, seriously harmed or otherwise persecuted for his political beliefs or for any other Convention related reason.' 20 The husband's case before the RRT failed because he was not believed on the premise upon which his case was based. His claim was that he had suffered, and would suffer, persecution because he was a member of the Democratic Party. His claim that he was a member of that Party was rejected. In those circumstances, his claim had to fail. 21 The husband was not believed. Once the RRT found that it could not accept the husband, his claim was doomed to fail. The question of credit was one for the RRT itself. 22 The husband contends on this application that the RRT fell into error in failing to address the question of whether or not the State could protect him if he were to return to Albania. 23 The argument, in my opinion, is misconceived. The question of whether or not the husband could be protected by authorities in Albania could not arise if the RRT concluded that he was not likely to be subject to persecution. There was nothing to protect him from. 24 This case is, in all respects, similar to Applicant A148 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 566. 25 In Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487; [2004] HCA 18, McHugh J said at [88]: ' Whether the tribunal's finding on future persecution was correct in fact is beside the point. It was a finding of fact that was not reviewable in the Federal Court. Having found that the husband and, through him, his wife did not have a well-founded fear of persecution, the tribunal was not required to determine whether Ukraine had the ability in a practical sense or otherwise to eliminate acts that harmed Jehovah's Witnesses. The Full Court erred, therefore, in finding that the tribunal had fallen into jurisdictional error.' 26 In those circumstances, the claim that the RRT failed to address that issue must fail. 27 In my opinion, the application must be dismissed. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.